Volume 82 — Texas Reports

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

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

<p>Power of Legislature to Punish for Contempt. —The State Constitution provides, article 3, section 15: “Each house may punish by imprisonment during its session any person not a member for obstructing any of its proceedings, provided such imprisonment shall not exceed at any one time forty-eight hours.” And section 21: “No member shall be questioned in any other place for words spoken in debate in either house.” Under these provisions the House of Representatives had the right to determine whether or not acts of the plaintiff were an obstruction to its proceedings within the meaning of the Constitution; and having so determined, to cause him to be imprisoned for contempt; and for such confinement he has no right of action against the members of the Legislature voting upon such question, nor against the Sergeant-at-Arms executing the order. '</p>

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

The appellee A. Y. D. Old brought this suit in the District Court of Jeff Davis County against E. L. Gage, W. Keesey, Daniel Murphy, and L. B. Caruthers jointly for $2000 (less $205 credits acknowledged), alleged to be due him by defendants on a contract with them for attorney fees.

<p>1. Immaterial Error.—Where upon the testimony a jury could not properly find otherwise than they did an error in the charge of the court is immaterial. See example.</p> <p>2. Public Hoad.—See facts held insufficient to constitute a public road by any of the modes recognized by the laws of the State.</p> <p>3. Acquiescence.—The mere acquiescence by the owner of uninclosed land in the use by the public of a road over it is not sufficient evidence of a dedication of the way to the public.</p> <p>4. Statute Construed.—The Act of April 18, 1879, prescribing how a post and wire fence shall be built, was merely to prescribe such a fence as would enable landowners to enforce certain remedies against the owners of trespassing animals, and not to prohibit any other kind of wire fence.</p> <p>6. Case Adhered to—"Wire Fence.—Davis v. Davis, 70 Texas, 174, adhered to in holding that we have nolawwhich makes the construction of abarbedwire fence illegal.</p> <p>6. Negligence—Duty.—A landowner owes no duty to persons trespassing upon his lands, in the construction of fencing not along public highways, and there could be no negligence in the construction of such fencing.</p> <p>7. Contributory Negligence. —Were it negligence to erect a barbed wire fence near a private road it would be negligence in a party riding a horse difficult to control to approach such fence.</p>

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

<p>1. Mental Anguish, as Basis for Damages.—As a rule mental suffering is not an element of the damages which are recoverable for breach of a contract, or in an action for a tort founded upon a right growing out of a contract. But we see no valid reason why, if a recovery can be had for mental suffering resulting from the failure to deliver a telegraphic message announcing a death, like damages should be denied the plaintiff herein who asks damages for mental suffering caused by the delay of one day in the delivery of her husband’s body shipped at San Antonio for Jefferson, Texas.</p> <p>2. Cause of Action.—See allegations held to contain a cause of action in suit for damages by a widow against a railway company for negligence in delivery of the body of her husband shipped upon such railway.</p>

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

<p>School Vouchers Not Negotiable. — A school teacher in Franklin County had pupils transferred from Titus County. Without surrendering his vouchers the teacher obtained from the treasurer of Franklin County a warrant for the amount held in Titus for account of the transferred pupils. The teacher promised to surrender the vouchers, but after collecting the money on the order on the treasurer of Titus County he sold his vouchers, the purchaser having no notice of their payment. In action by the holder against the treasurer of Franklin County on the vouchers, held:</p> <p>1. Such vouchers can not be treated as negotiable paper.</p> <p>2. When the teacher was paid the debt was discharged, whether the vouchers were surrendered or not, and owning no debt he could not create one by transferring the vouchers. 0</p>

<p>Error from Kaufman. Tried below before Hon. Anson Rainey.</p> <p>The opinion states the case.</p>

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

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

<p>1. Idem Sonans.-—Forris and Farris are idem sonans, and a sale by the administrator of the estate of Willis A. Farris of a land certificate granted the heirs, etc., of Willis A. Forris would pass title thereto.</p> <p>2. Jurisdiction of Probate Courts—Presumption.—Letters of administration were granted January, 1852, in Austin County, upon estate of one who was alleged to have died in 1841, a citizen of Texas, etc. In 1888 the heirs of the intestate instituted suit for the land located by a purchaser under the administrator, objecting to the probate sale because it was not shown that Farris (intestate) died in Austin County. Held, the County Court had general jurisdiction in the administration of estates. Nothing to the contrary appearing upon the record, it will be presumed, when its judgments are collaterally attacked, that it found the facts to exist that would give it jurisdiction.</p> <p>3. Order of Sale Without Notice—Irregularities.—Objections to an order of sale, when offered to support a deed, for want of notice are only available in a direct proceeding, and can not be urged when the sale is collaterally attacked.</p> <p>4. Petition for Sale by Administrator.—In such collateral attack, where an application by an administrator stated that the estate was in debt, and requested a sale of property to pay debts, whatever the defects in the application in respect to failure • to show grounds for the grant of administration or for the order of sale, they can not be heard.</p> <p>6. Same. — That an indebtedness of the estate for which sale is ordered had not been presented to the administrator at the making of the order of sale will not vitiate such order.</p> <p>6. Same—Fraud in Sale.—Fraud in an administration sale is grounds for avoiding it in direct attack for that purpose. The sale is not a nullity</p> <p>7. Same — Want of Exhibit, etc. —It will not vitiate an order of sale when attacked collaterally that no statement of the condition of the estate accompanied the application for order to sell.</p> <p>8. Cases Limited. —Finch v. Edmonson, 9 Texas, 504, and Miller v. Miller, 10 Texas, 333, limited.</p> <p>9. Land Certificate, Sale of.—A special act of the Legislature granted a certificate for a league and labor of land February 11,1850, “to the heirs or legal representatives of Willis A. Forris, deceased; * * * provided, however, that this act shall only he in force and effect if the party has not heretofore received his headlight. ’ ’ This gave the estate of Forris a right to the certificate, and it was within the power of the Probate Court to order the sale of such right. The certificate, however, in fact was issued before the sale was made.</p> <p>10. Time Within Which Administration Could be Granted.—In 1852 the existing probate law did not fix a time within which administration should commence after the death of the intestate. The intestate died in 1841, and administration was commenced in 1852.</p> <p>11. Assets of Estate for Administration.—The special act granting the league and labor certificate to heirs or legal representatives of Forris was not a gift to the heirs, but the certificate was subject to administration for the benefit of creditors of Forris.</p> <p>IS. Special Act Construed. — That the grant authorized the Commissioner of the Land Office to issue the certificate to the heirs or legal representatives did not give to the act of the Commissioner in issuing it to the heirs any effect as determining its ownership. The duty of the Commissioner was simply ministerial.</p>

<p>1. Aliens—Right to Own Land.—Aliens under the law can acquire land in this State hy purchase, devise, or descent, and can maintain suit for land so acquired.</p> <p>2. Judgment as Evidence of Title.—Judgment in favor of one tenant in common for title does not affect the claims of the defendants made parties as among themselves. Such judgment without partition does not constitute the defendants joint tenants in the interest in the land not recovered.</p> <p>3. Trespass to try Title hy Tenant in Common.—A defendant not showing title can not object to recovery in trespass to try title by a plaintiff exhibiting title to an undivided interest in the land sued for.</p> <p>4. Description.—It is immaterial where the identity of the land is shown, that the description in the petition may differ from that in the title deeds exhibited.</p> <p>5. Certificate of Acknowledgment.—A notarial certificate, “that the grantor in the foregoing deed, Wm. C. Shaw, well known, * * * acknowledged that he had executed the same J. C. for Caskey all the uses, purposes, and considerations therein set forth, and that he wished not to retract the same,” held, sufficient. The name J. C. Caskey was surplusage and should be so treated.</p> <p>6. Privy Acknowledgment.—A notarial certificate of privy acknowledgment regular in other respects read, ‘ ‘ the said Adaline Caskey acknowledged such instrument to be-act and deed, and that she had willingly signed the same for the purposes and considerations therein expressed, and that she did not wish to retract it,” shows a substantial compliance with the statute.</p>

<p>1. Judgment Conclusive.—A judgment in the District Court entered upon consent of the parties that the plaintiff recover the lot in controversy and vesting the title thereto in the plaintiff, hut ascertaining the purchase money due and postponing the</p> <p>' issuance of a writ of possession until the payment of the purchase money should be made, is conclusive between the parties as to the title to the land, also against purchasers with notice.</p> <p>2. Same—Arbitration to Ascertain Balance Due.—That the judgment provided for arbitration to ascertain the balance of purchase money due did not affect the question of title.</p> <p>3. Same.—The court had the power to ascertain the facts upon which the issuance of the writ of possession was made to depend.</p> <p>4. Payment into Court.—The payment of purchase money (adjudged a party in a judgment) into court is a sufficient payment; it is not necessary to prove a tender to the party to whom it was adjudged, or a payment, upon showing such payment into court to entitle the vendee to his writ of possession.</p> <p>5. Proceedings Subsequent to Judgment. —In a motion to vacate a writ of possession issued under such judgment the court would have no power to alter or set aside the judgment. Besides, an agreement by the parties that the motion be dismissed without-prejudice, and that the money paid into court by the defendant be turned over to the plaintiff, followed by a judgment in accordance therewith, is a recognition of the validity of the judgment.</p> <p>6. Immaterial Testimony. —As a tender was not material it is not grounds for reversal should incompetent testimony be admitted to prove tender. See facts.</p> <p>7. Payment of Money into Court.—Payment of money adjudicated in a suit into court is equivalent to payment to the party to whom it was adjudicated.</p>

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

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

Tried below before Hon. Wat. A. Blackburn. This action was brought as a suit of trespass to try title, but the' question is one of boundary. J. H. Stephens, the appellant, claims the land as a portion of the Stone league on the north, and the appellee Motl claims it as a portion of the Woodford league on the south. Peter G-. and Ed. T. Rucker are the immediate grantors of the appellee.

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

<p>Error from Coleman. Tried below before Hon. C. H. Jenkins, Special District Judge appointed by the Governor.</p>

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

The following statement accompanied the opinion: This suit is by appellee against appellant to recover damages sustained growing out of a violation of shipment of cattle from Harrold, Texas, to Chicago, Ill.

