Volume 80 — Texas Reports

<p>The opinion gives a sufficient statement.</p>

<p>1. Specifications in Building Contract.—In a building contract the specifications gave the dimensions of iron columns to be used in the front, using the following expression, “The above numbers refer to Pullis Bros’. Catalogue.” It was shown that the contractor had the work cast of the dimensions and pattern “No. 47” of that catalogue. Held, it was competent and relevant to prove that -the columns furnished were substantially like Pullis’ No. 47, and that the pillars so furnished were of dimensions indicated by the base as shown in the specifications, although not made at the factory of Pullis Bros.</p> <p>2. Same — Construction.—We think it clear by the use of the expression, “The above numbers refer to Pullis Bros’. Catalogue, ’ ’ the parties did not contract for the use of columns made by Pullis Bros, to the exclusion of those made by any other manufacturer.</p> <p>3. Evidence — Practice in District Court.—It was competent to allow, a piece cf a broken cast iron column to be exhibited in evidence to the jury. It was within the discretion of the court to permit it to be taken with them into the jury room, the testimony being relevant to the issue.</p> <p>4. Substantial Compliance with Specifications.—It was objected to the charge that it authorized a recovery by the plaintiff upon its showing a substantial compliance with the terms of its contract, for breach of which by the defendant the suit was brought. Objection was based upon the proposition that a literal performance was required in each and every particular. Held, such precision can not we think be demanded in the. performance of contracts or any other affair of life.</p> <p>5. Same.—-If there is an honest effort to perform the contract according to the letter and it is substantially fulfilled the builder should be entitled to the reward of his labor, although he may not have in every instance complied with its terms literally in every punctilio. A substantial compliance without any intentional variation in all cases should be considered as a full performance of a condition whether precedent or subsequent. Smith v. G-ugarty, 4 Barb., 620.</p> <p>6. Charge.—A building contract the basis of litigation was lengthy, confused, and apparently contradictory. There was testimony to items about which it was disputed whether they were provided for in the writing. No explanatory charge was asked upon the controverted parts of the specifications. Held, a charge was proper submitting to the jury: “Where there is a conflict if any in these (specifications) this should be reconciled in a practical workmanlike manner, so as to arrive at the fair and reasonable intention of the same.”</p> <p>7. Architect’s Certificate as Basis for Payment.—In the building contract provision was made for a superintendent, upon whose certificates payments were to be made. When without fault of the contractor the architect or superintendent refuses Ms certificate, he can not thereby prevent a recovery by the contractor for damages suffered by him from the breach of the contract by the employer.</p> <p>8. Forfeiture Stipulated in Building Contract.—It was stipulated that “ upon failure by the contractor to comply with the requirements of the contract the owner after giving ten days notice of his intention to do so, to be served upon the contractor, either could complete the contract himself or avoid it; in which latter case all work done or material on the ground should become the property of the employer;” and further: "1 'Any material condemned must be immediately removed from the building and grounds and any work that may be condemned must immediately be made good. ” It is held, the contract thereby meant that whenever a cause for forfeiture should occur it should then promptly be declared and proceeded with, or in the language of the contract the faulty material should have been then “ immediately removed from the building” and the condemned work “immediately made good,” or the failure to do so considered as an acquiescence and waiver, at least of the right to forfeit for that part of the undertaking.</p>

<p>The opinion contains a statement.</p>

<p>1. Deed for Right of Way to Railway Company.—The ordinary effect of the sale of land to a railway corporation for the purpose of being used by it to construct and operate a railway is to surrender to it and discharge all demands for damages resulting from the construction of the road upon the land so conveyed.</p> <p>2. Same-—Case in Judgment.—The defendant railway company exhibited in defense a deed from the plaintiff made after the railway, including its switches, had been constructed, conveying to it “ the right of way for the construction and operation of its railway one hundred feet wide on and across all of his lands in and near Flatonia,” * " * describing the property conveyed as “ all those certain tracts or parcels of land, to-wit, one hundred feet in "width through all of my land in and near the city of Flatonia, in Fayette County, Texas, * * * fifty, feet on each side of the center of the track of the said San Antonio & Aransas Pass Railway track as now graded, and it is understood that this consideration covers all damages to trees, crops, fences, and houses upon said right of way by virtue of the construction of said railway over said tract.” Plaintiff sued for damages to town lots abutting upon the street along which the track was operated. Held:</p> <p>1. There is nothing in the deed to relieve it from the usual operation of such deeds.</p> <p>2. Usually such deeds include, without express mention, damages done to “trees, crops, houses, and fences” standing on the land conveyed, and generally the express mention of such things as being included might be construed to show an intention not to include other damages.</p> <p>3. But as in this case the road had been constructed and the damage inflicted before the conveyance was made, the claim for damages would not necessarily be satisfied by the subsequent conveyance to the railway company. For that reason it was proper to mention that the surrender of a claim for such damages was included in the conveyance.</p> <p>4. The form of the deed being thus accounted for, it will not limit or control the effect that would generally be given to the conveyance of land for a right of way for a railway.</p> <p>5. It would be incumbent to show that the land damaged was without the limit of fifty feet from the center of the track.</p>

<p>The opinion gives a statement.</p>

<p>The opinion gives a statement.</p>

<p>1. Negligence of Party Injured.—We are of opinion that as a matter of fact at least it is negligence for one to go upon a railway track and stand there until he is knocked off by an engine.</p> <p>2. Same—Deafness.—The fact that the deceased was deaf made it all the more negligent to risk his life by standing upon the railway track without exercising his sight to avoid danger from an approaching train.</p>

<p>The opinion contains a statement.</p>

<p>The opinion gives a statement.</p>

This is an appeal from a judgment for $40 actual and $40 exemplary damages, rendered against appellant for placing a telephone pole upon the premises of appellee, cutting an awning and digging up the sidewalk in so doing. The opinion gives a statement.

<p>This is an appeal from a judgment for Harriett against appellant for $5000 damages for personal injuries caused plaintiff by negligence of defendant in a collision of trains upon its road.</p> <p>The opinion gives a'statement of the case.</p>

<p>Fact Case—Absence of Negligence by Railway Company.—Appellant sued for damages for personal injuries alleged to have been caused by the negligence of the appellee. The evidence shows that appellant was in the switch yard and on one'of its trades in advance of a standing Car which was moved by being struck by other cars placed upon the track. It was at a place where employes of the railway company had no reason to expect persons to be, and especially so at the time (half-past 4 a. m.) when he was injured. The morning was foggy, and it was not shown that the employes were wanting in due care. A verdict and judgment for the defendant can not be set aside as against the evidence.</p>

The statement of this case by the trial judge in his charge is here given. ‘ ‘This suit is brought by Chesley McClain against the railway company to recover §15,000 actual damages which plaintiff alleges he has sustained by reason of personal injuries received by him while in' the employment of defendant as fireman on one of defendant’s engines'.

<p>The opinion gives a statement.</p>

<p>1. Duty of Master to Employe.—A railway company is responsible to one of its servants for injuries sustained without fault or negligence on liis part from its negligent construction or erection of an appendage of its road which subjects its employes to unnecessary hazard and danger, and which the injured party could not reasonably have anticipated, and of which he was not informed.</p> <p>2. Fact Case — Negligence. — See facts sustaining a verdict for damages for personal injuries caused by a collision with a switch stand placed too near the track.</p>

<p>The opinion gives a statement of the case.</p>

<p>The opinion contains a statement.</p>

<p>The opinion gives a statement.</p>

<p>Error from Harris. Tried below before Hon. James Masterson.</p> <p>The opinion gives a statement.</p>

<p>The opinion contains a statement.</p>

<p>1'. Measure of Damages.—Where property Ms been illegally seized under process and its release is obtained by the payment of a sum of money, the amount paid for the release is the measure of actual damages for the seizure.</p> <p>2. Exemplary Damages.—Where goods are seized under a writ of sequestration sued out upon a debt paid, no pretense of mistake being made on the part of the plaintiff in the sequestration, such facts authorize the finding of exemplary damages at suit of the owner of the goods.</p> <p>3. Conflict of Testimony.—The plaintiff testifying to the payment of the debt made the basis of the writ of sequestration, and one of the defendants testifying that it was not paid, the issue being fairly submitted to the jury their finding that it had been paid before the writ was issued will not be set aside.</p> <p>4. Voluntary Payment. —The payment of money made to secure the release of property wrongfully seized is not a voluntary payment, and can be recovered.</p> <p>5. Charge — Sequestration. — In a suit for damages for the wrongful seizure of goods under a writ of sequestration the court charged the jury: “If you find that the plaintiff had not paid the amount she actually owed to defendants, and did not tender any balance she may then have actually owed, and if Clark & Loftus or any of them for the firm sued out a writ of sequestration, and if such sequestration was not wrongfully sued out, then you -will find for the defendants.” Held, that while it would have been more appropriate for the court to have instructed the jury as to what constituted a wrongful suing out of a writ of sequestration, yet the charge is not incorrect.</p> <p>6. Conflict of Testimony of Witnesses—New Trial.—Where there is sufficient evidence to sustain a verdict and there is opposing testimony directly in conflict with it, and the determination of the conflict depends upon the credibility of the witnesses, the verdict will not be disturbed on appeal.</p> <p>7. Practice—Motion for New Trial.—In a separate assignment of error defendant Clark insisted upon a reversal because of total absence of testimony against him authorizing exemplary damages, insisting that his partner’s malice should not be imputed to him. He had not interposed this in the court below, nor had he sought a new trial upon this defense. JSeld, that the proper practice demands that a party who deems himself aggrieved by the finding of a jury should exhaust his remedies in the trial court.' Not having made the matter complained of a ground for action in motion for new trial the matter will not be revised in this court.</p>

This is a writ of error from a judgment for $5000 damages for personal injuries suffered by plaintiff while in employ of the defendants and through the negligence of the defendants. The facts are given in the opinion.

This suit, being an action of trespass to try title, was brought by appellants in the District Court of Galveston County March 26, 1889, to recover lots Hos. 13 and 14, in block 619, and improvements thereon, • in the city of Galveston, Texas, of the alleged rental value of $200 per month, claiming that on December 7, 1888, they as tenants in common with one Charles Schrimpf, setting out their respective interests, were lawfully seized and possessed of said premises, holding…

<p>Cattle Guards.—A railway track was fenced on both sides between two private crossings. No cattle guards were placed. A train wSs wrecked within the space so fenced caused by the engine running upon two cows lying upon the track. The train was running at good speed at the time it left the track, ties giving away. It was not claimed that the ties were not strong enough to support the train as long as on the rails. The engineer on the train was injured and sued for damages. The court directed a verdict for the defendants. Held:</p> <p>1. The fact that the ties were not strong enough to support a train moving at twenty-five or thirty miles an hour when derailed was not evidence of negligence.</p> <p>2. The only purpose had in view by the law in the construction of cattle guards is to protect the inclosures through which the road passes, and absence of the cattle guards as alleged was not negligence or evidence of it.</p> <p>3. The liability to injury caused by the running in contact with animals trespassing on the road is one of the dangers incident to the operation of railways, and may be encountered inside of inclosures having cattle guards as well as’outside.</p> <p>4. The court properly directed a verdict for defendants.</p>

<p>1. Parties.—Suit for land over which a railroad was constructed was brought by the owner against the railway company. Pending the suit the road was placed in the hands of receivers. The receivers were made parties, and objecting it is held that they are proper if not necessary parties to the suit.</p> <p>2. Condemnation Proceedings for Bight of Way.—In a suit by the owner for land occupied by a railway company the plaintiff sold pending the suit. After such sale the railway company reconvened, asking that the right of way through the tract be condemned. The vendees then intervened, asking compensation, etc. Held, that testimony to show the price paid by the interveners for the land was irrelevant, and was properly excluded.</p> <p>3. Opinion Testimony as to Value.—A witness familiar with the locality of a tract of land and its general surroundings, and qualified to give an opinion as to its value, can give his opinion as to such valuq. Opinions of those qualified are admissible to prove’value.</p> <p>4. Condemnation Proceedings.—Value of the land taken and injured in condemnation proceedings should be taken at the time of the condemnation.</p> <p>6. Taking Property.—Strictly there can be no talcing within the meaning of the law (Const., art. 1, sec. 17)' until the party seeking to condemn has been adjudged to be entitled and has paid or secured the compensation fixed. The principle applied to the claim of the railway company which had occupied land several years before obtaining right of way, during which occupation the land increased in value;</p> <p>6. Pact Case—Parties.—Ruby, the original plaintiff, sued the railway company for the land. The railway had been running for several years before suit. He owned the land when the road was built. He had parted with no right in the land or for damages past or future upon condemnation of the right of way. His sale to the intervenors and their fights in the suit did not affect the railway company as to the extent of its liabilities or burdens. Ruby and the intervenors together only can recover what Ruby could, had the sale not been made. '*</p> <p>7. Condemnation—Value. —-Damages for a trespass arising before the purchase would not pass to a vendee by a conveyance of the land alone, but every right in or to the land does; and one who subsequently seeks to take a part of it for public use, for such taking must make to the owner adequate compensation, in the ascertainment of which must be considered the value of the property sought to he condemned and the damages which will be sustained by reason of such condemnation, etc. Rev. Stats., arts. 4193-4196.</p>