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

<p>Error from Bexar. Tried below before Hon. G. H. Noonan. ■</p> <p>The opinion states the case.</p>

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

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

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

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

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

<p>1. Clerical Error. — That the officer taking the acknowledgment to a deed by Jasper M. Williamson, signed J. M., certified that James M. acknowledged it, will not vitiate the deed, the execution of the deed and identity of the grantor being otherwise proved.</p> <p>3. Equitable Defense—Trespass to Try Title. — Williamson and wife owned two tracts of land, 320 acres the Eobbins tract, and 305 acres the Gilbert, the latter the more valuable. At the wife’s death the estate was not in debt, and owned §7000 of personal property. She left children. The husband married again and had children by the second marriage. He sold the Gilbert tract and squandered the personal property, nothing reaching his children by the first marriage, but they resided upon the Eobbins tract. In this condition he conveyed by deed of gift an undivided half-interest in the Eobbins 320 acres tract to his second wife and her children. He had ceased to reside upon the Eobbins tract, and from time to time conveyed parts of it to his first wife’s children. These facts were alleged in defense to suit by those holding under the deed of gift against the purchasers from the children of the first marriage. Held, exceptions which were only equivalent to a general demurrer to the answer were properly overruled.</p> <p>3. Testimony to Amount of Community Property at Death of Wife. — The defendants claiming under deeds from the children of the first marriage were entitled to show what assets were received by the husband at his wife’s death, as in a settlement with him equity would require him to compensate them in the residue of the land, if necessary. The plaintiffs claiming under a deed of gift were in no better condition than their grantor, the survivor of the first marriage.</p> <p>4. Immaterial Matters.—Herndon, the defendant, when on the stand as witness was asked on cross-examination as to his chain of title to other land held by him. The question was properly excluded. It was legitimate for witness to buy such other land from any one without affecting his title in the land in suit.</p> <p>8. Practice — Bill of Exceptions. — A bill of exceptions to the exclusion of a question asked a witness will not be considered unless the answer desired to be introduced be shown.</p> <p>6. Competent Evidence.—It was competent to prove that the father after his second marriage left his children upon one tract of land and moved with his second wife to another tract. This would tend to support a finding by the court that the •father had relinquished that tract to. his children.</p> <p>7. Fact Case.-—See facts held sufficient to support a finding hy the court that the land in controversy had heen conveyed hy the father to his children hy his first marriage, and in satisfaction of their claim upon the community property owned at their mother’s death.</p>

<p>1. Written Contract not Varied by Parol. — The general rule is well understood, that a parol agreement can not be engrafted upon a written contract clear in its terms, in the absence of fraud, accident, or mistake. The exceptions to the rule are as familiar as the rule itself, viz., that a deed absolute on its face may be shown to be a mortgage or a trust, or that the consideration in a deed is not properly stated.</p> <p>2. Case in Judgment — Construction.—A contract between Jones and the railway company recited, “in consideration of the purchase of land from me for the location of a town site and the location of a depot at a point between stations 1670 and 1678 on the located line of the Gulf, Colorado & Santa Fe Railway running northeast to Red River,” etc. This language indicated that there was some understood agreement between it and Jones requiring it to place a depot between the sections named. The agreement referred to was binding upon the railway company if made by parol. The circumstances in evidence clearly showed what the agreement was and its consideration. Its breach was ground for damages. In such cause of action fraud was not a necessary allegation.</p> <p>3. Authority of Agent to Bind Railway Company in Locating a Depot. See facts held sufficient to sustain a finding of agency binding the railway company in contract for locating a depot on its line.</p> <p>4. Ratification.—See facts held sufficient to show a ratification by the railway company of the acts of one acting for it in making a contract for the location of a depot.</p> <p>5. Circumstances in Proof of Agency. —As a circumstance tending to prove agency of Wylie it was competent to allow a witness to testify: “I knew Waters S. Davis, of Galveston. He was secretary of defendant company. His office was in Galveston. I presented him with a petition for change of name of depot at Copeville. He referred me to Colonel Snyder, and upon going to Snyder he referred me to Colonel Wylie. Wylie reported on it.”</p>

<p>1. Testimony. — In an action for personal injuries inflicted upon plaintiff m alighting from a car from alleged negligence of the railway company in not stopping a sufficient time at the depot, the defense had proved that on the occasion of the injury the train was stopped as long or longer than usual, it was not irrelevant or erroneous to allow the plaintiff to prove that about the time of the injury the trains of the defendant frequently passed that station without stopping a sufficient length of time to enable passengers to leave the train.</p> <p>2. Irrelevant Testimony—Other Distinct Acts of Neglect.—In such action the plaintiff over objection was allowed to prove by a witness “that some short time before and about the day of plaintiff’s injury a lady fell on the platform at Lometa (the place of the injury) while alighting from the defendant’s train of cars; that witness did not see her fall, but saw her getting.off the train and heard his brother say ‘there,’ and looked and saw her getting up from the platform and the train moving off; that he did not know how long the train stopped at that time, but it only stopped for a very short while. Supposed she would not have fallen if the train had stopped long enough for her to get off.” There was no claim for exemplary damages. Held:</p> <p>1. That the testimony was wholly irrelevant to any issue then before the court.</p> <p>2. It can not be held to have been harmless, the testimony being conflicting, and it is ground for reversal.</p> <p>3. Custom—Negligence.—It would seem that a custom or the habitual conduct of a defendant is not admissible to show the existence or absence of negligence in a given case. This fact, negligence, must be proved by the circumstances of the identical ease under investigation.</p> <p>4. Scienter—Other Acts Admissible.—In some instances evidence of other acts of negligence or of distinct torts committed by the same party have been admitted to show the knowledge or intent of the wrongdoer in doing the very act which is the subject of investigation.</p>

<p>1. Written Contract not Varied by Parol.—Parties in writing contracted that Du Bois “doth covenant and agree to and with the said Francis and John Rooney that he will pay the sum of §8.50 per head for the following cattle (giving brands), amounting to about 1000 head, first delivery to he about March 15, and last delivery to be not later than August 1.” Held, inadmissible to show a parol understanding that there should he sixty head of beeves delivered. This would vary the written contract.</p> <p>2. Reconvention—Case in Judgment.—Rooney & Rooney contracted in writing with Du Bois for sale of certain tracts of land and 1000 head of cattle at stipulated prices. Of the lands, one tract as alleged in the answer was represented and pointed out by the vendors as valuable for water. The title to this failed. In an action by the vendors upon the contract for balance due on the cattle Du Bois could reconvene and set up the misrepresentations touching the tract of land and damages therefrom. The matter so pleaded grew out of the contract sued upon.</p>

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

<p>1. Fraudulent Trust Deed to Secure Creditor.—A deed of trust is vitiated by instructions therein to the trustee “to sell the property in due course of trade, and to carry on the retail business in the regular course of trade.”</p> <p>2. Same—Construction of Deed of Trust. — The trustees under the above authority could only dispose of the goods at the usual retail prices. They are not permitted to sell promptly and pay the debt secured. The surplus is placed beyond the reach of other creditors for an indefinite time. Such mortgage is in effect fraudulent and void.</p>

<p>1. Homestead of Insolvent Husband.—Upon the death of the husband, leaving a widow the only constituent of the family, the widow is entitled to the property as a homestead. This homestead property inheres in the land, and creditors have no rights in it as against heirs. In this case the husband left a married daughter. On her mother’s death she took title to the land free from any claim of her father’s creditors.</p> <p>S. Same—Administration.—The administrator has no rights in the homestead where a constituent of the family survives. Those entitled to the homestead when set apart to them take it unburdened with debts and free from claims of creditors, save for purchase money.</p> <p>3. Case Adhered to.—-Zwernemann v. Von Rosenberg, 76 Texas, .552, adhered to.</p>

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

Appellee (plaintiff below) brought this suit against the Missouri Pacific Railway Company and the International & Great Northern Railway Company, for damages sustained by him by reason of injuries inflicted upon him -August 19, 1884, by the servants of appellants in the movements of a train in their yard at San Antonio, Texas. Patrick McKernan testified: “I am the plaintiff in this cause.

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

<p>1. Fraudulent Sale "Voidable, Not Void.—A fraudulent conveyance is valid between the parties themselves, and can only he set aside by creditors, purchasers, or other persons intended to be defrauded. Although pronounced void by the statute, it is only voidable, because it is valid except as to the persons named. Rev. Stats.-, art. 2465.</p> <p>2. Same—Fact Case.—Stephens owned a hardware store, and Adaira half-interest in a flock of sheep. They traded, Stephens giving his stock of goods for Adair’s sheep. After the goods had been partially invoiced the parties each executed to the other a bill of sale acknowledging payment. The stock of goods was attached by a creditor of Stephens. Upon this Adair refused to surrender possession of the sheep. Before judgment or sale Stephens discharged the attachment hy payment .of the debt. Suit against Adair for the sheep. He set up the facts, claiming that the consideration for the sheep had failed and his transfer should he avoided. Held, a charge by the court that such contract was void if made hy Stephens to hinder or delay creditors, etc., was error. It was not void nor even voidable upon Stephens paying his debts.</p> <p>3. Executed and Executory Contracts—Fraud.—While courts will not enforce executory contracts shown to be fraudulent, they will not aid the parties when such contracts are executed. The facts involved in the litigation show an executed contract. It was not necessary that the sheep he delivered to complete the sale.</p>

This is an appeal from a judgment for $1120.10 and costs, recovered by appellee for damages against appellants for seizing under attachment a stock of goods in a suit by them against E. M. Walker and appellee. The facts are set out in the opinion.

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

<p>1. Practice—Suits Against Receivers of Railway.—Where suit is brought. for personal injuries against receivers of a railway, asking, however, no personal judgment against them, it is unimportant whether the defect causing the injury existed when the railway came into their hands, or whether they had been in charge a sufficient time to repair the defect.</p> <p>S. Expert Testimony.—A witness who had twenty years experience in the construction of railways was properly permitted after stating the manner the defective culvert was constructed to state that the construction was not proper.</p> <p>3. Impeaching Witness.—A witness, the roadmaster, on cross-examination was asked if within two days after the accident at a place and in presence of a person named he did not state that “the culvert,was built with dry masonry and was not worth a damn.” In reply the witness denied the use of that or equivalent language. It was then proved that the witness had so stated. Held, the testimony was properly admitted for purpose of impeaching the witness.</p> <p>4. Case Adhered to. —Receivers v. Wingate, 78 Texas, 333, adhered to, touching a defective culvert as affected by the breaking of a private tank above it.</p> <p>5. Liability of Railway in Hands of Receivers. —Suit against the receivers and the railway company for injuries from a defective culvert. The court instructed the jury to find for the railway company. They found a verdict against the receivers. The judgment only fixed the liability and amount on the receivers in their official capacity. Held, not error.</p>

<p>1. Citation in Writ of Error. —Motion to dismiss writ of error on the ground that the citation does not show when the petition for writ of error was filed, nor give the description of the judgment contained in the petition for writ of error, can not be sustained save to the extent of striking the case from the docket for want of proper citation in error. The plaintiff in error can have proper citation if he h^s not otherwise lost'that right.</p> <p>2. Writ of Error Not Lost by Appeal with Cost Bond.—That the plaintiff in error had appealed and had filed cost bond but had not further prosecuted his appeal does not preclude his right to the writ of error when filed within two years from date of the judgment below.</p>

<p>This is an appeal from a judgment in favor of Wolfe, the appellee, for $375 damages for right of way by the railway company appropriating three acres. Wolfe had sold the land before he sued for the damages, and has made his vendee Wm. Measles a party defendant in the suit. Measles claimed the damages for the land taken and consequent injury to the remainder.</p> <p>Other facts are given in the opinion.</p>

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

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

This is an appeal from a judgment for $200 rendered against the railway company for injuries inflicted through alleged negligence of its employes. The injury -was in mashing the little finger of plaintiff by a door closing upon it. The facts are given in the opinion.

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

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

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

<p>1. Liability of Railway Company for Damages from not Providing Cattle Guards.—While the statute (art. 4243, Rev. Stats.) authorizes the owner of an inclosure through which a railway- track is run to construct and repair the necessary cattle guards “at the expense of the railway company if it fails to do so,” this imposes no duty so to do upon the land owner. He may exercise his option without liability for contributory negligence in case of damages to his inclosure.</p> <p>2. Cases Adhered to.—Railway v. Young, 60 Texas, 201, and Railway v. Adams, 63 Texas, 200, adhered to.</p> <p>3. Same—Right of Way.—Railway v. McKenzie, 78 Texas, 298, adhered to, in holding that a verdict and judgment against a railway company for damages for right of way operates as a judgment for the right of way in favor of the railway company.</p>

<p>1. Fraudulent Attachment.—An attachment obtained upon affidavit “that the defendants were about to dispose of their property with intent to defraud their creditors,” can be avoided by subsequent attaching creditors upon showing that the affidavit was false and known to be false by the affiant at the time it was made.</p> <p>2. Same—Reasonable Ground of Belief.—An affidavit upon reasonable ground of belief made to obtain an attachment, although false, will sustain such attachment in an attack by subsequent attaching creditors. See facts.</p> <p>3. Grounds for Attachment.—That debtors threatened a conversion of their accounts, forming the greater part of their assets, into promissory notes presumably or probably negotiable, would indicate an intention to transfer the notes to third parties, and wouldbe an effectual method of putting the same beyond the reach of creditors.</p>

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

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

<p>1. Remittitur, When Allowed. — Where the measure of damages is regulated hy recognized principles of law hy which it may he determined to what extent the verdict is excessive a remittitur may he allowed.</p> <p>2. Same—When not Allowed.—But where the excess in the verdict is not ascertainable by any rules of law, is uncertain, and considerable, a remittitur should not he permitted. See example, being damages for slander.</p> <p>3. Practice—Remarks of Counsel.—Where there is evidence of undue influence upon the jury, as by inflammatory remarks of counsel, apparent animosity on part of jury against the losing party, followed by a verdict for excessive damages, a new trial should have been granted.</p> <p>4. Verdict—Practice.—In an action lying'in uncertain damages a judgment should not be entered upon a verdict reduced by entry óf á remittitur, where the original, verdict is excessive.</p> <p>5. Verdict Excessive.—Verdict for $24,000 actual and $8000 vindictive damages held excessive in action for libel or slander.</p>

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

<p>1. Appeal from County to District Court in Probate Matters. — Revised Statutes, article 2200, provides: “Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the County Court, shall have the right to appeal therefrom to the District Court of the county,” etc. This statute has been recognized as authority for an appeal from an order of the County Court rejecting the report or account of an administrator, and directing him to file another report on a designated basis.</p> <p>2. Same—Interlocutory Order. —Proceedings were taken to require Alford to report his action as guardian to the County Court of Anderson County. The effect of Alford’s answer was to raise the question of the jurisdiction or power of that Probate Court to require of him as guardian a report as to the disposition of property no longer under his control as guardian, but withdrawn therefrom by the administration proceedings (upon estate of the deceased ward) in Dallas County, and the disposition of which he had legally reported to that court. The Probate Court sustained its jurisdiction and ordered him to report as guardian. From this order Alford had the right to appeal to the District Court.</p>

<p>1. Knights of Honor — Initiation Necessary to Membership. — It is clear from the constitution and by-laws of the order of' Knights of Honor that initiation is indispensable to membership. It is only upon the death of “a member who has attained the degree of the subordinate lodge" that the supreme lodge could order payment to the beneficiary of the certificate of membership. See discussion of constitution and by-laws.</p> <p>2. Initiation.—That the ceremony of initiation is secret does not affect it, and it can not be held by the court to be a useless or unreasonable requirement to membership.</p>

<p>1. Conductor and Passenger on Railway — Case in Judgment.—James, a passenger, had paid his fare to Atlanta. He was asleep and did not stop there. After passing Atlanta he was put off the train. There was no evidence on the trial that he offered to pay his fare to the next station to the conductor, nor any fact from which the conductor could have inferred that he desired to do so. Held, error to refuse an instruction asked, “that it was not the duty of the company to carry the plaintiff to the next station unless he paid or offered to pay his fare to that point, and that unless the plaintiff tendered or offered to pay his fare to the next station the conductor had the right to put him off, provided the conductor had no reason to believe that the putting of him off at the particular place would injure him.”</p> <p>2. Putting Passenger off Railway Train.—If the conductor had the right to put the plaintiff off the car he could lawfully use only such force as was necessary to accomplish that object; and for any unnecessary violence the railway company would be liable. Damages, however, to be restricted to the direct consequences of that wrong, including as well physical pain as mental suffering resulting from accompanying insults, if any.</p>

<p>Divorce—Pleading—Abandonment.—Petition for divorce by husband on ground of abandonment contained the allegations “that the parties had been legally married in New Hampshire, and that they resided in Massachusetts thereafter until April, 1880, when and where the defendant without any cause whatever voluntarily left and abandoned the bed and board of petitioner with the intention of finally separating and living apart from him, and has continued so to do up to the filing of this petition, though often requested by petitioner to return to his bed and hoard and live with him. ’ ’ The petition was filed March, 1890. Held, that the petition showed legal grounds for divorce.</p>

<p>1. Estoppel—Ultra' Vires.—A party borrowing money from a private corporation not having legal power to loan money, and executing a note therefor, is estopped from denying the power of the corporation to loan the money when it sues for its recovery.</p> <p>2. „ Powers of Corporations — Statute Construed.—Article 587, Revised Statutes, provides: “No corporation created under the provisions of this title shall employ its stock, means, or other property, directly or indirectly, for any other purpose than to accomplish the legitimate purpose of its creation.” This is merely declaratory of the common law, by which corporations are strictly confined in their powers to the limits and purposes for which created.</p> <p>3. Illegal Contract by Corporation. — A corporate act becomes illegal when committed in violation of an express statute on a specified subject, or when it is malum in se or malum prohibitum. The loan of money by a corporation in excess or outside of its powers is not made illegal by said statute.</p>

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

<p>Appeal from Justice Court—Bond.—Judgment was rendered in a Justice Court for the value of personal property seized by a sheriff, against the parties causing the seizure and against the sheriff. The sheriff had also judgment over against his indemnitors, who were made parties. Appeal was taken to the District Court, and an appeal bond regular in all respects was executed to the plaintiff alone, not including the sheriff as an obligee. After several terms had passed in the District Court to which appeal had been taken, at which terms the plaintiff had amended his account, his motion to dismiss the appeal, because “the appeal bond was not conditioned as the law requires,” was sustained. The sheriff had also a motion to dismiss because the bond was not payable also to him. The sheriff’s motion was not called to the attention of the court and was not acted upon. Upon appeal, held:</p> <p>1. The general objection to the bond made did not raise the defect, if it be defective.</p> <p>2. The delay and the proceedings had during the delay constituted a waiver of the irregularity.</p> <p>3. The defect was not jurisdictional.</p>

<p>1. Parties—Judgment.—It is an elementary and fundamental rule of procedure as well as of right that a party can not he bound by a judgment without being allowed a day in court. He must he cited or have made himself a party to authorize a personal judgment against him.</p> <p>3. Sureties on Common Law Bond. — Sureties save in statutory bonds where the statute authorizes it must he made parties before judgment against them can he rendered.</p> <p>8. Case in Judgment.—An attachment at suit of Warren & Son was levied upon property of the East and West Texas Lumber Company. Pending the proceedings Harrison was appointed receiver of the lumber company. The property was sold by the receiver under order of the court and the net proceeds were by order of the court turned over to Williams and Mings, creditors of the company, they first executing a bond to the receiver obligating themselves “to pay such judgment as Warren & Son might recover,” with Itoland and Moody sureties. This bond was approved by the judge. Neither Williams and Mings nor their sureties were made parties, nor did they appear. Held, that a judgment rendered upon a trial of the attachment suit against the lumber company and Harrison, the receiver, against the obligors on the bond was without jurisdiction, and as to them the case is reversed.</p>

<p>Notice of Importance of Telegraphic Message—Damages.—A contractor for the building of a court house in Bosque County was under necessity of buying material, and went to Chicago for that purpose. Before starting he informed the local telegraph operator of the purpose of his journey, and that he' would telegraph to his brother touching the sending of the specifications to him. July 3 he telegraphed from Kirkwood, Missouri, that the specifications be forwarded to him at the Palmer House, Chicago. He reached Chicago July 7 and remained there until the 13th, but did not receive the specifications. He made several provisional contracts for material, but could not complete them in absence of the specifications. He returned home, and the dispatch was delivered July 19. In August he returned to Chicago, but could not buy • the materials needed at the prices given him in July. He sued the defendant, owner of the telegraph company, for damages. Held:</p> <p>J. The contracts the plaintiff made while in Chicago, with details of prices, etc., and the rise in prices in August, were relevant. They could have been anticipated from the notice of the purpose of his mission to Chicago, of which the operator had notice.</p> <p>3 In order to be entitled to damages from the advance in material from the delay it. was incumbent upon plaintiff to show that he had sustained the damages within such a time as by use of reasonable diligence he could have had the plans and speeifica ions forwarded him. The rise was not so shown, and it was error to refuse an instruction as to the effect of the plaintiff’s delay in buying as affecting the measure of damages.</p>