<p>1. Refusal of Application for Continuance—Bill of Exceptions.—Without a bill of exceptions showing the application for continuance and the action of the court upon it the action of the trial court in refusing- a continuance will not be revised on appeal.</p> <p>2. Master and Servant — Charge of Court.—In an action by the widow and children of an engineer killed in the sendee and by alleged negligence of the receivers in charge of a railway, the court having charged fully upon the duties of employer and employe, and upon negligence and dne care, the defendants asked the charge: “If the defendants had proper rules and gave proper instructions to employes, and the accident happened by reason of the violation of said rules or instructions by Whitcomb’s fellow servants, defendants are not liable. ’ ’ The instruction was refused, and properly, because it does not fully announce the rule without the qualification “that if the fellow servant or servants who violated such rules and instructions of the master were' unfit and incompetent within the knowledge of the master, and as a consequence the injury occurred;” there being testimony to the unfitness, etc., of the conductor of the colliding train.</p> <p>3. Same—Charge—Fellow Servant.—The defendant asked the further instruction: “If Whitcomb (the deceased) had equal chance to know the character of (con•ductor) Hiss, and the danger of his employment, and failed to notify defendants, he .assumed the risk of the dangers by reason of Hiss’ inefficiency, if he was inefficient, :and plaintiffs can not recover.” This instruction was rightly refused as inapplicable to the testimony. It was not shown that the deceased knew Hiss, or had means of knowing his character, or that it was his duty to inquire into it.</p> <p>4. Master and Servant—Due Care by Master.—An employe not knowing the efficiency of fellow servants, nor having the means of knowing it, has the right to rely upon the implied promise of the railway company (his employer) that it would take proper care that the other servants should be fit and competent for the performance of the duties assigned to them.</p> <p>5. Charge Properly Refused.— The defendants requested an instruction: “If Whitcomb (the deceased) knew of the liability of the rock train to cross the main track and thought from what was told him that he could safely pass the crossing but failed, plaintiffs can not recover.” The principle had been given in the main charge but the record negatived the assumed information, and the instruction was properly refused.</p> <p>6. Assignment of Error.—An assignment, of error that “the verdict is against the law and evidence,” is too indefinite and can not be considered nnless the error is fundamental or imperatively demands a revision to prevent manifest injustice.</p> <p>7. Verdict Hot Excessive.—See facts supporting a verdict for the widow and five minor children for §1500 each, aggregating §9000.</p>

This was an action of trespass to try title instituted by appellee Theodore Ollre against appellant John Jobe in the District Court of Gonzales County on the 15th day of June, 1888, for the recovery of lots Bos. 2 and 5 in block Ho. 6 in the inner town of Gonzales, granted by the town of Gonzales to J. B. Patrick.

<p>Error from Waller. Tried below before Hon. Wm. H. Burkhart.</p> <p>The opinion gives a statement.</p>

<p>1. Street Assessments—Municipal Powers. — In order to enable a municipal corporation to charge the owners of property abutting on a street with the cost of its improvement the power must not only be expressly conferred by law, but the provisions of the law must be strictly pursued.</p> <p>2. Assessments for Street Improvements.—When all the prerequisites of the law (city charter) have been complied with and a contract for street improvements let, and the work done and accepted by the city authorities, it is competent for the city authorities to supply defects and to correct errors in the matter of issuing the improvement certificates provided for, against the abutting property owners.</p> <p>3. Same—Approval of Engineer’s Report. —The contract having been let, the city engineer’s report of lots and lot owners, amounts, etc., to each, was not approved by the city council. This approval was necessary as basis for issuance of the certificates, and without it they were void. *</p> <p>4. ° Same—Amended Report and Approval.—The city charter not determining 'the time within which the engineer’s report made after the hid is accepted shall he approved by the city council, it was competent for them to act after the work had been done, and to make a corrected roll and approve it within a reasonable time after the improvements were completed.</p> <p>5. Amended Engineer’s Report. — The report of the engineer made after the work was done placed the cost of frontage per foot at §1.20, instead of §1.15. The new engineer also certified to the report as correct according to his knowledge and belief. As he had all the facts before him it was competent for him to correct the former report, and his certificate was sufficient.</p> <p>6. Repeal of City Charter. •— By amended city charter the chapter 23 of the amended city charter of 1883 was supplicd by one prescribing a different mode of making street improvements. This however can not be construed as repealing the old section as to existing contracts. The Legislature could not repeal any provision of the old law so as to impair a contract made under it.</p> <p>7. Immaterial Matters. ■— The defendant urged that a controversy had existed between her and the city about the width of the sidewalk fronting on her lots, and that the pavement by the city had extended across the sidewalk nearly to her line, and that planks used in the street pavement and extending upon her sidewalk were of unequal lengths. These matters were irrelevant to the issues arising in the suit upon the' street improvement certificates.</p>

<p>1. Contract for an Article to be Manufactured. — Contracts with regard to the purchase of manufactured articles referred to in Gammage v. Alexander, 14 Texas, 414, relate to personal property in the possession of the manufacturer. The rule does not apply to contracts for the construction of a dwelling house upon land owned or controlled by the purchaser.</p> <p>2. Contract Construed—Levy of Attachment.—A contract was made with a building corporation for the purchase and erection of two portable houses upon land of the purchaser. The building company delivered a quantity of material under the contract for the houses upon the ground, upon which material the purchaser made a payment. The material so furnished was seized and sold under an attachment as the property of the building corporation. In a suit by the purchaser against the plaintiff in attachment for damages for the seizure and sale, held:</p> <p>. 1. As the building corporation could not remove the material without repayment Of the money advanced on it, the purchaser under attachment could get no better right.</p> <p>2. The levy should not have been made by seizure of the material, but by notice upon the purchaser.</p> <p>' 3. As the plaintiff in attachment believed the property liable'for his debt, and the attachment was regularly issued, there was no basis for exemplary damages in the suit by the purchaser from the corporation against the purchaser under the attachment.</p>

<p>The opinion gives a statement.</p>

<p>1. Husband and Wife—Pullman Sleeping Car.—When a berth in a sleeping car is contracted for by the husband either with an express understanding that it is engaged for the joint occupancy of himself and wife or under circumstances that are not misleading within themselves, the refusal to permit such joint occupancy without other reason than the difference of sex, and when such refusal would be a breach of contract, will give the injured party a right for damages.</p> <p>■ 3. Case in Judgment.—Husband and wife were passengers accompanied by his mother. The wife with consent of the husband made a contract and paid for one berth in a sleeping car, while he made one for another. The wife having passed across the aisle from her berth to that of her husband was by the employes on the sleeper ordered back to her own. In an action by the husband for damages, held: Unless the wife acquired by contract the right to occupy at the same time two berths it is evident that the refusal to permit her to occupy the one paid for by her husband would not be a breach of any contract. As no contract was shown for her to occupy more than one berth there was no cause of action showm.</p> <p>3. Duty of Servants in Sleeping Car.—It was the duty of the servants of the appellant to investigate matters apparently showing improper conduct by passengers in the sleeping car; but such investigation should be conducted without rudeness or greater publicity than necessary. Seld, however, that rudeness of manner in-discharging the duty, not accompanied by violence, would not of itself be a cause of action, although it might be considered in aggravation of damages had a cause of action otherwise ■existed.</p>

<p>1. Trial of Right of Property—Immaterial Issue.—The property in controversy was levied upon under three writs of attachment. After the claimant had filed its claim bond the plaintiff in the attachments caused the sheriff to alter his return upon one of the writs so as to show that the property was seized*as the property of the claimant, against whom the writs also ran. The claimant rej)levied and the property was condemned under the attachment. These facts were set up as an estojpel in behalf of the claimant. Held, that exceptions were properly sustained to the plea, as the issue was the ownership of the property at its seizure. This could not be affected by an indorsement on the writ subsequent to the levy. The claimant was not deceived or misled thereby. The facts also were irrelevant and when offered were properly excluded.</p> <p>2. Transfer of Property of a Corporation.—A private corporation was largely indebted and’ was considered insolvent. A new corporation was formed by practically the same men. The new corporation assumed the indebtedness of the first; the stock of the old was transferred to the new company. The property itself was delivered by the manager to the new company with the knowledge and consent of the stockholders of the first but without any action by the board of directors. The property having-been seized by creditors of the new corporation it was claimed by the first. Held, the facts showing the dealings of the two corporations, their directors, and stockholders were relevant, and that the facts were evidence of ownership by the defendant.</p> <p>3. Same.—We can see no good reason why a corporation may not be bound by acts' of acquiescence in a transaction which may be irregular on its face if not prohibited, or which may be in excess of the officer’s power acting for the corporation.</p> <p>4. Agency — Acquiescence.—When the principal, -with the knowledge of the facts, acquiesces in acts done under an-assumed agency, he should not subsequently be heard to impeach them upon the ground that they were done without authority. This applies also to corporations.</p> <p>5. Same.—An express assent is not essential on the part of stockholders to operate as an equitable estoppel upon them. It may be inferred from the failure to promptly condemn the unauthorized but not illegal act and to seek legal redress. See facts held evidencing acquiescence by stockholders in the acts of the manager in transferring by delivery the property of the corporation.</p> <p>6. Evidence to Acts of Private Corporation. —The acts of a private corporation may be shown by other testimony than a record or minute of its proceedings unless the statute declares to the contrary. Its acts may be proved by direct evidence or be inferred from circumstances, e. g., as to election or appointment of a director.</p> <p>. 7. Acquiescence—Evidence.—All of the directors of the Fort Worth Publishing Company were stockholders in the “Investment Company, Limited,” and except one were directors in the latter company. They were all present when the assets of the Investment Company, Limited, were being estimated with a view of the settlement of its debts. At this meeting the property in controversy was included by the parties as assets of the Investment Company at §75,000. A witness was allowed to detail the proceedings. Held, proper, in that the testimony showed an assertion or claim of right to the property by the Investment Company, Limited, the defendant in attachment, and to show acquiescence by the officers of the Publishing Company, the claimant in the adverse claim of ownership in the property.</p> <p>8. Amendment Allowed During Trial.—In the tender of issues upon the trial of the right of properly levied upon under several writs of attachment the amount claimed in one of the writs was stated to be §1076. The writ showed the amount to be §10,076. Objections being made to the writ when offered in evidence the court permitted the insertion of a cipher so as to make the plea correspond with the writ. No postponement was asked nor surprise shown, and no injury appearing this was no ground for reversal.</p> <p>9. Immaterial Testimony.—The issue being whether the property had been conveyed and delivered by the claimant to the defendant in attachment, it was not error ■ to exclude testimony showing that one of the plaintiffs in attachments levied had prosecuted to judgment an attachment against the property as belonging to claimant.</p> <p>10. Charges Given and Refused.—There was evidence of a transfer and delivery of the property by the manager of the Publishing Company to the Investment Company, Limited, under circumstances showing the assent of the other stockholders, and their subsequent acquiescence in and ratification of the same. This phase of the case was fairly presented in the charge of the court. The refusal of instructions upon the relations of stockholders to the corporation and the regular mode of action by the directors in conveying property, etc., was immaterial.</p> <p>11. Sureties of Claim Bond Liable for Costs.—Article 4827, Revised Statutes, prescribes the form of bond which shall be given by the claimant. The costs are expressly provided.for therein. Prior thereto the statute was otherwise. Pasch. Dig., art. 5310.</p> <p>18. Judgment Entry in Trial of Right of Property.—Under article 4843, Revised Statutes, as amended in 1887, it was error to render a joint judgment in favor of the plaintiffs in the attachments levied upon the property. The judgment should have established the rights and privileges of the several parties. The judgment also should have fixed the value of the use of the property in controversy.</p> <p>Or Reheabirg.</p> <p>13. Practice — Attacking Writ.—In trials of the right of property the purpose of the statute (arts. 4833, 4838, 4839, Rev. Stats.) was to secure a trial of the contest as to the right of property, and not of the validity of the writ. We think it was intended that the validity of the writ should not be questioned except by a special plea setting up the grounds upon which its invalidity is claimed. It is no ground for reversal that the writ of attachment which was not attacked by plea was not introduced in evidence.</p> <p>14. Sufficiency of Testimony.—In absence of an assignment of error questioning the sufficiency of the verdict this court on appeal will not consider such question:</p> <p>15. Testimony to Facts Constituting an Estoppel.—What was said and done at a meeting of persons who were stockholders and directors in the two corporations were circumstances legitimate to be proved as tending to show that there was an understanding among all parties that the new company (the defendant in attachment) was to pay the debts of the old Investment Company, including debts it had contracted for the claimant (the Publishing Company), and was to become the owner of its stock, which the old Investment Company claimed to own.</p> <p>16. Practice on Application for Rehearing.—On motion for rehearing in this court it is only errors which may have been committed by the trial court, and which have been assigned, which will be considered. That the court in the opinion attacked may have misapprehended the record of itself is immaterial.</p> <p>17. Immaterial Error in Charge.—An assumption of a controverted fact in the charge when by such assumption a proposition favorable to the complaining party is emphasized and made more prominent is no ground for reversal.</p>

February 9, 1887, W. A. McCall and others brought an action of trespass to try title for one hundred and sixty acres of land against Wm. Trench and wife. The defendants answered not guilty, and set up title under will of Mrs. Eugenia McCall to Mrs. Trench, her daughter, alleging that it was the separate property of Mrs. McCall.

<p>The opinion gives a sufficient statement.</p>

<p>The opinion contains a statement.</p>

<p>Fact Case. —See testimony held sufficient to support a verdict sustaining the genuineness of a transfer attacked for forgery.</p>

<p>1. Confederate Certificates, Location of. —• The Act of 1881 granting land to Confederate soldiers provided that “the certificates granted under the provisions of this act shall be located as follows: The locator shall also locate a like amount of land for the benefit of the permanent school fund before either shall be patented, and such locations shall be made on any of the public domain of Texas not. reserved by law from location.” This act evidently contemplates that two surveys of twelve hundred and eighty acres each be made and field notes returned to the General Land Office. In all other statutes giving to individuals or corporations the right to acquire land coupled with a requirement that a like quantity shall be surveyed, for the school fund it has been contemplated that the surveys which the owner of the certificate shall have, and the survey for the school fund under the same certificate, shall be contiguous; and there is nothing in the act under which the Confederate scrip was issued which shows a contrary intention.</p> <p>2. Same.—It never was contemplated that the owner of such a certificate might for himself select lands in one locality and locate in some other part of the State lands for the school fund. Such locations (not contiguous) are not made according to law. (See example.)</p> <p>3. Patent upon Illegal Surveys.—If suit he brought upon lands patented hut upon illegal surveys, the certificate being genuine, no one not claiming under some right existing prior to the issuance thereof could question their validity.</p> <p>4. Illegal Survey—No Joint Ownership.—The holder of the certificate locating one survey for himself and that for the school fund in another county in suit upon the former can not claim to hold it one half for himself and half for the school fund. It was his duty to segregate each from the body of the public lands.</p> <p>5. Location and Survey.—Article 4795, Revised Statutes, constituting land scrip and survey sufficient to maintain trespass to try title applies to legal surveys only.</p> <p>6. Return of Field Notes and Certificates to Land Office.—Holder of Confederate land scrip located and caused surveys for. twelve hundred and eighty acres each. He caused field notes to be returned to the General Land Office. The certificates he withdrew from the surveyor’s office for use in having surveys for the school fund in another county upon them. Sold, by so doing and failure to return the certificates to the General Land Office within the time prescribed the surveys were forfeited and became of no effect.</p> <p>7. Statutes Construed Touching Locating Land Scrip.—Revised Statutes, articles 3895, 3906, 3890, 3902, 3909, 3887, 3888, 3889, 3810, discussed and construed. They evidence that it was not intended when a survey with the certificate by virtue of which it was made have been filed in the General Land Office that the certificate shall ever go out again for any purpose. It is equally forbidden that the surveyor part with the certificate after making survey upon it save to forward it to the Land Office.</p> <p>8. Failure to Return Certificate in Twelve Months. — Inasmuch as the law prescribes that certificates shall he returned to the General Land Office within twelve months after the survey, the failure to do so is fatal to any right under the survey; such right is not protected or failure to return excused by attempting to use them elsewhere, if it were legal to do so, whereby they were not returned as they should have been.</p> <p>9. Limitation to Certificates.—Section 2, article 14, of the Constitution prescribes, that “all genuine land certificates hereafter issued by the State shall be surveyed and returned to the General Land Office within five years after their issuance, or be forever barred.” Certificates issued December 2, 1882, were barred July 16, 1889, on day of the trial. There was no legal obstacle to their return to the Land Office and they are no longer a basis of any right.</p>

In the main the pleadings and issues of this case as well as the summary of the evidence are fully and fairly stated in the able brief of appellant’s counsel. Our statement of- the case will be drawn largely from that brief. On the 27th of May, 1886, appellant sued appellee for the recovery of thirteen and six-tenth acres of land and for damage and rénts, and sued out a writ of sequestration, by Adrtue of which the sheriff took possession of the land.

<p>1. Waiver of Stipulated Limitation for Claim for Damages.—Suit against a railway company for injury and loss caused by its negligence to cattle shipped by plaintiff upon its road. The freight contract contained a clause requiring suit within forty days from the time damages occurred. The plaintiff in replication to. a plea of this limitation, the suit not having been filed within the stipulated time, alleged that “within three days after the accrual of the cause of action, and on divers days down to and including October 27, 1884, the defendant by and through its agents represented to plaintiff that the defendant would adjust and pay his claim for the cattle killed and injured, and induced him to put his claim for much less than the real damage, upon a statement made by defendant through the local agent of defendant at Lampasas to the effect that defendant would pay said claim without suit if plaintiff would put it in for a reasonable sum,” * * * alleging refusal to pay October 27 and suit filed November 11, 1884. Held, that the replication was sufficient. 63 Texas, 404.</p> <p>2. Same.—See facts held insufficient to sustain the allegation of waiver of time and estoppel.</p> <p>3. Shipment of Cattle Upon Railway.—Liability for safety of cattle shipped upon a railway begins when they are received for shipment into its stockpens prepared by it in aid of the shipment.</p> <p>4. Stockpens—Duty of Railway Company.-—Article 4236, Revised Statutes, prescribes that railway companies shall erect at each station * * * “suitable buildings or inclosures to protect produce, wares, and merchandise, and freight of every description.” This includes stockpens for protection of cattle tendered for shipment. Such pens so required must be sufficiently safe for the purpose indicated.</p> <p>5. Contributory Negligence.—If a stockpen was unsafe and the owner of cattle placed therein could have known its condition, and loss follows from its detects the railway still is responsible for damages from such loss. The road can not absolve itself from liability by permitting its pens to become so dilapidated as to be recognized as unsafe by the shipper.</p> <p>On Rehearing.</p> <p>6. Remittitur—Practice in Supreme Court.—The limitation of forty days in the shipping contract did not apply to the loss of cattle from the stockpen. -The jury having found the item of loss by the escape of cattle from the pen separate from the other loss, and the plaintiff having remitted as to all but the sum found for cattle lost from the pen, the case is reversed and rendered for the plaintiff for such sum and interest.</p>

<p>1. Foreclosure Without Proper Parties.—It has been repeatedly decided by this court that where a mortgagor’s equity of redemption or legal title to land is sold to another that a suit to foreclose the mortgage against the mortgagor without making the purchaser of his title a party, and a decree of foreclosure and sale, have no effect upon the title of such purchaser when there exists either actual or constructive notice of his purchase.</p> <p>2. Same.—While the foreclosure proceedings against the mortgagor do not conclude the purchaser’s right to redeem, they do not free the land from the lien. The purchaser’s title is not strengthened by the foreclosure proceedings to which he was not a party.</p> <p>3. Same—Good as a Personal Judgment.—While such foreclosure proceedings, against the mortgagor after he had parted with the equity of redemption are defective as a foreclosure, still the judgment is good as a personal judgment against the mortgagor, ascertaining the amount of the claim and removes the operation of statutes of limitation upon the original claim or cause of action.</p> <p>4. Subrogation.—The purchaser at sheriff’s sale under the decree of foreclosure, when sued by the holder of the equity of redemption not concluded by defective foreclosure suit, may reconvene by pleading his title by subrogation to the mortgage, and have the land subjected to the equities held by him.</p>

<p>1. Ancient Instrument.—If the instrument is thirty years old, free from suspicion, comes from the proper custody, and has been in some manner acted upon, the requirements are fulfilled which make it admissible as an ancient instrument.</p> <p>2. Same.—See facts held sufficient to authorize the admission of a paper as an ancient instrument.</p> <p>3. Certificate of Clerk to Registration of Deed.—The instrument in this case was recorded March 10, 1838. The law of 1836 then in force did not require, as later laws on this subject seem to do, that the certificate of the recorder to the registration of deed should be authenticated by his official seal. Waters v. Spofford, 58 Texas, 121.</p> <p>4. Declarations in Disparagement of Title.—Declarations made by a former owner of land when in his possession are admissible against his subsequent grantee. See example.</p> <p>5. Charge—Preponderance of Evidence.—There was some testimony to the fact that Harris paid a valuable consideration upon the contract. There was none against it. Held, that the court could have treated the issue as not disputed, and for stronger reason could submit it to the jury to be acted upon and found upon the preponderance in the evidence.</p> <p>6. Stale Demand—Resulting Trust.—Payne sold two-thirds of his headright certificate to Harris, executing an obligation for title. Subsequently the certificate issued and land located and patented under it in name.of Payne. It being shown that Harris paid Payne for the certificate, the issuance of the patent conveyed the mere legal title to Payne in-trust for Harris or his heirs. The trust relation continued until some act of repudiation of it brought to the knowledge of Harris or his heirs.</p> <p>7. Same—Coverture.—To the plea of stale demand the plaintiffs pleaded coverture. It was shown that the heirs of Payne had first asserted title adverse to the Harris heirs subsequent to the marriage of the plaintiffs. Held, that the coverture avoided the plea of stale demand.</p> <p>8. Constructive Trust.—In cases of constructive trusts which presuppose an adverse right from the beginning, limitation will run from the time the beneficiary should have discovered his right of action.</p> <p>9. Certificate of Privy Acknowledgment by Married Woman.—A certificate of acknowledgment by a married woman approved as sufficient. It is as follows: “And the said Emma J. Simpson, after being examined by me privily and apart from her said husband, and having said instrument fully explained to her, she acknowledged it to he her own free act and deed, and that she did not wish to retract it.” Duly certified. This was a substantial compliance with the statute. Belcher v. Weaver, 46 Texas, 294.</p>

<p>The opinion states the case..</p>

<p>The opinion gives a statement.</p>

<p>1. Mechanic’s Lien.—A mechanic’s lien can not be established against the owner of land without his knowledge or consent.</p> <p>2. Improvements Attach to the Realty.—Houses erected upon land without the knowledge or consent of the owner go with the ownership of the soil.</p> <p>3. Case in Judgment—Ratification.—Jane Cummings contracted with plaintiff for the work, etc., on her own account and not as agent of her son (the owner of the lot), and therefore there was no acting as his agent for him to ratify by appropriating the benefit of the contract to his own use. Even if his mother had claimed to act as his agent, but without authority, the doctrine of ratification would not apply, because his taking possession of the improvements must then have been referred to his ownership of the land.</p>

<p>The opinion contains a statement.</p>

<p>The opinion gives a statement.</p>

Suit was filed August 23, 1883, being an action of trespass to try title to the Wm. T. Evans one-third league tract. Both parties claimed under Evans. The plaintiff Eoberts claimed under an instrument of date June 11, 1841, which is set out in the opinion of Judge Collard.