<p>1. Practice—Charge.—A charge expressing the law upon an issue in the case was properly refused when the court in its general charge had included the principle and applied it to the facts more fully than as requested. See example.</p> <p>2. Evidence of Fraud.—A sale hy an insolvent debtor made to a creditor was attacked for fraud by other creditors. The creditor had had ample security for his debt in a vendor’s lien note from the debtor. The note was surrendered to the debtor and it was at once given in security to other creditors. Subsequently the creditor bought the stock of goods of the debtor, satisfying his own debt and paying debts of others. Held, that the transaction in the surrender of the vendor’s lien note did not affect the subsequent transaction by which the stock of goods was transferred, it not appearing that there was any connection between the two transactions.</p> <p>3. Fact Case — Fraud. —See facts held sufficient to sustain a verdict negativing fraud in a sale by an insolvent debtor to one of his creditors, the creditor taking the goods in payment of his own debt and paying debts shown to be valid and owing to others.</p> <p>4. Payment.—In part consideration of the stock of goods the creditor agreed to pay a named sum to another'; he did not pay it in money, but gave his own note therefor, which was accepted by the other creditor. This was sufficient as a payment.</p> <p>5. Fact Case.—See facts upon which judgment will not he reversed. The verdict negativing fraud had testimony to sustain it.</p> <p>6. Cases Adhered to.—Seligson & Co. v. Brown, 61 Texas, 182; Oppenheimer v. Halff, 68 Texas, 412; and Elser v. Graber, 69 Texas, 222, adhered to.</p>

<p>1. Indebtedness of City.—The Constitution of the State requires that cities creating debts shall at the same time make provision for the payment of the same by assessing a tax to pay the interest and to provide a sinking fund. This does not apply to current expenses. An obligation not so made can not be enforced.</p> <p>S. Current Expenses of City. —An obligation by city to pay for the erection of a town hall and school building is not created for current expenses.</p> <p>3. Practice—Demurrer to Petition.—Allegations in an answer when denied in the petition can not be looked to in aid of the petition when considered upon demurrer. In such case the petition should be tested by its own allegations.</p>

<p>Affidavit for Attachment — Amount Due. — A small mistake in stating the amount of the debt, clearly shown on the face of the affidavit to result alone from a miscalculation of interest, will not be fatal to the attachment obtained upon such affidavit. See example.</p>

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

<p>Appeal from Smith. Tried below before Hon. Felix J. McCoed.</p> <p>The opinion states the case.</p>

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

<p>1. Challenges in Civil Cases in Impaneling Jury.—The statute provides (art. 3084, Rev. Stats.) that “each partyto a civil suit in the District Courtshall he entitled to six peremptory challenges.” And when the issues to be tried between the plaintiffs and the defendants are the same, then there are but two parties to the action, each entitled to six challenges.</p> <p>2. Same.—This general rule is not affected by the fact that the extent of liability of one of several defendants is different from that of the others, where the liability of each depends upon the same facts.</p> <p>3. Case Adhered to.—Hendrick v. Walton, 69 Texas, 192, adhered to, touching nonliability of master for death of a person caused hy negligence of servant. ■</p> <p>4. Liability at Common Law for Act of Servant.—At common law the master would he liable for damages caused by negligence of the servant in the matter of his business; e. g., in this case a parent sued a firm of druggists and their clerk for damages caused hy the clerk’s negligence in filling a prescription, the medicine as put up causing injury and probably death of child of plaintiff. In such case, the master would he liable for reasonable and necessary costs of medicine, medical attendance, and cost of care of the child made necessary hy the negligent act of the clerk.</p>

<p>Special Term of District Court. —Upon the statute (Rev. Stats., art. 1128) being complied with in other respects, it is no objection to the validity of the acts of the court at a special term of a District Court that it was held by a judge of another district and at a time when the judge of the district was holding the regular term of his court in another county of his district.</p>

<p>Presumption—Alteration in Deed.—Parties by parol contracted for the sale of a burial lot 20x44 feet. The price was paid by the vendees and possession was taken. Subsequently a deed signed by the husband and wife, the lot being the separate property of the wife, was tendered by the husband to one of the purchasers. It was signed by both husband and wife but not acknowledged. The deed called for 20x24 feet. The error was pointed out to the husbanjl, who promised to correct it. Four days afterward the deed was duly acknowledged by husband and wife and then delivered. There was no testimony as to when it was corrected from 24 to 44 feet for length of the lot. Held, that it should be presumed that the alteration was made before the wife’s acknowledgment was taken.</p>

<p>1. Vendee of Railway not Liable for Vendor’s Obligations.—In consideration of lands conveyed to the East Line & Red River Railway Company it covenanted that the vendors and the plaintiff should have free passage upon the railway, the title to the'land to become void on the “refusal of the company, its successors or assigns, to comply with all the obligations or considerations of the conveyance. The railway company sold to the Missouri, Kansas & Texas Railway Company, which was in the hands of Eddy and Cross, receivers. Plaintiff was refused free passage, and was put off a train. In action for damages against the receivers, held, that in order to recover it devolved upon the plaintiff to prove that the Missouri, Kansas & Texas Company had bought the East Line Railway, and also that it assumed its obligations, or at least promised to perform the particular contract upon which the action is based; Failing to prove such undertaking by the Missouri, Kansas & Texas Railway Company, the plaintiff was not entitled to recover.</p> <p>2. Same.—The remedy in absence of undertaking by the vendee company would be a suit to avoid the conveyance of the land, or for damages against the East Line Company.</p>

<p>1. Rescission of Contract for Exchange of Lands.—Where one of the parties to an unexecuted contract for the exchange of lands failed to execute the agreement on his part and the other party refused to complete the contract or to accept a substitute for the failure and offered and demanded a cancellation, it becomes the duty of the court to administer that relief. The court can not add to the contract and enforce it as altered.</p> <p>2. Decree of Rescission.-—See decree approved cancelling a contract for exchange of land, on account of the failure of the plaintiff to deliver possession of the land he had contracted to ’convey, or to surrender the lease notes for it, for the term it had been leased, or to pay the money on such notes. The defendant had made a payment. This was secured in the decree by lien upon the land of the plaintiff upon which the payment had been made.</p>

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

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

<p>. 1. Charge—Issues—Practice.—See pleadings and evidence involving issues upon which it was proper and useful for the court to charge the jury. The pleadings raise the issues.</p> <p>2. Charge. — Whén the court has given substantially the charge asked by a party upon his defense, the refusal to repeat the charge is no ground of'complaint. See example. • -. •</p> <p>3. Charge Upon Weight of Evidence. — See a charge held not to be upon the weight of evidence. It was substantially that a_ paper in evidence not signed by the plaintiff would not bind it unless adopted by it.</p> <p>4. Testimony to Offer of Compromise.—Suit upon a note; defense that collaterals held to 'secure it had been disposed of without consent of maker. He was examined in his own behalf as witness; and on cross-examination was asked if he had ever made a proposition to pay off a prior indebtedness also' secured by the collaterals. Objection upon the ground that it was an offer to compromise. The objection was overruled, and he answered that he had never made such offer. Held, no error was committed in compelling the answer.</p> <p>5. Remarks of Court Upon Examination of Witnesses. — It is practically impossible for the trial court to make its rulings on questions arising during the trial without saying something in explanation.' See remarks by court in the introduction of testimony held correct and proper. .</p> <p>6. Competent Testimony to Value of Stock of a Company.—It was competent upon the issue.of the value of the stock of a corporation which was held as collateral to prove that at Boston, where its headquarters were kept, only about one-fifth of their face value could be raised upon shares of the corporation.</p> <p>7. Secondary Evidence—Original Cut of State. —We are of opinion that the original of a letter relevant to the issues having'been shown tobe beyond the jurisdiction of the court, a copy was competent.</p> <p>8. Cross-Examination-—Explanation.—As a basis for impeaching a witness Ms affidavit in a garnishment was read. It was not error to permit the witness in explanation to state that the answer and affidavit had been made on advice of counsel.</p> <p>9. Disposition of Collaterals.—If the holder of a note should dispose of collaterals without consent of the maker of the note his rights would not he affected by such disposition of them.</p>

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

The petition, after describing the lots, etc., alleged the acts complained of substantially:' “That on August 1, defendant began to construct its line of railway over and across Railroad Avenue near plaintiffs’ premises, and two other lines to be used as switch yards, entering Railroad Avenue west of and within sixty feet of plaintiffs’ property on the south side of Railroad Avenue, thence running diagonally across the same in a northeasterly direction, and continuing said…

<p>1. Vendor’s Lien — Fact Case.—See facts held sufficient to support a decree foreclosing vendor’s lien. The note sued on and the deed of same date expressed the lien. Testimony was exhibited to show that the note was given for a balance of a running account for supplies.</p> <p>2. Same—Express Lien.—Conceding that the purchase money had been paid before the execution of the note, still the words of the note and of the deed show intention of the parties to recognize and give a lien upon the land. This was done in the papers executed, and regardless of the form, it was legal and could be enforced.</p>

<p>1. Tenancy at Will—Pleading.—The allegation of a tenancy at will extending for a term of between five and six years does not reveal in itself the fact that such tenancy was created by a parol or written contract. It is not necessary, therefore, to allege such tenancy as created by an instrument in writing.</p> <p>2. Statute of Frauds.—It is only where the lease or contract alleged shows by its terms that it is for a longer term than one year, or that the performance thereof was not to be within a year, that the defect would exist which would bring the action within the statute of frauds.</p> <p>3. Tenancy at Will.—The averment that11 the defendant occupied [the premises] by permission of the plaintiff as her tenant,” alleges in legal effect a tenancy at will.</p> <p>4. Statute of Frauds.—The statute of frauds works no change in our system of pleading. It regulates and establishes a rule of evidence. The contract declared on is not presumed to be oral, because that character of proof of it is excluded, and hence the presumption is rather that it is in writing when it is pleaded generally.</p> <p>5. Statute of Limitations—Rents.—The cause of action, filed October 29,1889, was for reasonable rental value of premises occupied by defendant by permission of the plaintiff from February 1, 1884, until the 1st day of September, 1889, is not obnoxious to exceptions from statute of limitations of two years. The plaintiff could recover for all rents falling due within two years from the institution of the suit. The nature of the contract as one oral or in writing would not affect the liability for rents save as affected by limitation.</p>

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

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

<p>1. Boundary Lines.—The north line of a survey being established and identified, and it being evident that other calls were made by mistake, the survey should be established by course and distance from such established lines. See example.</p> <p>2. Warranty of Number of Acres.—A contract for sale designated the number of acres in the tratít and the aggregate of price was made at §4.50 an acre. In a suit for purchase money a deficiency in the acreage would entitle the vendee to a corresponding abatement in the price, whether such deficit arose from conflicting superior titles or deficiency within the survey sold.</p>

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

<p>1. Statute of Limitation—Trastee Refusing to Act.—Suit by beneficiary in trust deed against the owner of the land and the trustee, alleged to have refused, December, 1882, to execute the trust by making sale. The suit was filed April 30,1888.</p> <p>Held, that the debt being barred the court could not give relief. The court could not give relief through a trustee that it could not through its regular process.</p> <p>2. Limitation in Favor of Trustee. — The petition alleged the refusal of the trustee to act, December, 1882. Cause of action then accrued against the trustee; it could not be affected by subsequent refusals, and any action against him was barred by suit brought more than six years afterward.</p> <p>ON MOTION FOB BEHEABING.</p> <p>3. Practice—Appointing Trustee.—Before appointing a trustee to sell, the court would from necessity investigate whether the plaintiff exhibits a claim which the law would enforce. It could not enforce collection of a debt barred by limitation when the statute was invoked.</p> <p>4. Pleading.—-The action was not framed against the trustee for liability for damages for refusing to execute the trust undertaken by him. This would be a cause of action, but it was barred had it been relied upon.</p>

The contents of the mortgage so far as discussed in the opinion are set out in the brief of the appellee. The opinion gives other necessary facts.