<p>Error from Jefferson. Tried below before Hon. W. H. Ford.</p> <p>The opinion contains a statement.</p>

<p>1. Spanish Title—English Field Notes—Archives.—The English field notes being the original and being preserved along with the Spanish copy of them as an archive, and the title itself not containing the field notes but referring in that respect to the report of the surveyor, we think it was proper to treat them (the English field notes) as part of the title, and not as extraneous evidence changing or contradicting it.</p> <p>2. Contradictory Calls—Pleading.—Treating the English field notes as part of the title and the calls being inconsistent, it -was proper in a suit involving the locality of the grant to allege in the petition and describe the correct call, and to introduce evidence to sustain the pleading.</p> <p>3. General Demurrer. — In setting out the English field notes of a rectangular grant alleged for the purpose of correcting an imperfect and erroneous description in the Spanish field notes forming part of the title, there was an evident omission of one of the calls. The defect was not reached by a general demurrer. Nor would the defect, which is manifest, be ground for obj ection to the field notes in evidence on ground of variance.</p> <p>4. Identity of a Grant—Testimony.—This was an action for the value of timber cut on the “A. Burrell league in Hardin County.” If to ascertain the location of the land it was proper to resort to the original field notes as made by the surveyor, and as an addition to them the plaintiffs without objection introduced the county map and some parol evidence to support their allegation as to the locality, the defendant introducing none, it was for the court and not the jury to determine the relative value of the English field notes and the Spanish copy of them. There being no conflict in the evidence the .court did not err in refusing to submit the issue as to the locality of the land as if there were conflicting evidence.</p> <p>5. Amending Commission to take Depositions.—Interrogatories were filed to take the depositions of a witness. The notice stated the county of his residence. The depositions were regularly taken by an officer of that county and properly returned. An error by the clerk in the commission giving a wrong name for the residence of the witness was properly amended under direction of the court.</p> <p>6. Laches.—The grant was issued in 1835. In a suit brought for trespass upon it the defense of laches did not apply to the suit by reason of the lapse of time from the date of the grant to the date of the suit alleging the errors in description of the land covered by the grant.</p> <p>7. Recitals—Certified Copy—Menard County.—The recitals in the title of the defendant showed a chain of title under the grantee, A. Burrell, reciting links of the title; the admission of a certified copy of a deed from Burrell so recited does not make it necessary to pass upon its effect when certified as a copy “of Menard County records, now Tyler County records, ’ ’ and to determine the legal custodian of the records of the territory then called Menard County.</p> <p>8. Charge when no Conflict in the Evidence. — The testimony for plaintiffs showed the grant to Burrell, his deed to Bevil, and parol testimony to the heirship, etc., of the plaintiffs. Not contradicted, it was not error in the charge that it assumed that the plaintiffs had shown title.</p> <p>9. Boundaries.—The issues of the cause did not develop a necessity to submit the rules of law as to boundaries. The matter having been properly determined by the court upon the testimony there was no error in refusing to instruct the jury upon that question.</p>

<p>The opinion contains a statement.</p>

<p>The opinion gives a statement.</p>

<p>1. Expert Testimony as to Matters of General Knowledge.—Nonexpert witnesses after testifying to the facts were asked as to what the facts indicated as having caused the injury. The witnesses had not qualified as experts. The opinion of these witnesses as to how the injury was caused was incompetent. They had done all they could be permitted to do—to describe what they saw. It was the province of the jury to draw conclusions and form opinions from all the circumstances.</p> <p>2. Parents Suing for Damages for Death of Their Child.—In a suit by the parents against a defendant for negligently causing the death of their son it is required that the jury apportion the damages recovered. This is required whether they sue jointly or if the husband sue alone. Rev. Stats., arts. 2903, 2904, 2909.</p> <p>3. Damages for Causing Death of Infant.—The measure of damages because of the death of a young child would necessarily be indefinite. Absolute accuracy can not he attained, and hence the amount must be left to the sound discretion and common sense of the jury.</p> <p>4. Verdict Not Excessive. —• A verdict for §2000 for causing-death of their son, a vigorous child aged 18 months, and apportioned equally between the parents approved.</p> <p>• 5. Charge Approved.—The trial judge instructed the jury: “No mental grief or agony can be computed in a case of this sort, but only actual compensatory pecuniary damages, if any, can be recovered; and in estimating damages the age and character of the child and its pecuniary benefit to plaintiffs up to its arrival to 21 years of age may be considered, after allowing all reasonable expense of its rearing and education for the same period.” It was proper to refuse a repetition or to give anything conflicting with it.</p> <p>6. Newly Discovered Testimony— Impeaching Witness. — A new trial will rarely if ever be granted on account of newly discovered evidence, if the only object of the evidence be to impeach the credit of a witness.</p>

<p>The opinion gives a statement.</p>

<p>1. Exemplary Damages from Act of Servant.—The rule of law that the master is not liable in exemplary or punitory damages for the torts of the servant, unless the master authorized the same or with knowledge of the wrong and its nature has adopted or ratified it so as to make the act his own, is too well settled in this State to be now questioned. See example. ■</p> <p>' 2. Ratification by Railway Corporation.—In case of railway corporations the rule is that to amount to a ratification the adoption or confirmation of the wrongful act of the servant must he shown to he the act of some chief officer, vice principal, or alter ego of the company, who must he proved to possess under the company sufficient authority and discretion to act and speak for the company.</p> <p>3. Same—Presumptions.—In the absence of proof we are not authorized to presume the authority to bind the railway company by ratifying an unauthorized and wrongful act of an employe of the company as possessed by the local agent or a subordinate employe.</p> <p>4. Case in Judgment. — The yardmaster at a neighboring station in employ of the defendant company caused carcasses of dead cattle to be cast into a bayou near the residence of plaintiff, thereby polluting the water and atmosphere, etc. For this act the defendant company is responsible for actual damages, but in absence of proof of authority or ratification it is not liable for exemplary damages.</p> <p>5. Presumption of Innocence. — Where the act of the servant is a crime, or is of a willful and malicious character, the law prima facie presumes that the perpetrator of the wrong was not authorized before or sanctioned afterward by the principal. This presumption continues until removed by proof.</p> <p>6. Same.—Article 390, Penal Code, makes anyone polluting a watercourse guilty of an offense punishable hy fine not exceeding §500. The servant would he liable both civilly and criminally; the master only civilly and for actual damages.</p> <p>7. Elements of Actual Damages.—See suggestions touching acts and effects of such acts which could have been considered hy the jury in estimating the actual damages had the court directed their attention.</p>

Error from Brazoria. Tried below before Hon. Wm. H. Burkhart. This was an action of trespass to try title. The defendants cl aimed the land as within the lines of their purchase as run and marked at their purchase. The defendants entered into possession to the line as claimed by them in 1875, and have had it in actual possession, claiming it ever since. The suit was filed September 1, 1888. The defendants pleaded not guilty and statute of limitations.

<p>1. Certiorari to Justice Court—Plea to Jurisdiction.—A petition for certiorari to a Justice Court issued by the District Court was dismissed. The order of dismissal is approved because the petition was defective:</p> <p>1. It did not show that the plea to the jurisdiction of the Justice Court made upon the ground of the defendant's residence in another county, etc., had been urged in the Justice Court, or that any testimony was produced to sustain it.</p> <p>2. The plea; was verified only' by affidavit of an agent that it was true according to affiant’s information and belief.</p> <p>2. Same — Practice. — In certiorari cases the record of the justice when sent up will be looked to in connection with the petition. In this case averments in the petition were modified by the record of the Justice Court.</p>

<p>The opinion gives a statement.</p>

<p>The opinion contains a sufficient statement.</p>

<p>1. Assignments for Benefit of Creditors.—It is well settled that the act regulating assignments (Sayles’ Civ. Stats., title 7a) did not, neither was it intended to, interfere with the right of a debtor to give preferences among his creditors. This must be done by mortgage.</p> <p>2. Mortgage.—A mortgage being the security for a debt and giving merely a lien upon the property leaves in the grantor an equity of redemption, and any surplus after payment of the debt secured would be subject to the claim of creditors seeking to enforce their rights.</p> <p>3. Case Adhered to.—Johnson v. Robinson, 68 Texas, 400, adhered to in holding a conveyance to be an assignment when made by an insolvent debtor to a trustee with no condition of defeasance, proceeds thereof to be applied first to certain named creditors and the residue among other creditors.</p> <p>4. Assignment.—When an instrument in its effect is an assignment, the statnte operates upon it and it is made to conform to the statute and should be administered • under its provisions.</p> <p>5. Parties.—In a suit by a creditor against a trustee holding under an assignment to compel the administration of the trust under and in accordance with the laws regulating assignments it is not necessary that the preferred creditors be made parties.</p>

<p>The opinion gives a statement.</p>

<p>1. Conspiracy. —At common law a conspiracy can not ■ "be made the subject of a civil action, although damages result, unless something is done which without the conspiracy would give a right of action. The true test as to whether such action will lie is whether the act accomplished after the conspiracy is formed is itself actionable/</p> <p>2. Same. —As a general rule a person has an absolute right to refuse to have business relations with any other person whomsoever, whether the refusal is based upon reason or on caprice, and there is no law which forces a man to part with the title to his property. Yet the proposition must be limited to the individual action of the party who asserts the right. It is not equally true that one person may from such motive influence another to do the same thing.</p> <p>3. Same — Case in Judgment.—The petition by a butcher charging conspiracy among cattle dealers to his injury went further than to charge that defendants refused to sell to him. It charges that they not only did that, but that they induced a third person to refuse to sell to him. It does not appear from the petition that their interference with the business of plaintiff was done to serve any legitimate purpose of their own, but that it was done wantonly and maliciously and that it caused, as they intended it should, pecuniary loss to him. Held, that the petition alleged a cause of action, and that it was error to sustain a demurrer to it.</p>

<p>1. Citation of Nonresident Corporation by Service on Agent.—The citation held good is as follows: “The State of Texas, to the sheriff or any constable of Washington County, greeting: You are hereby commanded to summon the Western Union Telegraph Company through Mrs. L. M. Miles, its local agent at Brenham, Texas, who represents said company at said place and who is alleged to reside in said Washington County, to appear at the next regular term of the District Court of Washington County, to be holden at the court house thereof in the city of Brenham on the first Monday in March, 1890, * * * in a suit numbered on the docket of said court 6791, wherein”— repeating the names of the parties, with a statement of the cause of action, and duly attested.</p> <p>2. Continuance—Failure in Diligence.—Suit was filed February 13, 1890. Citation was served on February 14 on local agent of the Western Union Telegraph Company, a nonresident corporation. Court convened March 3. On appearance day, March 7, the case was set for trial on March 10. On that day interrogatories were filed by defendant for the purpose of taking depositions of an employe residing in Galveston County, Texas. On March 10 application for continuance was properly refused for want of diligence.</p> <p>3. Practice in Supreme Court.—An assignment of error can not be considered on appeal unless the record shows that tie ruling complained of was made by the trial court. See example.</p> <p>4. Same—Statement of Facts—Charge.—Charges asked by the telegraph company were refused by the trial judge. The charges related to conditions limiting its responsibility. The s atement of facts not showing the introduction in evidence of the alleged conditions the refusal of the charges can not be revised on appeal.</p> <p>5. Practice in District Court—Testimony.—We think it clear as a matter of practice and of law that the identification of a written instrument for the purpose of introducing it in evidence is not equivalent to its introduction in evidence in fact before the court and jury.</p> <p>6. Duty of Telegraph Company — Charge.—The trial judge having charged the jury that “the question of diligence is one to be determined by the jury from all the evidence; to find for the defendant if they found from the evidence that its agent was not guilty of negligence but had exercised reasonable care and diligence in getting the message through; that the defendant should be held to the exercise of such care and diligence as would be reasonably adequate to a faithful discharge of its duty; elsewhere making its liability depend directly upon proof of negligence on its part or of its agents and employes; and that defendant would not be liable as a common carrier would be as an insurer. Held, that having so instructed the jury it was proper to refuse instructions asked as to the effect of conditions attached to the message sent, which conditions were expressly limited to cases wherein there was no negligence on part of the telegraph company.</p> <p>7. Unavoidable Interruption.—The clause that ‘ the company will not be liable for delays arising from unavoidable interruptions in the working of its lines” would refer to such as are caused by electrical disturbances, or others beyond the control of the telegraph company. It would not include delay caused by a surrender of the only wire from the point of sending to the exclusive use of the railway company along whose track the telegraph line was placed.</p> <p>8. Same.—That the only wire owned by the telegraph company was surrendered to the'train dispatcher’s use and was by him used for several consecutive hours, there being no necessity for such use shown, will not. be received as of itself an excuse for delay of the telegraph company in sending a dispatch which it had received for transmission in due course of business.</p> <p>9. Duty of Telegraph Company. —When the business of a telegraph company can not he transacted hy one wire others should he provided equal to its business.</p> <p>10. Telegraph Service on Sunday.—It was in evidence that work as a general rule was suspended on Sunday from 10 a. m. to 4 p. m. The court excluded this period from the working time during which diligence was to be exercised by the defendant company. This was favorable to the defendant. It appeared that work was not in fact suspended, but was carried on hy the (rain dispatcher. Telegraph companies are relieved from the operation of the Sunday laws, not for the benefit or at instance of railways alone.</p> <p>11. Telegraph Message, Explaining its Importance.—A dispatch, ■“ Emma died last night; will be buried this evening,” sufficiently explains its importance.</p> <p>IS. Contributory Negligence.—That a dispatch announcing a death in the family of parties communicating by telegram was delayed before it reached the telegraph office is irrelevant and can not be urged as contributory negligence in an action against the telegraph company for negligence in sending after receiving it.</p> <p>13. Verdict Not Excessive.— Plaintiff recovered §1000 damages of the defendant telegraph company for negligent delay in delivering him a telegram announcing the death of his sister. By the delay he could not attend the funeral. Held, that the amount was not excessive, nor could it be presumed that -the jury acted from any improper motives.</p>

<p>1. Contributory Negligence. — Suit for failure to deliver a message whereby plaintiff failed to get medical assistance. Nine days after the dispatch was sent the physician saw the plaintiff and advised against an attempt to set a broken or disjointed elbow. The elbow joint retnained stiff. There'was conflicting testimony whether the joint could have been reset when the physician saw the plaintiff nine days after the injury. Held, the verdict was conclusive that under the circumstances the break could not have been reset.</p> <p>2. Same — Failure to Obtain Other Surgical Aid. — Plaintiff, aged 15 years, had his arm broken or dislocated at the elbow. A physician was telegraphed for— could have reached plaintiff in twenty-four hours. The message was never delivered, and the physician saw the plaintiff nine days after the dispatch was delivered to the telegraph company. The parents of the plaintiff did not repeat the telegram nor make any effort to obtain other necessary surgical aid. Held:</p> <p>1. The failure to obtain other surgical aid was negligence, such as to prevent the parents from a recovery of damages.</p> <p>2. But such negligence of the parents can not be interposed ■ as a defense to bar a recovery for the benefit of the minor.</p> <p>3. The question of negligence by the .minor is for the jury under all the circumstances in evidence.</p> <p>3. Personal Injuries Suffered by Minor.—In this case plaintiff, aged 15, had his arm broken at elbow. The father was absent. Dispatch was sent for the family physician but never delivered. Held, it may he well doubted whether a child of that age had sufficient experience to correctly estimate the consequences of the failure to have his injured arm treated, especially When his mental and physical condition caused by the injury are considered. A recovery by the minor is sustained.</p>

<p>1. Bona Fide Purchaser Without Notice.—A holder of a junior deed for land to recover against the holder of the older title must prove payment of the purchase money and absence of notice of the older conveyance.</p> <p>2. Archives of Land Office.—Paragraph 5 of article 57, Revised Statutes, does not apply to private papers deposited in the Land Office. It relates only to documents deposited in accordance with some law of the Republic or State of Texas. See example.</p> <p>3. Certified'Copies—Statute Construed.—Article 2253, Revised Statutes, authorizing the heads of departments, etc., to give certified copies of documents or records of their offices to be used as if the originals, apifiies only to such papers as are required or permitted by law to be filed in the several offices therein named.</p> <p>4. Presumptions from Great Lapse of Time.—If it should he conceded that the recitals in the ancient deed of the payment of the purchase money would be presumed, still such presumption will not be indulged that the purchaser did not have notice of the older deed.</p> <p>5. Irrelevant Testimony.—See facts held irrelevant as not tending to prove payment of the purchase money.</p>

<p>The opinion gives a statement.</p>

The following statement of the nature and the result of this suit made by the appellants is accepted by the appellee: “This was a suit instituted in the District Court of Galveston County by John and Maria Hill against the Gulf, Colorado & Santa Fe Railway Company for damages in the sum of $500 actual and the further sum of $5000 exemplary damages for alleged wrongful and illegal expulsion of Maria Hill, a passenger, from the train of defendant, in the City of Houston, on…

<p>1. Case Adhered to—Town Grants Under Laws of Spain.—Railway y. Jarvis, 69 Texas, 527, adhered to and the same applied to the town of Guerrero established hy the same commission.</p> <p>2. Town Charter—Evidencing Rights, etc., of Town and its Inhabitants. The paper certified from the Land Office from copies there deposited by J. L. Haynes, under Act of Legislature of April 24, 1871, is in effect the charter of .the town, and at the same time the evidencé of the rights of the town to lands set apart for public use, as well as the evidence of the right of each settler to the land then designated and granted to him.</p> <p>3. Same—A Survey.—The locality of the several pprcions granted to individuals may he definitely ascertained from the instrument, as well as- the relation of land granted to one to that granted to another.</p> <p>4. Same.—The record of the general Visit shows that it throughout, from day to day, was executed with all the formalities required at that time (1767), and hears evidence that the protocol from which taken was a true and .faithful record at the time the town of Guerrero was established as a Spanish municipality. The proceedings began early in July, 1767, and ended August 20 of that year.</p> <p>5. Same—References to the General Visit.—Many papers regularly executed in the latter part of the last century and early part of this are collected in the transcript filed hy Haynes in the Land Office and refer to the paper known as the general visit, and recognize particular appropriations of land as thereby made. ></p> <p>6. Same.—Also is a copy of proceedings beginning February 20, 1801, asking a resurvey of lands as allotted in the general visit. In reply the Governor appointed Cordente to make such survey, and in March the record of the general visit was furnished him. Making the resurvey according to the original, the document was sent with his report to the Governor, who finding it correct approved it November 18, 1801. It does not appear when the papers known as the general visit were returned to Guerrero. March 3, 1831, under an order of the Governor dated October 15,1830, proceedings were taken reciting the restoration of the papers, formally restoring them as being protocoled, they may perpetuate the evidence of possession of the first settlers. This last entry including all the parts restored were duly certified, and were by Haynes, under act of the Legislature, filed in the Land Office.</p> <p>7. Documents to be Collected by Haynes.—The law directing Haynes’ acts required the collection of every “act, charter, or grant aifeeting the lands on the east side of the Rio Grande.” It did not include a statement or history by an official of the town of Guerrero, giving his opinion of the details and ownership of the several parts of the land included in the town grant.</p> <p>8. Archives.—Documents evidencing acts of officers of the Spanish government in making grants of land, in the adjustment of boundaries of land granted, ascertainment of unappropriated lands and like matters pertaining to the lands on the east side of the Rio Grande, the documents being archives at Guerrero they were properly reported by Haynes and filed in the General Land Office, where they also became archives.</p> <p>9. Archives—Legislature Can Define Them.—It is with the Legislature to determine what shall become an archive.</p> <p>10. Absence of Original.—It appearing that neither the protocol nor the original could be legally surrendered by their custodians to individuals to be taken to another county to be used in evidence, the mode of proof provided by the archived copy should be admiited.</p> <p>11. Discussion of the Archives at Guerrero.—It appears that by resolution of the government of date October 15, 1830, the person who made the order of March 3, 1831, and made the record from which the transcript in the Land Office was taken, was directed to place in a book for preservation, as are matrices when said to constitute a protocol, the copies which the governor intended should be preserved as evidencing rights public and private conferred by the acts of the sub-delegates and persons acting under their orders. This constituted the document archives. We must presume in their favor from it being the act of a former government by officials presumably knowing the laws then in force.</p> <p>12. Constitutional Law.—Section 4, article 13, of the Constitution does not apply to titles evidenced by records in the Land Office at the time, as were titles evidenced by the Haynes report.</p> <p>13. Inchoate Bight—Presumptions.—The paper (being proceedings establishing the town and determining by a survey the rights of the town and its settlers and report of possession admitted of the several parts) upon its face did not purport to evidence an inchoate right; but if it did this would not furnish sufficient reason for excluding it as evidence of some right and as a description of the land; and confirmation ought to be presumed, if necessary, from the long and continuous possession (seventy-five years before trial) shown under claim based on the proceedings evidenced by the paper.</p> <p>14. Copies Bemote from Original —Ancient Copies.—It must be conceded that the record in Guerrero now found in the archives of that time was made in March, 1831, and it is proper to hold from what appears that it was copied from .the papers there filed in 1767. subsequently removed and not returned until some time after October, 1830. This record, so far as it contains the proceedings of the sub-delegates, would be what is termed in the Spanish law a traslado, which is a copy taken by a notary from the original, or a subsequent copy taken from the protocol. But so far as the record contains the proceedings by Benevedes it would be, so far as the record shows, what is the original, because the first copy taken from the protocol, or at most a subsequent copy taken from that paper. A traslado if ancient is entitled to full faith * * * in'cases in which'the property passed hy it'is-possessed under the right conferred by it for the period of thirty years.</p> <p>15. Same.—Such ancient copies- in any event would be competent to show boundary of the tract held and grounds of holding it, accompanied by long continued possession.</p> <p>16. Exchange of Lands.—An exchange of the surveys granted to two settlers,each taking the land granted the other, may be presumed from long possession under such exchange.</p> <p>17. Legislative Confirmation.—The Act of February .10, 1-852, confirmed porciones No. 35 and No. 37, lying on both sides Of survey No. 36, the survey in controversy and depending upon the same acts of the Spanish authority. This evidences a claim of equitable ownership in owners of the No. 36 so as to protect it against location.</p> <p>18. ' Bes Adjudicata.—Action by heirs of Joaquin Cuellar for land known as porción No. 36 of outlots in town of Guerrero. It appears to have been granted to Jacinto Cuellar. The two grantees exchanged lots. One of the plaintiffs, Francisco Cuellar, for himself and coheirs sued the State to establish title in the No. 36. He sued as heir of Jacinto Cuellar. The State recovered in the action. The State v. Cuellar, 47 Texas, 295. Iil this suit the defendants set up the'suit against the State as'a defense. Held: ' '</p> <p>1.. The court properly excluded the proceedings, as this suit is not brought as heirs of Jacinto Cuellar, but in another right.</p> <p>2. Such judgment could not bar others than Francisco, the plaintiff, who could at least defeat the locations of the defendants upon the land of which they (the plaintiffs) were in possession, and of which they were equitable owners.</p>

<p>The opinion contains a statement.</p>

<p>The opinion gives a statement.</p>

<p>The opinion contains a statement.</p>

On the 1st day of October, 1887, appellant, as plaintiff below, claiming to be a private corporation duly incorporated under and by virtue of the laws of the State of.