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

<p>1. Variance.—In the petition the note sued on was described as executed “on or about the 11th day of October, 1888.” The note offered bore date October 12, and in every other thing corresponded with the description in the petition. Held, that the note was wrongfully excluded. There was no material variance.</p> <p>2. Same.—The rule which should apply when the question of variance arises in the introduction of testimony is, that if the misdescription will tend to mislead and surprise the adverse party it should be noticed by the court; if not, it may he disregarded. A variance between the allegation and proof which ought not to have misled the adverse party to his prejudice is not material.</p>

<p>1. Assignment Held. Invalid.—Reynolds, of firm of Reynolds & Liston, made an assignment to Scott of the firm assets of Reynolds & Liston for benefit only of accepting creditors. The deed of assignment did not pretend to convey anything hut the firm assets, and could not have conveyed the individual property subject -to execution of Liston. Held, that the assignment was void.</p> <p>2. Venue—Trespass—Plaintiffs in Attachment.—The levy by actual seizure of personal property not subject to the writ of attachment under which seizure was made was a trespass, and plaintiffs causing the seizure are participants in the trespass, and the venue as to them when sued for the wrongful seizure lies in the county where committed. Eev. Stats., art. 1198; Gen. Laws 21st Leg., p. 48, and 20th Leg., p. 49.</p> <p>3. Garnishment—Custodia Legis.—One holding possession of a stock of goods under a void assignment was served with writ of garnishment by a creditor firm. Subsequently other creditors by attachment seized the goods and took them from the possession of the garnishee. Held, that the service of the writ of garnishment had the effect of placing the property of the debtors in the hands of the garnishee at the time in custodia legis, and of creating at least a right ad rem or quasi lien upon the property in favor of the plaintiffs in the writ to secure the payment of the debt sued upon (and followed by a valid judgment) superior to the rights of other creditors subsequently attaching the property. Authorities discussed.</p> <p>4. Lienholders may Sue.—A mortgagee or lienholder may sue for the conversion of the mortgaged property, or for a trespass upon it.</p> <p>5. Case in Judgment.—Focke, Wilkens & Lange having with full knowledge of the garnishment proceedings in favor of plaintiffs Leon & H. Blum, wrongfully seized the garnished effects and thereby destroyed the security of plaintiffs, were liable for the sum which could have been realized from the effects in due course of law.</p>

<p>1. Sufficient as Cause of Action.-—See petition held sufficient "by a surety in a judgment asking relief against it on the ground that the principal debtor had delivered to the attorney for the plaintiff the property ordered to be sold to satisfy it; that the property when so delivered was in value largely in excess of the judgment; that the property would have sold for more than the judgment; that it was not sold, but converted to the plaintiff’s use.</p> <p>2. Jurisdiction.—A county judge granted a temporary injunction in a case tried in his court. Subsequently he recused himself, and the case was transferred to the District Court. The District Court dissolved the injunction. Held, that the District Court had jurisdiction to try the case upon the merits. Its jurisdiction arose from the disqualification of the judge of the County Court, where, by Revised Statutes, article 2880, the injunction suit was returnable.</p> <p>3. Release of Surety.—Ordinarily the surety is not released if the creditor fails to have execution issued on his judgment-, or having one issued fails to have it levied. But if the judgment creditor goes to the extent of having an execution issued and actually levied, and thereby creating a lien on property out of which the judgment could he satisfied, such property becomes a fund to be applied to the judgment. In such case the creditor is chargeable with diligence, and is responsible for his own negligence in realizing upon it. The same rule should apply in case of am order of foreclosure upon property sufficient to discharge the judgment when it was actually delivered by the principal debtor to the attorney for the creditor for sale.</p> <p>4. Assignments of Error.—General assignments of error will not be considered by the court. See example.</p>

<p>1. Amending Judgment—Statute Construed—Clerical Omission.—Suit for value of eighty-seven bales of cotton burned on cars of the railway company. The case was tried by the judge. The bills of lading executed by defendant were attached to the petition. One was for fifty-one bales, one for thirty bales, and the other for six bales. The judge rendered his decision for plaintiffs for the eighty-seven bales burned, valuing it at 9J cents a pound, with interest. The judge in making up the amount of value by oversight omitted the six bales. The railway company appealed. After appeal and at the next term the plaintiffs by motion obtained an order amending the judgment, adding the value of the six bales. An ineffectual effort was made to have the amended judgment recognized by the Supreme Court in the appeal. The judgment as originally entered was affirmed. The railway company then paid the judgment so affirmed. The plaintiffs obtained execution for the amount of the six bales added by the amendment. Injunction was applied for by the defendant and on hearing it was dissolved. On error, held:</p> <p>1. The oversight of the court was not of that character that could be corrected after the term by motion under the statute. It was a judicial mistake, and could be corrected only by motion for new trial or appeal.</p> <p>2. What the trial judge remembered as explanatory of the error could not be made available in the motion to amend.</p> <p>3. Correction of a judgment after the term under the statute (Rev. Stats., art. 1355), can only be done by matter appearing in the record.</p> <p>4. The bill of lading attached to the petition for the six bales omitted is not a part of the record from which amendment could be made.</p> <p>2. Laches—Res Adjudieata.—In the answer to the injunction suit the plaintiffs in the original suit set out the facts, and in reconvention asked judgment for the omitted six bales. The original judgment was rendered April 30, 1888. It was affirmed at the Tyler Term following. The reconvention seeking equitable relief was filed May 6, 1889. No explanation was made of the delay. Held:</p> <p>1. That this is not a case where equitable relief can be granted. To do so the original judgment must be set aside. As affirmed by the Supreme Court it is res adjudicata of the matters involved in the controversy. That judgment was not void nor in any way invalidated by the amendment proceedings.</p> <p>2. Nor is there fraud, accident, or mistake of such a character as will authorize a revision of the judgment upon application for new trial after term; but if there were such fraud, etc., the right to set it up is lost by the laches of the parties and their failure to explain the delay in resorting to such remedy.</p>

<p>This is an action in trespass to try title for an undivided half of a section of land. Answer, not guilty.</p> <p>The evidence shows the plaintiff claimed an undivided half of the land through conveyance of the heirs of Jonathan S. and Cynthia Brown, his wife, both deceased. Plaintiff admitted that defendant owns the other undivided half through sale made by the administrator of Jonathan S. Brown, deceased. The defendant under the evidence • claims all the land under a decree of a District Court against the administrator of Jonathan S. Brown, deceased. The decree and papers in that case show that the heirs of Jonathan S. and Cynthia Brown were not parties to the decree. The evidence shows plaintiff’s title to be:</p> <p>1. Patent to Southern Pacific Railway Company.</p> <p>2. Deed of assignment from Southern Pacific Railway Company to Pope, Hall & Scott.</p> <p>3. Deed from Pope, Hall & Scott to Jonathan S. Brown.</p> <p>4. Deed of heirs of Jonathan S. and Cynthia Brown, his wife, both deceased, and mesne conveyances to plaintiff for an undivided half of the land.</p> <p>The evidence shows defendant’s title is:</p> <p>1, 2, and 3. Links of the title as given by plaintiff.</p> <p>4. Deed from administrator of Jonathan S. Brown and mesne conveyances to defendant for an undivided half of the land.</p> <p>5. A decree for the whole of the land by District Court of Harrison County, on July 27,1868, in a suit for title and partition by James E. Brown v. Wm. Umdenstock, administrator of Jonathan S. Brown, deceased, the file of court papers in the suit being put in evidence with the decree.</p> <p>6. Mesne conveyances from and under said decree to defendants.</p> <p>Jonathan S. Brown died, and administration was opened on his estate before the death of his wife Cynthia.</p> <p>The petition of James E. Brown in the suit in which the decree above mentioned was rendered alleged that the land was the partnership property of the firm of J. E. & J. S. Brown, and that petitioner was a member of the firm and entitled to half of the land. He prayed for partition, and offered to pay one-half of the debts of the estate of Jonathan S. Brown, deceased. The land involved in the suit was thirty-two sections granted by the State to the Southern Pacific Bailway Company. Four hundred sections had been conveyed by the company to Pope, Hall & Scott, as trustees, for the sole use and benefit of a number of creditors, whose names and the amounts due each were in a schedule attached to the deed, and in proportion to the amounts due each of them.</p> <p>On the schedule of beneficiary creditors appeared, “J. E. & J. S. Brown 42,406.36.” Said Pope, Hall & Scott conveyed thirty-two of said 400 sections of the land conveyed to them to J. S. Brown, reciting in the deed the conveyance to them by the Southern Pacific Bailway Company, and that it was “in trust for the benefit of certain persons named in schedule A attached to said deed, among whom J. E. & J. S. Brown are parties named and interested therein; and whereas, we the said trustees have received a large amount of said lands, for which patents have been issued by the said State of Texas, which patents have been distributed by lot among the various parties interested therein under the deed aforesaid; and whereas, in said distribution the following among other patents fell to the lot of the said J. E. & J. S. Brown, who have instructed us by their written order to execute a deed of conveyance to Jonathan S. Brown to the following sections of said land,” etc.</p> <p>The administrator agreed in writing that James E. Brown should have a decree for half of the land, and on this agreement the court partitioned and gave plaintiff sixteen sections thereof; and the decree recited that plaintiff should pay one-half of the firm debts.</p> <p>Administration on estate of Jonathan S. Brown was first granted his widow. She died, and one Sophia Jilson was appointed administratrix de bonis non, and was removed, and William TJmdenstock appointed administrator de bonis non.</p> <p>The plaintiff excepted to the introduction in evidence of the decree and file papers therewith; in substance, because irrelevant and incompetent; because they show that the administrator was sole defendant, and the evidence shows the children-, minors, of Jonathan S. and Cynthia Brown, his wife, both deceased, were not parties; and the decree in no way affected their title as heirs, or the title of plaintiff, who claims by mesne conveyances under said heirs, and said decree is a nullity as to plaintiff.</p> <p>The court, holding that the decree passed title to the land as against the heirs, accordingly instructed a verdict for defendant.</p> <p>Appellant has assigned errors as follows:</p> <p>1. The court erred in overruling the plaintiff’s exception to the admissibility and competency in evidence of the decree from the District Court of Harrison County, Texas, in favor of J. E. Brown against the administrator of Jonathan S. Brown. The legal title to the land—the undivided one-half involved in suit—was in plaintiff by regular chain of deeds under and through the heirs of J. S. Brown and Cynthia, his wife; and as to plaintiff, the said decree of the District Court was a nullity, because it was a decree for land and the title thereto and of partition in favor of a plaintiff who had no written evidence of any title or claim to title; and the decree was rendered on an agreement thereto by the administrator of the estate of J. S. Brown, who was the sole defendant; and the heirs of J. S. Brown and Cynthia, his wife, both then deceased, were minors, and not parties to the suit, and the legal title then in said heirs, by descent, is held by plaintiff unaffected by said decree.</p> <p>2. The court erred in charging the jury to find for the defendant; said charge, in connection with the evidence, being in effect that the decree of the District Court of Harrison County in cause Ho. 5055 passed the title of the land as against the heirs of J. S. Brown and his wife, both then deceased, when said heirs were not parties to the suit, and the sole defendant was the administrator of the estate of J. S. Brown; and the plaintiff in said suit had shown neither title nor any written evidence of title or for conveyance of title, and the decree was as by consent; the administrator, the sole defendant, and said decree and the file in the cause so show.</p> <p>3. The court erred in admitting the decree in cause Ho. 5055, of the District Court of Harrison County, and in charging the jury .to find for defendant, because there was no administration on the estate of Cynthia Brown, and the lands decreed were community property of J. S. Brown and herself, and her heirs were not parties to the decree.</p> <p>[This statement accompanied the opinion.]</p>