<p>1. Homestead—Reservation of Vendor’s Lien in Deed.—Husband and wife by warranty deed duly executed conveyed their homestead, reserving the vendor’s-lien. They indorsed the purchase money notes thus secured. The holder brought suit against maker and indorser and for foreclosure of the vendor’s lien. The vendors defended upon the theory that notwithstanding their deed the title remained in the wife because of the reservation of a lien to secure the purchase money, and that she had the right to rescind. Held:</p> <p>1. Whatever homestead rights the vendors may have had in the land prior to executing the deed the effect of that instrument was to destroy that right.</p> <p>2. In so far as the deed for some purposes might be held to evidence an executory contract, all benefits which could ever have resulted to the vendors from so treating it were lost to them and their right to rescind cut off by the transfer of the notes given to secure the unpaid purchase money.</p> <p>8. Immaterial Issue.—No cause for rescission having been pleaded or proved, it was immaterial whether the court’s ruling was correct upon the law of tender—of the payments already made.</p> <p>3. Amendment of Judgment After End of Term.—A mistake in the judgment entry in the amount upon notice may he corrected after the end of term, and even after appeal was perfected.</p>

<p>1. Return of Citation by Sheriff.—The return by a sheriff upon a citation is insufficient when shoving service ‘‘By delivering to one of the within R. H. Lauderdale deft, a copy of the within citation and plff. petition.” Rev. Stats., arts. 1216, 1220.</p> <p>2. Citation to Other Counties than where Suit is Filed.—Under allegations in the petition that two of the defendants resided in Burleson County (suit filed in Lampasas District Court) it was the duty of the clerk to issue the citation for both of said defendants to that county, and he was not authorized to direct the original citation for either of them to any other place. Rev. Stats., arts. 1215, 1227.</p> <p>3. Same—Presumptions.—While original process should he directed to the county in which plaintiff’s pleadings alleged the parties to he served reside, it is proper upon the existence of any contingency mentioned in article 1227, Revised Statutes, for the clerk to issue alias process to the same or any other county, as directed, without an amendment of the pleadings of the plaintiff; and when such process is found in the record, properly served, it will he presumed that its issuance was properly directed.</p>

<p>1. Jurisdiction Against Nonresident Debtor.—Garnishment against debtors of a nonresident defendant will confer jurisdiction to render judgment against the defendant to the extent of the indebtedness acknowledged by the garnishees.</p> <p>2. Injunction—New Trial.—Garnishees against whom judgment had been rendered upon their answers acknowledging indebtedness can not enjoin such judgment in absence of fraud, accident, or mistake, whereby they were prevented from making a proper defense, as by showing that the debt had been assigned by the defendant prior to the ansiver in the garnishment proceedings.</p> <p>3. Same.—If garnishees permitted a judgment to be rendered against them when it ought not to have been, the iiiet that the judgment may not relieve them from liability to the holder of the claim by assignment not a party to the proceedings furnishes no reason why the plaintiifs obtaining judgment upon their answer should be denied the benefit of such judgment.</p> <p>4. Money Paid into Court.—The plaintiifs having judgment against the garnishees for the amount acknowledged in their answer, were entitled to execution and to have it enforced. This was prevented by the application for injunction, which was granted upon garnishees depositing the money in court. The funds so deposited occupy the same status as if collected by the sheriff and by him deposited in court upon the issuance of the injunction. There being no effort to set the judgment aside, nor any right to the fund shown adverse to plaintiffs, upon the dissolution of the injunction plaintiffs would be entitled to the money.</p> <p>5. Pleadings.—Defendants in execution by injunction sought to restrain the collection of an execution. The money was deposited in court. The right to the fund was litigated. The plaintiffs in execution asserted their right to the fund with prayer for general relief. Held, the pleadings were sufficient without a specific prayer to have the money paid them.</p> <p>6. Practice in Supreme Court.—Errors assigned in the contention with parties below not included in the appeal can not be considered by this court; nor will error assigned but not supported by a brief have attention.</p>

<p>1. Sureties of Executory-Liability.—In a suit by or in behalf of all the creditors of an estate against an executor and his sureties after his removal from the trust, held, that the sureties were liable for all the assets that came into the hands of the executor and not accounted for, except that such rule may be varied by the sureties taking up a claim or claims against the estate.</p> <p>2. Partnership Debts—Subrogation.—Deceased and his executor were partners. The executor inventoried one-half of the firm property, the only assets. Firm and individual debts were probated, the firm debts largely in excess of assets. The executor was removed. Suit in behalf of creditors against executor and sureties. Pending suit the sureties settled the largest claim ar a payment less than the pro rata share of the claim even if the firm and individual claims all had been taken into account. Held:</p> <p>1. Whatever rights resulted to the sureties from such payment came through the equitable principle of subrogation, which gives indemnity but no more.</p> <p>. % The court properly restricted the credit to the liability to the amount actually paid by the sureties in the settlement of the claim. That more would have been recovered upon the claim but for this action can not confer upon them a right to more than indemnity.</p> <p>3. Liability of Sureties.—The liability of the sureties being for the amount of assets not accounted for, and such liability not being changed in amount by the court including both firm and individual claims in his distribution of the assets, the sureties can not question the legality of such distribution.</p>

<p>1. Construction of Contract.—A contract authorizing agents to sue and compromise with parties claiming land or land certificates belonging to the principal and giving one-half interest in such land and certificates and authorizing sale, thereof by such ' agents does not apply to land owned by the constituent and not adversely claimed, and as to which no suit or compromise was necessary. This was held .against purchasers from the agents, who had no equities against the principal. See facts.</p> <p>2. Trust Estate.—Land .was conveyed to parties upon an expressed consideration but with parol agreement that one-half was to be held in trust for the grantor. IJeld, the existence of such trust did not prevent the recovery of the land by the grantees against parties not interested in such trust.</p>

<p>1. Nonexperts May Testify to Insanity—Opinion.—Nonprofessional witnesses may state their opinion as to the sanity of a party as the result of their observation, accompanied with a statement of the facts observed.</p> <p>2. Opinion—Evidence.—Where a witness may give his opinion in evidence, he may do so although the opinion be upon the issue on trial.</p> <p>3. Same—Extent of Mental Disease.—The right to express an opinion includes the right to give it as to the degree or extent of the infirmity and to apply it to the particular matter in controversy.</p> <p>4. Conveyance of Homestead by Pauper.—That land conveyed was the homestead of the grantor, or that such grantor was a pauper, would not affect the validity of a deed executed to the county. Such facts might be inquired into in aid of an attack upon such deed for undue influence or fraud.</p> <p>5. County May Own Lands.—Articles 680, 681, 682, Revised Statutes, contain an express recognition of the right of counties to take title to and enjoy real estáte without any limitation as to the purpose for which it may be used.</p>

<p>1. Notice—Estoppel.—The beneficiary of an insurance policy on the life of his wife can not be heard to say that he was ignorant of the contents of the policy at any time after he received it.</p> <p>3. Agency-—Acts of Wife in Obtaining Insurance Policy.—The policy was applied for by the wife with consent of her husband. It was for his benefit; he paid the premiums. It would seem therefore that the wife was but the agent of the husband, although nominally a party to the contract-, whose knowledge and acts ought in law to be attributed to him.</p> <p>3. Insurance Agent’s Collusion with. Insured.—Where the pleadings and evidence in an action by an insurance company for the recovery of money paid on a policy raise the issue of fraudulent collusion between the insurance agent procuring the contract and the wife, the assured party, and her husband, the beneficiary, it was error to refuse to instruct the jury that if such fraudulent collusion existed, then the knowledge of the agent of the insurance company of the falsity of representations made by the wife, the husband at the time not knowing them, would not prevent a recovery if the policy was issued in reliance upon the truth of such representations.</p> <p>4. Agent Acting in Fraud of His Principal.—When an agent ceases to act for his principal, and through collusion with another, desiring through him to defraud the principal, practically enters into the service of that other for the purpose of forwarding the interest of such other, then the relation and incidents to agency cease as to the subject of collusion between the agent and those to be benefited by it. Notice by such agent would not affect his principal'in favor of his colleagues in the fraud.</p> <p>■ 5. Charge — Fraudulent Representations.—In a suit by insurance company against the husband for money received by him upon a policy upon his wife’s life obtained by means of false representations as to her health and habits, the testimony showing collusion between the parties with the agent of the insurance company, the court erred in restricting the liability of the husband to a case of active participation by him in the representations when made or in fraudulently concealing them. The wife's acts under such circumstances were binding upon him in making the representations.</p> <p>6. Insurance Contract.—The contract is the basis of every right any person can claim under it. It provided that the policy should he inoperative in case the representations on which it was based were untrue, and not that it should be inoperative only in the event the beneficiary knew that they were untrue at the time they were made, and aided, advised, or abetted the person making them, or concealed the fact of their falsity. Courts have neither the power nor right to change the contract made by the parties and to declare a liability on a state of facts which the parties never agreed should fix it.</p> <p>7. False Representations in Obtaining Insurance Policy. — "Were this an action on the policy it would not be contended that a recovery could be had on it on the ground that the beneficiary was ignorant at any time of the existence of the facts which by its terms rendered it inoperative, for a beneficiary under or an assignee of a policy of insurance in the absence of some fact operating as an estoppel takes and holds subject to the terms of the contract itself; and if as between the immediate parties to it it is inoperative because procured by false representations, then it is inoperative to confer rights upon the beneficiary named in it.</p> <p>8. Insurance Policy Paid Under Mistake.—An insurance company that has paid a policy obtained by fraud in ignorance of that fact is entitled to recover the sum paid. This is understood to be the rule when money is paid through want of knowledge of some fact not amounting to fraud in obtaining the policy, or fraudulent representation to obtain the money after the death occurs which might have been set up as a defense in an action on the policy.</p>

<p>The opinion states the case.</p>

<p>Verdict—Certainty—Mathematical Calculation.—In an injunction suit restraining the sale of a flock of sheep under a deed of trust to secure the payment of a promissory note, the defendant set out the note in his answer and asked judgment for the amount due at the rate of interest stipulated, also for an attorney fee of 10 per cent upon such amount therein stipulated. The verdict was as follows: “We the jury find for the defendant the sum of $445, with interest on same from May 1, 1886, at the rate of 12 per cent, and attorney fees. We the jury farther find the payment of the same secured by a lien and deed of trust on aforedescribed sheep. ’ ’ Held:</p> <p>1. The verdict authorized the computation of interest upon the recover from the date specified.</p> <p>2. 'As there was no controversy as to the per cent of the amount stipulated for the' attorney fees, such per cent was properly given in the judgment.</p>

Error from Shackelford. Tried below before Hon. T. H. Conner. Error to revise a judgment for $3000, recovered below by the plaintiff for personal injuries suffered by his wife in a collision upon the road pf the appellant.

<p>1. Same- Cause of Action—Amendment—Limitation.—Parks sued Cotter, Truelove & Co., bankers, for an amount of money deposited with them and not propr erly accounted for. The amendment was for the same money upon a demand having its origin in the same transactions, but depending upon different evidence for its establishment. Held, that the amendment did not set up a new cause of action. And as the cause of action was not barred when the original petition was filed, the statute of limitations did not apply to any part bf the amount sued for. See example.</p> <p>2. Practice—Fact not Alleged.—Suit against bankers for money deposited by the plaintiff and misappropriated by them. They pleaded limitation and general denial. On trial the defendant offered testimony to prove overdrafts by plaintiff and an agreement to pay interest. Held, that as there was nothing in the answer asserting the right to recover interest, the testimony was rightly excluded.</p> <p>3. " Practice.—In an action against several defendants whose liability to the plaintiff is not identical, it is proper practice for the jury to ascertain the liability of each defendant. This separation of liability should be preserved in the judgment.</p> <p>4. Error in Amount of Verdict—Remittitur.—An inadvertent error in the amount of the verdict which is at once corrected by a remittitur is no ground for reversal.</p> <p>5: Costs—Amendment.'—It was not error oh recovery by plaintiff in an action for money misappropriated to tax the entire costs against, the defendants, although an amendment had been made by the plaintiff whereby different testimony would he required to support the demand sued upon, the amendment alleging the same transaction as the basis of the liability of defendants.</p>

<p>1. Description in Deed.—A deed conveying a. “league granted to Mrs. Martha Barker by Talbot Chambers, commissioner of Milam’s Colony,” is not void for uncertainty.</p> <p>2. Circumstances Competent.—In support of the description in the deed for the Barker grant and to identify it, it was competent to show that a league grant in name of Mrs. Martha Barker was situated near the town of Bastrop, where all the parties resided. So it was competent to show by the abstract of land titles that but one grant in her name was in Bastrop County.</p> <p>3. Transfer of Land Carries the Certificate.—A sale was made of a league grant in conflict with an older grant. By act of the Legislature the heirs or assigns of the grant were authorized to receive a certificate for the quantity in conflict with the older grant. The certificate was obtained by the vendee of the land, who sold to others by whom it was located. In a suit by the heir of the original grantee against defendants holding under her vendee, held, that the effect of her deed for the land operated as a transfer of the certificate issued under the act of the Legislature.</p> <p>4. Circumstantial Evidence of Sale of Land Certificate.—See facts occurring about the time of the issuance of a land certificate held competent evidence tending to show that a sale of titled land in conflict with an older grant included a transfer for a certificate granted for so much of the land as was in conflict.</p> <p>5. Practice in Conflict of Testimony—Charge.—Where there is testimony upon a material issue it is error for the court to withdraw the issue from the jury. The right to a trial by jury is guaranteed by the Constitution, and where there is an issue made in the testimony the court can. not legally deprive a litigant of such right.</p>

<p>The opinion states the case.</p>

Sections 1 and 2 of Act of March 4, 1875, for the relief of persons interested in the University lands, etc., are as follows: “Section 1.

<p>This suit was brought in the District Court of Denton County on the 4th of November, 1885, by Jesse Hyatt, Robert H. Bradford, and Jesse Bradford, a minor, who sues by his next friend Robert H Bradford, plaintiffs, against Jennie McDougal, A. C. McDougal, her husband, and John Hyatt (Mrs. McDougal’s son by a former marriage with Stephen Hyatt, deceased), Loretta Daugherty and Boone Daugherty her husband, S. C. Thornton, the Texas & Pacific Railway, the Missouri Pacific Railway and the city of Denton, to recover T%2y of two tracts of .land, situated at the town of Denton, out of the H. Cisco pre-emption survey, and containing about forty-five acres, for partition, and for rents and profits; and set out in their amended petition, filed January 16, 1889, that Jane and Stephen Hyatt were married in 1856; that Jane Hyatt died in June, 1862, leaving surviving her her children Jesse Hyatt, Clarissa Hyatt, and Julia Hyatt, the issue of said marriage; that afterward, in 1862, Julia Hyatt died without being married, and without issue, and left surviving her her father Stephen Hyatt, and her sister Clarissa Hyatt, and her brother Jesse Hyatt'; that in 1863 Stephen Hyatt intermarried with Jennie Walden, and two children, John W. Hyatt and George Hyatt, were the fruits of said marriage; that Stephen Hyatt died in 1867, leaving as his heirs at law Jesse Hyatt and Clarissa Hyatt, the issue of his marriage with Jane Hyatt, John W. Hyatt and George Hyatt, issue of his marriage with Jennie Hyatt, and Jennie Hyatt his wife, and that in 1871 George Hyatt died without issue; that in 1873 Clarissa Hyatt intermarried with plaintiff Robert H. Bradford; that there were born to them Jesse Bradford and Willie Bradford; that on the 28th day of June, 1876, said Clarissa Bradford died intestate, leaving surviving her her two children and her husband; that in 1878 Willie Bradford died, leaving his father Robert H. Bradford and his brother Jesse Bradford his heirs at law; that in 1882 Jennie Hyatt intermarried with A. C. McDougal; that at the time of the death of Jane Hyatt she and Stephen Hyatt owned the land in controversy as community property; that plaintiffs are entitled to T6^ of the land as their share of the estate of Jane and Julia Hyatt, deceased, and that defendants among them are entitled to {-|4 of the land; that defendants Jennie McDougal and John Hyatt have conveyed portions of said land to the Texas & Pacific and Missouri Pacific Railway Companies, to S. C. Thornton, and to the city of Denton, and that said sales were wrongful and without the consent of plaintiffs; that they received the consideration for which such conveyances were made, and refused to pay to plaintiffs any portion thereof; that said Jennie and A. C. McDougal ever since their marriage in 1882 have been in the actual exclusive possession of said land for more than two years preceding the institution of this suit, and have appropriated rents and profits to their own use, which rents, etc., are worth $160 per year, and pray that they have judgment for said interest and that commissioners be appointed to partition same, and if it should appear that defendants Jennie McDougal and John Hyatt have made the sales heretofore stated, or any of them, and that the court should be of the opinion that the purchasers ought to be protected, that all such sales be charged to the account of Jennie and A. C. McDougal and John W. Hyatt, and the portion due the plaintiffs be set over to them out of the remainder. That the court estimate the value of the rents and set over to plaintiffs a sufficient amount of said land to compensate them for the value of the rent, or that they have judgment in money for the value of said rent..</p> <p>All the defendants answered. Loretta Daugherty and Boone Daugherty, in their answer filed January 19,1889, pleaded not guilty, traverse the pleas of five and ten years limitations pleaded by defendants Jennie and A. C. McDougal and John Hyatt, and by special answer allege that they are the owners in fee simple of a one-fourth interest of the two tracts of land in controversy, ask judgment for their interest, and for partition, and if a fair partition can not be made that the same be sold for partition and one-fourth of the proceeds be paid them, and that Jennie McDougal an'd John Hyatt account to them for one-fourth of the proceeds of the portions of land sold by them.</p> <p>The Texas & Pacific and Missouri Pacific Railway Companies answer, filed January 4, 1886, general demurrer, general denial, not. guilty, and special answer. S. C. Thornton answered not guilty, and general denial. The city of Denton answered by plea of not guilty, general denial, the five and ten years statutes of limitation, and special answer. Jennie and A. C. McDougal and John Hyatt, by their third amended answer filed the 16th day of January, 1889, pleaded general demurrer, not guilty, general denial, the five and ten years statutes of limitation, and suggestion of valuable improvements in good faith.</p> <p>On the 13th of February, 1889, the cause was tried before the court without a jury; and it appearing that Jennie McDougal had acquired all the interest of Jesse Hyatt, the court rendered judgment that the Missouri Pacific and Dallas & Wichita Railways go hence without day; that the Texas & Pacific Railway Company, S. C. Thornton, and the city of Denton have the land claimed and held by them under their deeds; that Robert H. Bradford and Jesse Bradford have one-fifth of the land, to be equal in value to one-fifth of the whole tract, excluding the value of the improvements made by defendants; that Jennie McDougal have one-fifth of the land, deducting out of her one-fifth the amount of land sold by her to the railroad and S. C. Thornton;, that Loretta Daugherty have one-sixtieth of the land, to be equal in value to one-sixtieth of the whole, and that Jennie McDougal have the remaining seven-twelfths to be used by her as a homestead during her life; provided, if she should abandon or cease to occupy the same the interests of plaintiffs Bradfords, Loretta Daugherty, and Jennie McDougal may be partitioned among them according to their respective interests therein, and appointed commissioners to partition; and that Jennie and A. C. McDougal pay all costs of suits.</p> <p>From this judgment the defendants Jennie McDougal, A. C. McDougal, and John W. Hyatt appealed. The relations, heirship, and successive deaths of the parties were proved as alleged. It was proved that Stephen Hyatt was a widower when he married Jane McCusley, that he had been previously married, and that Loretta Daugherty was the only issue of the first marriage.</p> <p>The conclusions of fact,and law as filed by the court are as follows:</p> <p>1. I find that the land in controversy was the community property of Stephen Hyatt and his second wife Jane Hyatt.</p> <p>2. That Stephen Hyatt and his second Avife Jane Hyatt were married in 1856, and that they had three children the fruits of their marriage, viz., Jesse, Julia, and Clarissa.</p> <p>3. That at the time of his marriage with Jane Hyatt, Stephen Hyatt was a widower with one child, Loretta Hyatt, now the wife of Boone Daugherty.</p> <p>4. That in June, 1862, Jane Hyatt died, leaving sundving her her husband Stephen Hyatt and their three children, Jesse, Julia, and Clarissa.</p> <p>5. That in August, 1862, Julia Hyatt died, leaving as her heirs her father Stephen Hyatt, her sister Clarissa, her brother Jesse, and her half-sister Loretta, now the wife of Boone Daugherty.</p> <p>6. That in December, 1862, Stephen Hyatt and defendant Jennie Mc-Dougal were married, by which marriage they had two children, John W. Hyatt and George Hyatt; that George Hyatt died in 1872.</p> <p>7. That Stephen Hyatt died in 1867, leaving as his heirs his daughter Loretta by his first wife, his daughter Clarissa and his son Jesse by his second wife, and his two sons, John W. and George, by his third Avife, and his third wife Jennie Hyatt, now McDougal.</p> <p>8. That on the 23d of October, 1873, plaintiff R. H. Bradford and Clarissa Hyatt were married, and had two children born of the marriage, Jesse and Willie. That Clarissa, wife of plaintiff R. H. Bradford, died June 26, 1876; their son Willie died July 23, 1878.</p> <p>9. That defendant Jennie McDougal sold a part of the land in controversy to the Texas & Pacific Railway Company and to S. C. Thornton, as set forth in statement of facts in this case.</p> <p>TO. That about the year 1868 the Probate Court of Denton County set apart the land in controversy as the homestead of Jennie Hyatt (now Mrs. McDougal) and the minor heirs of Stephen Hyatt, deceased, who were Jesse Hyatt, Clarissa Hyatt, John W. Hyatt, and George Hyatt; that said order was made in course of administration upon the estate of Stephen Hyatt, and not upon administration of the community estate of Stephen and his second wife Jane; that the estate of Stephen Hyatt was insolvent.</p> <p>11. That the defendant Jennie McDougal has occupied said premises as her homestead ever since the death of Stephen Hyatt, and has never abandoned the same as her homestead.</p> <p>12. That since the death of Stephen Hyatt defendant Jennie Mc-Dougal has purchased from Jesse Hyatt alibis interest in the land in controversy.</p> <p>13. Upon the foregoing state of facts my opinion is that upon the death of Stephen Hyatt he owned seven-twelfths of the land in controversy, which the defendant Jennie McDougal is entitled to hold as a homestead as long as she lives or sees proper to use it as a homestead, and that by reason of her purchase of Jesse Hyatt’s interest in his mother’s estate to one-fifth of the land in fee simple, and that the plaintiff R. H. Bradford and Jesse Bradford are together entitled to one-fifth of said land, and that defendant Loretta Daugherty is entitled to one-sixtieth of said land, and render judgment accordingly, directing that the defendant the Texas & Pacific Railway Company, S. C. Thornton, and the city of Denton be quieted in their title, and that the commissioners in partitioning the premises subtract the amount sold to the Texas & Pacific Railway Company and S. 0. Thornton from the one-fifth to which Jennie McDougal is entitled in fee simple and set apart to her in fee simple what remains after deducting from the one-fifth acquired from Jesse Hyatt the portion sold to the railway company and to Thornton.</p> <p>[Other necessary facts will be found in the opinion. This statement accompanied the opinion.]</p>

<p>The opinion states the case.</p>

<p>1. Negligence a Question of Fact—Charge.—As a general rule, where an act is not unlawful a court can not denounce it as negligence from which liability follows. It is for the jury to say, under proper instructions, whether the particular acts under investigation are negligent or not.</p> <p>8. Negligence — Cases Adhered to.—Railway v. Murphy, 46 Texas, 356, and Railway v. Greenlee, 70 Texas, 553, adhered to.</p> <p>'3. Liability of Railway Company for Acts of Nonemployes.—A railway company would not he liable for an injury caused by an unauthorized party handling its machinery. But where a brakeman in absence of the engineer, having no authority, started an engine and caused an injury, and it appeared that the fireman was at his post and consenting to' the brakeman’s acts, it can not be held that the railway company is absolved from liability.</p>

<p>1. Tenant Holding Over — Landlord and Tenant.—The tenant who holds over after the end of the term under which he entered with consent of his landlord is deemed to he’in possession upon the terms of his prior lease, upon the ground that the parties are presumed to have tacitly renewed the former agreement.</p> <p>2. Same.—This rule obtains where the tenant is a natural person. It does not obtain where the tenant is a municipal corporation.</p> <p>3. Same—Contracts by City.—The act of holding over leased premises occupied by the city under a lease for one year will not bind the city. The control of city finances must be exercised by the city council. The city can not be bound by the unauthorized acts of its officers.</p> <p>4. Same.—The city however would be liable for the time the leased premises were held by the city officials upon the terms of the original lease.</p>

<p>1. Citation Against Corporation.—A citation commanding the officer “to summon J. N. Sayre, agent for the Gulf, Colorado & Santa Fe Railway Company,” etc., does not command service upon the railway company and will not sustain a judgment hy default against the railway company although served upon the person named as agent.</p> <p>2. Jurisdiction.—Jurisdiction to render a judgment can he acquired only by compliance with what the law prescribes shall be done to confer it, and without a substan- ' tial compliance with this, power to render a judgment does not exist.</p> <p>3. "Void Judgment May he Enjoined. — A judgment rendered without jurisdiction is void and may he enjoined.</p> <p>4. Injunction Against Judgment for Less Than $20.-—Judgment in a Justice Court for less than 320 can not he appealed from, and hence injunction is the only remedy, and this the District Court had the power to grant.</p> <p>5. Meritorious Defense.—Judgment against a railway company for negligently killing a calf worth 315. The road in application for injunction alleges that it had a defense, viz., that the calf was not injured hy the cars, hut “got into a mud hole and died from effects of injuries received while there.” Held, the defense was good.</p>

<p>Error from Bosque. Tried below before Hon. J. M. Hall.</p> <p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Agreement of Counsel not 'in Statement of Facts. — An agreement not having teen incorporated into a statement of facts can not he considered on appeal.</p> <p>2. Same—Case Adhered to.—Taylor v. Campbell, 59 Texas, 315, adhered to.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Omission of Call in Description of Land. — Where on inspection of field notes set out as a description of a tract of land the subject of litigation it is manifest that a call in the survey is omitted, no objection having been made to the defective description in the pleading and the attention of the trial court not having been called to the defect, that the omitted call was supplied in the judgment of foreclosure of the vend- or’s lien upon the land is no ground for reversal.</p>