<p>1. Will—Construction—Intent.—A will by its terms clearly expressed the intent to divide the estate devised between the wife and daughter of the testator. The will proceeded to designate specific items of property, real and personal, to each of the devisees, making substantially an equal partition of the estate. The title to one of the tracts of land indicated as given the daughter failed. Held, she had a right of action against the widow for contribution for her share of the loss.</p> <p>2. Same—Rules of Construction.—Ail other rules that aid in the construction of a will are subordinate to that which requires its enforcement according to the intention of the testator that is manifest from the language used, in which such intention is expressed.</p>

<p>1. Conditional Sales.—The facts pleaded show an agreement on the part of appellant to sell machinery to the defendant in the attachment suit fór a cash consideration of §200 and two notes for §300 each, and that the sale was subject to a trial of the machinery by the purchaser. The machinery when levied on was in possession of the defendant in attachment, which had not tested it nor made the cash payment. Sold, that the title to the machinery had not passed, and that the possession was but a bailment. These facts presented a legal title in the seller, as an issue upon the trial of the right of property in the machinery when levied upon as the property of the defendant in attachment.</p> <p>3. Agreement to Sell.—Shipment of machinery to a purchaser, it to test the machinery, and if satisfactory to pay cash §200 and execute two notes of §300 each; refusal of the purchaser to test it and failure to pay the cash payment show but a contract to sell, not an executed contract of sale, although the property had reached the purchaser.</p> <p>3. Same — Statute Construed. — Such transaction does not come within article 3190a, Sayles’ Civil Statutes, with reference to the reservation of title to or property in chattels as security for the purchase money thereof.</p> <p>4. Clerical Error.—A clerical error in pleading which is corrected elsewhere is immaterial. See example.</p>

<p>1. Fellow Servant. —While mere grades of rank of employes of a railway company engaged in a common employment will not destroy the relation of fellow servant, yet where one is authorized to employ and discharge servants working under him and to control them in their labor, his negligence would be that of the master. Douglas v. Kailway, 63 Texas, 564, adhered to. See example.</p> <p>2. Master’s Duty to Employe to Furnish. Safe Implements. ■— The court having instructed the jury that if the iron clamps used to fasten the belt used by the employer were in common use and not known to be dangerous, the defendant would not incur liability for injuries caused by them to an employe, when requested and there was some evidence upon the issne the court should have given the converse of the proposition. There was some evidence to the effect that those used by defendant on this belt were not like those in common use, and were more dangerous By reason of the difference.</p> <p>3. Same.—The master owes to the servant ordinary care to provide safe machinery, and is not bound to obtain absolutely safe machinery, etc.</p>

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

<p>This is a second appeal. The facts are stated in 74 Texas, 663, et seq.</p>

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

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

<p>Chattel Mortgage Held Hot Fraudulent.—Murphy ran a shoe business at Commerce. In partnership with Manning he ran another house at Fairlee. The partnership was insolvent. So was Murphy. Manning sold out his store at Fairlee to Murphy for his note for §250. Immediately thereafter Murphy executed to Mars a chattel mortgage upon both stocks to secure certain creditors. Manning was the eighth in number, and Howell Bros. Shoe Company the nineteenth and last named. They were the individual creditors of Murphy. It did not appear that Manning was insolvent. Howell Bros. Shoe Company sued out an attachment against Murphy, under which the goods were seized by Mason, sheriff, etc. The goods were sold, and Mars brought suit for their value when taken from his possession under the chattel mortgage. Held:</p> <p>1. It not appearing that anything would have been left of the partnership assets after payment of firm debts, in which Murphy’s individual creditors could have shared, they (Murphy’s creditors) could not be injured by the sale and mortgage of the partnership property.</p> <p>2. In absence of evidence of Manning’s insolvency, it does not appear that the collection of firm debts was hindered or delayed by Murphy’s mortgage.</p> <p>3. In absence of testimony of fraudulent intent, known by the assignee or the creditors secured, the mortgage could not be set aside as fraudulent.</p>

<p>1. Constitution—Regulating Caption of Laws.—Section 35 of article 3 of the Constitution of the State provides that “no hill (except general appropriation hills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title.” Construing this, held:</p> <p>1. It must be deemed settled that this provision is mandatory, and hence binding upon every department of the government.</p> <p>2. It has been steadily held that a title which in substance is a compliance with the requirements of the Constitution is sufficient.</p> <p>3. It can not be said that its subject is expressed in the title when the title does no more than to furnish a reference to some other writing, document, or law from which by search the true purpose of the bill may be discovered.</p> <p>4. Under like pro visions courts of other States have held that the title to an amendatory law having application to a specific subject, and not to a body of laws enacted by one act, must embrace the title of the act to be amended in order to give the subject of the law, unless the title of the amendatory act does this in some other manner.</p> <p>5. A mere reference to something else for information as to the subject of the bill is not a compliance with the Constitution.</p> <p>2. Alien Land Law of 1891.-—The title of the act relating to property rights of aliens, approved April 13, 1891, is “An act to amend title 3, articles 9 and 10, and to add articles 10a, 10b, 10c, lOd, lOe, lOf, lOg, and lOh, and to repeal all laws in conflict herewith.” This does not name the body of laws by its title or otherwise which - it was the purpose of the Legislature to amend, nor does it otherwise designate the subject in reference to which it was intended to legislate.</p> <p>3. Same.—“ There is nothing in the title of the act under consideration from which the subject may be known, and were we to hold it a compliance with the requirement of the Constitution we would deny to that law the effect which its letter and spirit show it was intended to have.”</p>

<p>Alien Land Law—Case Adhered to.—The Act of Twenty-second Legislature, chapter 62, General Laws (p. 82), approved April 13, 1891, “to amend title 3, articles 9 and 10,” etc., held void, the court adhering to opinion in Gunter v. Texas Land and Mortgage Company, Limited, ante, page 496.</p>

<p>The former appeal, 74 Texas, 667, contains a partial statement of this case.</p> <p>This opinion, taken with the report of the first, presents a full statement of the case.</p>

<p>1. Res Gestae.—All declarations or exclamations uttered by the parties to a transaction, and which are contemporaneous with and accompany it, and are calculated to throw light upon the motives and intentions of the parties to it, are clearly admissible as parts of the res geste.</p> <p>2. Same. — The rule of decision adopted in this State admits as parts of the res geste not only such declarations as accompany the transaction, but also such as are made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterance of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they were the result of premeditation or design. See example.</p> <p>3. Liability of Master for Act of Servant.—Suit for personal injuries caused by act of a brakeman in forcing plaintiff from a freight train. The court charged the jury “that a railway company is not responsible for the willful trespass or unlawful acts of its agents done clearly outside of the scope of their employment; but when a brakeman on a train undertakes to keep persons from getting on his train, or to expel them, in the absence of proof to show that this was outside of the scope of his duties there would be no presumption that such was the fact.” This practically cast the' burden of proof upon the defendant. The burden was upon the plaintiff to show that the servant was acting within the scope of his authority.</p> <p>4. Same.—To render the master liable for the act of his servant it must be done within the scope of the general authority of the servant, dn the furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed.</p> <p>5. Conductor—Brakeman.—The conductor is recognized as the master of the train. The brakeman would seem restricted to the business indicated by the name applied to the service; and there does not appear any necessity for conferring upon a brakeman authority to keep trespassers from the train. The conductor has such power.</p> <p>6. Briefs, Form of. — Assignments of error should not be all grouped together, but each should be presented separately, with its appropriate propositions and statements under it.</p>

<p>Hearsay—Corroboration.—In an action for damages for wrongful attachment proceedings, upon the trial it was in issue whether the debt in aid of collection of which the attachment had been sued out had been paid. The plaintiff in the action for damages testified to a payment to an agent of the defendants (who were plaintiffs in attachment). The agent denied the payment. The plaintiff in his testimony stated that he had drawn the money from a bank to make the payment, and had stated his purpose when he got the money. The banker was called by the plaintiff to corroborate his testimony, and over objection testified that plaintiff had drawn the amount he had named from the bank, and had told witness his purpose to pay, etc. Held, the testimony of the banker was improper and its admission ground for reversal.</p>

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

<p>1. Railway Companies Must Afford Opportunity to Buy Tickets.—Article 4258b, section 9, Sayles Civil Statutes, is not complied with by the mere keeping open of the ticket office for half an hour prior to the departure of the train. There must he in the office an agent to furnish and sell tickets to persons desiring to buy.</p> <p>2. Same.—Unless such agent is kept at the ticket office, and if a passenger, after applying at the office and not being able to get a ticket, enters a car, he can not be charged in excess of 3 cents a mile. The conductor has no right to exact more, and to put the passenger off the train for refusing to pay more, is unlawful.</p> <p>3. Verdict Not Excessive.—The passenger unable to get a ticket at the office, no agent being there, embarked upon the train. He tendered 3 cents a mile, and for refusing to pay more was put off in the night time when it was raining, and six and a half miles from his destination. Held, that a verdict for §200 damages was not excessive.</p>

<p>1. Negotiable Note—Purchaser. —As promotive of the circulation of commercial paper it has been the rule of decision of our courts that the possession of the instrument acquired in good faith in the usual course of trade gives property, whether the i>erson from whom received have title or not.</p> <p>2. Same—Statute Construed.—Article 265 of the Revised Statutes, omitting the words “in the usual course of trade,” can not affect the sale; for it would be admissible always to establish mala tides by circumstantial evidence, and the manner in which the title should he acquired would he a subject of inquiry as tending to establish the main fact of good or bad faith.</p> <p>3. Valuable Consideration.—A promissory note given by the purchaser of such paper would be a payment. Inadequacy in price, however, would be a circumstance on the issue of good faith.</p> <p>4. Fact Case.—See facts held sufficient to establish a purchase in good faith from one not the owner.</p>

<p>1. Attachment—Variance Between Affidavit and the Petition.—In the petition the note sued on was described as of date December 2, 1890, and due sixty days</p> <p>thereafter, with interest from maturity. The affidavit described it as bearing interest from date. Held, the attachment should have been quashed on account of the variance.</p> <p>2. Attachment—Practice.—No presumption will be resorted to in support of any uncertainty in attachment proceedings which is not explained by the record. Foeke v. Hardeman, 67 Texas, 175.</p>

<p>Notice of Importance of Telegraphic Message.—The plaintiff sent a telegram to her son by a former marriage, as follows: “Your stepfather died this morning.”</p> <p>The agent of the telegraph company receiving the message was informed by the plaintiff’s son, who delivered him the message, “that his father was dead, and that he wanted the telegram sent at once; that it was important that it be sent at once.” The fee tor sending was paid. The message never reached its destination. The plaintiff testified that she desired the presence of the son to whom the message was sent, etc. JSeld:</p> <p>1. The telegraph company was sufficiently put upon notice of the circumstances making important the speedy delivery of the message.</p> <p>2. The message could be regarded as a request to the son to come to his mother in her distress.</p> <p>3. That the mental suffering caused by the son not reaching his mother to aid her in the funeral and burial of his stepfather was ground for damages.</p> <p>4. A verdict for §300 was not excessive.</p>

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

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

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

<p>Both parties appeal.</p>

<p>1. Duty of Telegraph Company in Delivering Messages.—Where a telegram is addressed to one party in care of another the duty of the telegraph company is not performed by search for the one to whose care it is sent. Effort should be made to deliver to the party to whom addressed.</p> <p>2. Fact Case—Negligence.—A telegram was sent to Rusk addressed to plaintiff, in care of “Mr. Basall.” No such person as Basall resided there. No effort was made to deliver to Houghton, the plaintiff, who was well known at Rusk, and hoarded within two hundred yards of the telegraph office. Held, these facts rendered the telegraph company liable on account of its want of due care to deliver the message.</p> <p>3. Verdict Excessive.—A verdict for §4500.25 held to be excessive. The telegram was addressed by the wife to her husband: “Lush is worse; come home.” The son died before the father reached him.</p>

<p>This is an appeal from a judgment for $5000 for personal injuries suffered by Ryan in a collision while an employe of the appellant.</p> <p>The opinion gives the facts.</p>

<p>1. Sale—Evidence Insufficient.—See evidence held insufficient to prove an executed sale of a stock of liquors, no delivery or contract passing the property without delivery being shown.</p> <p>2. Same.—The purchase at a sheriff sale and the payment of the price with intent that another should have a part thereof does not pass title to such, other, although that to be taken by him was “all liquor in unbroken packages,” and was stored in a separate room from the other stock purchased.</p>

This is a suit by information in the nature of a quo warranto, instituted by the State of Texas on the relation of Alice Wilson, A. C. Jones, Hugo Heldenfels, Yiggo Kohler, J. J. Welder, B. K. Klipstein, F. E. Burr, William Burr, J. M. Chittim, Thomas Welder, and H. W. Wilson, to oust H. P. Mathews, mayof of the city of Beeville, and B. Law, T. C. Williams, T. J. Skaggs, T. J. Hart, and W. H. George, aldermen of said city of Beeville, from office, and to declare the…

<p>Disqualification of District Judge.—A law firm was consulted by and acted for the citizens in obtaining and executing an order for an election for purpose of incorporating under the general incorporation law. The town was incorporated. One member of the law firm became the district judge. An attack by quo warranto proceedings was made upon the legality of the incorporation. The district judge made the order .permitting the petition to be filed, but entered his disqualification before trial. A special judge was elected, who dismissed the proceedings upon the ground that the order nisi was a judicial act which the judge granting it could not make. On appeal, held:</p> <p>1. The judge of the district was disqualified by reason of his service in conducting the election.</p> <p>2. The order granting leave to file the petition was a judicial act, and the judge being disqualified to try the case, could not make the order.</p> <p>3. The dismissal of the proceedings was not error.</p>

<p>1. Bona Fide Purchaser—Legal Title.—If a vendor have such written evidence of his title to the land to be sold as under the laws of the State conferred on him an estate in fee, nothing further appearing, then it must be held in reference to the matter that he has not only title, but also legal title, notwithstanding he may have as between himself and others no beneficial interest.</p> <p>2. Same.—Such a title is a legal title because it is such evidence of right as may be enforced in a court of law; and this is so because it is the evidence of ownership required by law and provided by the statute when lands are to be conveyed</p> <p>3. Bona Fide Purchaser.—In determining whether one is a bona fide purchaser the inquiry is upon what evidence of title did the purchaser act; and if this proved ownership in the vendor, acquired in the mode prescribed by law, then in the absence of notice of some fact showing that the vendor had not such ownership or beneficial interest as the evidence showed to be in him, or of some fact sufficient to require inquiry as to this, the purchaser is authorized to believe and to act upon the belief that the vendor has the beneficial ownership or right shown by the evidence.</p> <p>4. Legal Title—Community—Wife's Estate.—Where land is conveyed by deed to the husband, no beneficial interest of the wife appearing in the deed within the meaning of the law, the wife has no legal title, and upon" her death the law does not confer upon her heirs any higher evidence of right or estate in character different from that held by her.</p> <p>5. Title Passed by Death of Wife to Her Children.—The law does not cast upon the heirs of the wife at her death the legal title in lands of the community, title to which on the face of the deeds is vested in the husband, when the term legal title is used with reference to the rights of a bona fide purchaser from the survivor.</p> <p>6. Cases Qualified.—Yancy v. Batte, 48 Texas, 46; Johnson v. Harrison, Id., 257, discussed and limited.</p> <p>7. Cases Adhered to.—Edwards v. Brown, 68 Texas, 329; Hill v. Moore, 62 Texas, 610; Wren v. Peel, 64 Texas, 380; and Pouncey v. May, 76 Texas, 565, adhered to.</p>

<p>1. Practice in District Court—Finding by Court.—If counsel on the trial are of opinion that findings of fact should he made by the court upon issues not noticed in the findings made, the omission should he called to the attention of the trial judge.</p> <p>2. Innocent Purchaser.—A purchaser from the surviving husband of land conveyed to him during the marriage upon full consideration and without notice of the fact that his vendor had been married, etc., takes good title against heirs of the wife.</p> <p>3. Adultery by Husband.—Abandonment of wife by husband and his living in adultery does not deprive him of his interest in community property, nor withdraw any of the evidences of his right; nor would it confer upon the wife any rights save of management, or if necessary the disposition of the property.</p> <p>4. Cases Adhered to.—Edwards v. Brown, 68 Texas, 329; Hill v. Moore, 62 Texas, 610; Wren v. Peel, 64 Texas, 380; and Pouncey v. May, 76 Texas, 565, adhered to.</p>