<p>Damages for Breach of Contract to Sell Land.—Suit for specific performance, and in alternative for damages for breach of a contract, the petition showing that the defendant had put it out of his power to comply. The contract bore date December 10, 1883, and thereby Nevins contracted to sell eighty acres of land to plaintiff in consideration of three notes of §80 each, one due January 1, 1886, and the others January 1, 1887. In the contract was this provision: “It being necessary for the District Court of Grayson County to set apart and ratify the sale of the interest of the estate of W. H. Day to the above contract, at which time deed to Jas. T. Thomas is to be made, subject to the above described notes and conditions.” June 6,1886, a partition was had in which one-third of the two hundred and forty acres tract owned jointly by Mrs. Day, widow, and a son of W. H. Day, was allotted to Nevins, he selecting a subdivision not including the land contracted to Thomas, and on which Thomas had been residing. Thomas in January, 1886, applied to Nevins to perfect the contract. Nevins refused, alleging that the Day suit had not terminated. January 16 Thomas again sought compliance, offering to pay or execute the notes for the purchase money. Nev-ins then refused, alleging as reason that the land had not been allotted him in the suit, with the Days. Thomas suing for damages, held:</p> <p>1. Nevins having put it out of his power to comply with his contract to sell by voluntarily selecting other lands in the partition, was liable for damages for his breach of, contract.</p> <p>2. The notes being for consideration and upon the execution of the deed it was not a breach by Thomas that he had not executed the notes.</p> <p>3. Nevins having put it out of his power to comply with his contract it would thereafter have been useless in Thomas to have made the notes and tendered them.</p> <p>4. A verdict and judgment for damages in favor of Thomas sustained.</p>

<p>1. Variance between Petition and Citation.—The petition states: “J. T. Craig, assignee of C. W. Israel and J. N. Israel & Co., * * * complaining of,” etc. The citation served on the defendants designated the plaintiff as “ J. T. Craig, assignee of C. W. Israel & Co.” JECeM, no material variation, as plaintiff did not sue as assignee.</p> <p>2. Service Upon Nonresident Defendant.—It is now settled in this court that service in another State upon a defendant who is a resident therein will not support a mere personal judgment against him.</p> <p>3. Stipulated Attorney Fees. — Attorney fees can not he recovered when stipulated in the note sued on as payable if the note be placed in the hands of an attorney for collection unless the allegation is made that the note was so placed in the hands of an attorney for collection.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Oral Testimony to Identity of Land Conveyed by Deed.—City lots were surveyed and marked 26x120 feet in dimensions and described by block and number in a map duly recorded. In a deed the owner of a block and who had laid out the lots described lots 1 and 2 as being 60x120 feet each. He also sold lot No. 3. The purchaser of lots 1 and 2 took possession 120x120 feet. In a suit by purchaser of lot No. 3 it was competent to show that there was a mistake in the deeds of lots 1 and 2, and that the said lots were only 26 instead of 60 feet in width, to identify the subject of the deed under the latent ambiguity in it made manifest by the attempt to apply the description in the deed to the lots conveyed.</p> <p>2. Description—Number of Block and Lot Upon Map.—The designation -of the numbers of the lots and the block where the dimensions and locality of each block and lot are delineated upon a town map, are more certain, and do more certainly indicate the identity of the land conveyed as well as the intention of the parties, iban a call for the length and width of the lots in the deed.</p> <p>3. False Description.—If the false description" in a contract could apply to one existent subject not in the minds of the parties to the contract it would still be a false description of the thing conveyed; and should be rejected as superfluous if the subject matter of the contract is clearly described and identified by another or preceding clause in the instrument, construed if necessaiy in the light of surrounding circumstances disclosing the condition of the premises and the intention of the parties. See facts.</p> <p>4. Construction of Deed.—A deed for named lots in designated block in a town or city will be considered without express reference, as referring to the official map of such city or town, as part of the description in such deed.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>I. Bill of Exceptions Must be Filed in Term Time. —A bill of exceptions must be presented and filed before the adjournment of the term (Rev. Stats., art. 1314), and if signed after adjournment it can not be considered. The rule is the same where the bill appears only in the statement of facts which is filed and approved after the term upon a proper order for that purpose.</p> <p>3. Custom and Usages of Trade.—Custom and usages of trade are admitted in evidence for well defined purposes—to explain incidental rights of parties appertaining to the particular trade in question, to construe contracts in relation thereto, and to ascertain the meaning of words and expressions therein—as well as for other purposes.</p> <p>3. Same—Beer Kegs.—Sale of a brewery, with “accessories, appliances, or appurtenances,” included beer kegs of the establishment; it appearing that all breweries were required by act of Congress to have their beer kegs branded with the name of the company or association; that the kegs were never sold to the customers; the beer was shipped to the purchaser in kegs, the kegs remaining the property of the company, to he reshipped when empty; that kegs were among the applianets of a brewery, and necessary to the transportation of the beer after it is made, etc.</p>

<p>1. Nonsuit.—Our statutes (Rev. Stats., art. 1301) allow the plaintiff in a cause tried by the judge to take a nonsuit at any time before the decision is announced.</p> <p>2. Same—Not Allowed. After Counter-Claim.—Article 1260, Revised Statutes, prescribes that when the defendant has filed a counter-claim seeking affirmative relief the plaintiff shall not be permitted by a discontinuance of his suit to pefiudice the right of the defendant to be heard on such counter-claim.</p> <p>3. Same.—Owing to unexpected contingencies that may occur during a trial the right to take a nonsuit by the plaintiff is a privilege which may become necessary, and it is important that the substance and not the shadow of the right shall be preserved.</p> <p>4. Affirmative Relief.—Obviously the defendant only seeks such affirmative relief when by his own pleadings he requests some specific recovery that can not be given to him under pleadings that are strictly defensive and that serve only to compel the plaintiff to prove his own cause of action. Defendant must allege facts showing the right to the recovery he asks.</p> <p>5. Defective Counter-Claim.-—After pleading not. guilty in an action of .trespass to try title the defendants each separately alleged ownership and long possession of a part of the land, describing it, and that plaintiff by setting up some kind of pretended title cast a cloud upon the title of the defendants, asking that such cloud be removed. Held, that the counter-claim was defective inasmuch as the defendants failed to point out any particular deed, or to allege any facts showing how it was that any muniment of title held or claimed by the plaintiff was such a cloud upon their title that relief should be given them against it under the equitable principles controlling such'suits.</p> <p>6. Effect of Judgment on Plea of Not Guilty in Trespass to Try Title.— A judgment in favor of defendants pleading not guilty in an action of trespass to try title establishes their title against the plaintiff and all persons claiming under him. It is as conclusive in favor of the defendant recovering as it would be in favor of the successful plaintiff.</p>

<p>The opinion states the case.</p>

<p>1. Homestead of Divorced Parties — Homestead. —It is in the power of the District Court (art. 2864, Rev. Stats.) decreeing a divorce under the statute to make such a decree with regard to the use of the homestead as would protect the wife in its use. It also might provide when necessary for its use by the minor children of the marriage, subject only to the prohibiting clause that the decree shall not have the eifect in form or substance of divesting the husband of the title to one-half where the homestead is community property.</p> <p>2. Same.—The husband’s interest in the homestead can. be charged with the support of the wife and children only in the divorce suit and as a part of the decree of divorce.</p> <p>3. Partition of Homestead After Divorce. — Husband and wife resided upon community property. They were divorced, no disposition of the property being made in the decree. The divorced wife and the children of the marriage remained in the homestead, she supporting the children.. Held, that the husband had the right to sell his community interest, and that the homestead was subject to partition.</p> <p>4. Sale of Homestead for Partition. — The divorced wife with her children remained upon the homestead. The husband gave a deed of trust upon the property under which it was sold. The purchaser sued the wife for partition. The property could not be partitioned. Held, that it was error to order the sale and that the costs taxed against the wife be paid out of the proceeds of the sale. The costs could be rendered against her as a personal judgment.</p>

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

<p>1. Promise to Accept Check—Description.—A check for §1800 drawn by E. F. and W. S. Ikard on the Henrietta National Bank was offered to the State National Bank by an indorsee. The cashier telegraphed to the Henrietta National Bank as follows: “Will you pay E. F. and W. S. Ikard’s check for §1800 on presentation?” The cashier-replied on the same day by telegram: “Yes, will pay the Ikard check.” Upon this the check was discounted and at once mailed to the drawee. Payment was refused. Meld, that the description given in the telegram, with the reply, being acted upon, was sufficient in a suit by the State National Bank to bind the Henrietta National Bank in an action for a failure or refusal to pay the check.</p> <p>3. Same. — It would seem that giving the amount and character of the bill ought to be sufficient when acted upon, according to the most rigid rule.</p> <p>3. Promise to Accept — Acceptance.—-A practical difference between an action upon an acceptance and one upon a promise to accept is that the former may be brought by the holder of the bill, while the latter suit can only be maintained by the party to whom the promise is made.</p> <p>4. Accidental Erasure. — The check sued on was drawn for eighteen hundred dollars. A line drawn with a pen crossed the upper part of the word hundred. In the margin were the figures “§1800.00.” It was proved that it was the intention to dra w for eighteen hundred dollars. Meld, that the accidental erasure, if it was an erasure, did not excuse nonpayment by the drawee.</p> <p>5. Same — Inquiry. — While a careful banker might not receive a bill with such defects, still the drawee having agreed to pay could not take advantage from the defect. Besides, an inquiry into the facts would have developed that the bill was drawn for the amount claimed.</p>

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

<p>1. Limitation—Entry Under Contract Not Adverse.—A possession and claim of land under an executory contract of purchase is not such an adverse possession as if continued for the requisite period will har an entry within the statute of limitations. Wood on Lim., see. 260.</p> <p>2. Case in Judgment — Same. — Defendants purchased of Logan. Logan had entered upon the land under a title bond made by Davis, whose heir sued for the land. Davis was to be paid by conveyance by Logan of lands in Lamar County. Neither had ever executed deed to the other under the contract. The defendant pleaded 'limita^ tion. Held, that the statute did not run against' the plaintiff.</p> <p>3. Stale Demand.—The heir holding the legal title suing for land can not be defeated by the plea of stale demand. See facts.</p> <p>4. Costs. — Where there are several defendants and the plaintiff dismisses as to som’e and recovers judgment against others, it is error to tax the costs incurred in the suit against those dismissed from the suit against those against whom recovery was had. Remedy by motion to retax costs if necessary.</p>

<p>1. Presumptions in a Collateral Attack on a Judgment. — In a collateral attack upon a judgment if the judgment itself finds and recites a valid citation and service, that controls the balance of the record; otherwise if it recites an invalid citation or names the precise character thereof. If the judgment is silent as to service then the -whole record may be examined. This obtains in judgments of courts of general jurisdiction.</p> <p>2. County Courts.-—County Courts are courts of general jurisdiction within the limits prescribed by the Constitution. Their judgments are entitled to the presumptions supporting those of courts of general jurisdiction.</p> <p>. 3. Pennoyer v. Neff, 95 United States, 714.—The rule affecting citation by publication announced in Pennoyer v. Neff, 95 United States, 714, does not apply in local courts in favor of defendants who are citizens residing in the State.</p> <p>4. Case in Judgment.—Action for debt in County Court for sum within its jurisdiction. Upon affidavit that the residence of the defendants alleged to be partners was unknown citation by publication was duly made. Judgment against the firm. Execution issued. Levy and sale of land owned by one of the defendants. Held, that such sale passed the title.</p> <p>5. Service of Citation on Partners.—Service of citation by publication against defendants alleged to be partners is sufficient to support a judgment against the partners, and sale of the property of any of the firm is valid without other actual service.</p>

<p>Appeal from Collin. Tried below before Hon. H. O. Head.</p>

Tried below before Hon. P. M. Stine. The charge given by the trial judge is here given: ■ “In this cause the plaintiff sues the defendant to set aside a sale of certain State school lands described in the petition, alleging that the sale was made to S. T. Jones, S. J. Moore, and F. Lewis upon their application to purchase the lands in controversy, and that said lands were fraudulently purchased by defendant through said Jones, Moore, and Lewis, and the defendant was at the…