<p>1. Levy Upon Personal Property—Sale.—It is ordinarily necessary to the validity of a levy upon personal property that the officer take such possession of the thing levied upon as its nature renders practicable. It is also ordinarily necessary that such property should be at the place of sale and subject to inspection by persons desiring to purchase. «</p> <p>2. Statutory Levy Upon Live Stock in the Range.—Article 2293, Revised Statutes, provides that “A levy upon horses, * * * cattle, or hogs running at large in a range, and which can not be herded or penned without great inconvenience and expense, may be made by designating by reasonable estimate the number of animals, and describing them by their marks and brands, or either; such levy shall be made in the presence of two or more credible persons, and notice thereof shall be given in writing to the owner or his herder or agent, if residing within the county and known to the officer.” The statute, article 2314, further provides, that “When a levy is made upon * * * cattle or hogs running at large in the range, under article 2293, it is not necessary that such stock or any part thereof should be present at place of sale, and the purchaser at such sale is authorized to gather and pen such stock and select therefrom the number purchased by him.” Construing these provisions, held:</p> <p>1. “ Running at large in the range’ ’ will apply to cattle running at large with other cattle in a pasture of about 400,000 acres, and including parts of three counties, and intersected with roads, although the entrances may be guarded.</p> <p>2. In making a levy and sale upon cattle so running at large, under article 2293, the sheriff is not restricted to cattle within his county at time of the levy and sale.'</p> <p>3. It is evident that the levy and sale do not pass title to any particular animals, but gives only the right to select the number sold. The right of the purchaser is “to gather and pen such stock and select therefrom the number purchased by him.”</p> <p>4. The levy and sale confers the right to gather, pen, and select from the entire stock, regardless of county boundaries if necessary, the number purchased, wherever the animals may be found.</p> <p>5. The officer is required to “designate by reasonable estimate the number of animals,” and this measures the extent of the purchaser’s right to select and hold, or in other words limits his purchase.</p> <p>6. When a levy is made upon cattle running at large in the range, to be valid it must be without restriction based on county boundaries, on estimate as provided by the statute, and when thus made a sale.under it will confer on the purchaser the right to gather from the entire stock, though found in a county other than that in which the levy and sale are made, a sufficient number to enable him fairly to select and appropriate the number he becomes entitled to by the sale; and a levy and sale of cattle in the range not thus made can not confer title, because not made in accordance with law.</p> <p>3. Execution Sales of Personal Property.—Levies and sales of personal property made in some manner other than that prescribed by the statutes will be invalid, because the power of the officer is limited as to mode of exercise by these°laws, made to secure for the benefit of both creditor and debtor a fair price for the thing to be sold.</p> <p>4. Same—Case in Judgment.—In this case the levies (one levy and sale for each county of an estimated number assumed to be in each) were restricted to cattle in the respective counties where they were running. [See opinion.] The sales were made in pursuance of such levies. The same purchaser bought at all the sales. These sales did not confer title upon the purchaser.</p> <p>5. Illegal Execution Sales—Presumptions.—In sales not made in accordance with laws the conclusive presumption is that the property did not bring such a-price as if the levy and sale had been legally made.</p> <p>6. Sale of Mortgaged Property.—Personal property in possession of a trustee to secure a lien may he levied upon and sold under the statute; levy made by giving notice to the person in possession; the purchaser being entitled to the possession upon complying with the conditions of the pledge. Rev. Stats., arts. 2292, 2296, 2313.</p> <p>7. Same.—It seems that a purchaser under a levy and sale of cattle in the range could not acquire possession until he should satisfy the mortgage under which the cattle were held by a trustee at time of the levy.</p>

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

<p>1. Duty of Common Carriers of Live Stock.—It is the duty of a railway company carrying live stock to provide places where stock so carried may be fed and watered in any kind of weather without injury, so far as this can be done by the use of proper care. It was proper to refuse an instruction, “that if the defendant’s pens furnished plaintiff’s stock at Palestine were good and suitable in ordinary good weather, but were muddy by reason of recent rains, then plaintiff would not be responsible for damages resulting from the condition of said pens.”</p> <p>2. Evidence—Common Law. — An instrument was offered by the defendant, signed by the plaintiff and the conductor in charge of the train after leaving Palestine, showing the condition of the stock at its date. Defendant also offered to prove the same fact by other testimony. The instrument was signed by a witness not called nor his absence accounted for. On objection to the instrument for the reason that it was not proved by the subscribing witness the court excluded it. The ruling was in accordance with law. Such was the common law when adopted as the rule of decision in this State.</p>

<p>1. Citation—Nature of Plaintiff’s Demand.—Article 1215, Revised Statutes, does not require the citation to state the cause of action with anything like the same particularity as the petition. It may give a correct description of the demand in general terms. A citation in a suit upon three promissory notes executed by defendant to the plaintiff, and to foreclose a mortgage, alleging the dates and principal of each, referring to the notes as part of the petition, giving date of mortgage and that it is on twenty-one lots described in the petition, prayer for interest and attorney fee and foreclosure, held sufficient.</p> <p>2. Intervention.—After the death of the wife the husband executed a deed of trust upon lands. In the deed the rights of the wife’s children were expressly recognized. In suit by the holder of the claim to foreclose, the children of the wife were not entitled to intervene. The foreclosure would not affect their rights in the lands. The defendant in the suit could not complain at the refusal of the court to allow such intervention.</p> <p>3. Correction of Judgment After End of Term.-—See facts sustaining the refusal of the court at a subsequent term to alter the judgment so as to apply to the south half of a described 100 acres tract, instead of the north half. Neither fraud nor mistake was shown, nor was delay explained. The mistake, if it was one, was judicial and not clerical.</p>

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

<p>1. Charge Erroneous in Assuming a Disputed Fact.—The evidence being conflicting whether Kimball was agent of the insurance company, it was error in the charge in assuming his agency and charging that the company was chargeable with knowledge communicated to him.</p> <p>2. Pleadings—Waiver.—The pleadings of the plaintiff suing upon a fire insurance policy and not pleading a waiver of matters and conditions contained in the face of the policy can not avail himself of such waiver. In absence of pleadings setting up the waiver it was error in the court to submit it as a defense.</p> <p>3. Insurance Broker—Agent.—A distinction seems to obtain between an insurance agent and an insurance broker, the latter being 11 one who procures insurance and negotiates between insurers and insured.” The broker is regarded as the agent of the insurer as to the premium, but for nothing else. “He is the agent of the insured in effecting the policy, and in everything that has to be done in consequence of it.” Knowledge of the broker- as to any matter connected with the effecting of the insurance is not to be imputed to the insurance company.</p> <p>4. Leased Premises.—The policy in express terms provided that it should become void if the building stood on leased land. There being testimony to such lease of the land, held, the stipulation is a warranty by the assured and can not be ignored. It was error to withdraw the issue from the jury, there being testimony raising it.</p> <p>5. Adjusters—Waiver.—The plaintiff alleged waiver of filing proof of loss. There was testimony that proofs of loss were furnished an adjuster representing the insurance company immediately after the fire, and that the adjuster absolutely refused to pay, and notified the insured that he would have to collect through the courts. Under this testimony the adjuster would be deemed the representative of the company, and a refusal to pay by him a refusal by the company. Such a refusal would constitute a waiver of proof of loss.</p> <p>6. Interest on Insurance Policy.—In the policy it was payable “sixty days after the execution and delivery of full proof of loss at the office of the company in Tyler. ” If a waiver of such proof be shown, the time of payment would be sixty days from the date of the waiver, and interest should be given from the maturity of the cause of action.</p>

This was a suit of trespass to try title, brought by Jacob Kuechler, the appellant, in the District Court of Falls County, December 14,1886, against the appellee W. S. G. Wilson, and others. It is a question of boundary. Appellant claimed title to the land in controversy as a part of the Esther Clark survey, which is a junior survey to those surrounding it.

<p>Error from Smith. Tried below before Hon. Felix J. McCord.</p> <p>The case of Cheek v. Herndon, ante, p. 146, and the opinion here, give a statement.</p>

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

This is an appeal from a judgment for $10,000, recovered by the widow, children, and mother of a brakeman killed in the employ of the appellant. The deceased was killed while attempting in the night to uncouple in a moving train a car from the tender of the engine drawing the train. The facts are set out in the opinion.

<p>This suit was originally brought by W. H. Lyons & Co., merchants, of New York, against Nathan Connally, to hold him personally liable for certain goods, wares, and merchandise sold by them to the firm of Connally & Co., of Sulphur Springs, at his instance and request.</p> <p>Defendant answered by general demurrer, and specially excepted to the petition that there was no allegation that the Connallys were insolvent and unable and unwilling to pay. Defendant excepted, also, that the petition disclosed a want of proper parties, and that the account was barred by limitation.</p> <p>The demurrers and exceptions were overruled, and trial was had before the court, October 31, 1889, and judgment was rendered in favor of the plaintiffs. The judge filed his conclusions of fact and law, and the case has been appealed without a statement of facts. As far as pertinent to the appeal the facts found are as follows:</p> <p>“1. I find that on the 26th day of February, 1875, M. A. T. Connally executed an instrument in writing, of which the following extracts evidence its nature and purpose, to-wit: ‘In consideration of the fact that my success in said business is principally owing to the efforts and assistants of my father C. P. Connally, as well as to those of my brothers Drury A. Connally and Nathan Connally, who have not been sufficiently remunerated by me for their unremitting diligence, industry, and attention to my said business; commencing as I did on little capital, with their assistance that capital has increased till it now amounts by estimation correctly taken, including my storehouse on the west side of the public square of said town, to the sum of $13,455.83; in and for the further consideration of the natural love and affection I have for and bear to my said father and all my brothers, to-wit, Drury A. Connally, Uathan Connally, Commodore P. Connally, Jr., David M. • Connally, Lafayette T. Connally, James H. Connally, and Edgar Connally, I hereby sell, transfer, and convey in absolute sale, except the one-ninth of the amount of the same, which I reserve for myself and subject to my control, all my right, title, and interest in and to the goods, wares, and merchandise which I now have on hand, as well as moneys, notes, claims, and accounts due me and growing out of and with my said mercantile business carried on in Sulphur Springs, together with the lot of land and storehouse erected thereon, and which I am now occupying in my said business (reference is here made to record book for full description), all of which amounts to the sum of $13,455.83, and said property as aforesaid and described as aforesaid I now, in consideration as aforesaid, turn over and deliver to my said father, the said C. P. Connally, in good faith, being wholly out of debt at this time. I do so, however, in trust, except as hereinafter set out, as follows: Said sum of $13,455.83 is now by me divided into nine equal shares, each share amounting to the sum of $1495.09; the whole amount is still to be kept together and undivided, except as hereinafter provided, and my said father O. P. Connally is hereby appointed trustee of said fund, and is to continue said sum and its increase in amount, if any there be, in active and constant operation in the business heretofore by me pursued, to-wit, merchandising, and in his own name, or in such name and style as he may prefer, and is to keep correct accounts of all gains and losses, so that at the end of each year he can by his balance sheet correctly show how said business stands. The one-ninth part of the amount here by me transferred or assigned to my said father is transferred to him in absolute and unconditional sale, together with its increase. One-ninth part thereof with its increase, in case the said sum should by his management be increased, is reserved for myself, and he is to turn over the same to me whenever I or my assignee or legal representative shall demand of him so to do. The other seven-ninths and its increase shall go to the support and maintenance and education, or as much thereof as may in my father’s estimation be necessary for that purpose, of my brothers, whose names I have already herein given. Any of my grown brothers, and when they shall become grown, who will remain with my said father, the said trustee herein, and assist him for reasonable wages, such as he may contract to give them, are to be boarded out of said fund, but not otherwise.</p> <p>“ ‘When and after each of my seven brothers shall become of 25 years of age, my said trustee shall advance and pay over to him his pro rata of the amount then on hand, and said trustee may advance and pay over said pro rata share to any one when he thinks safe and prudent to do so even before he arrives at the age of 25 years, and especially so if he seem inclined to attend energetically to any species of business and prosper in said business; but no amount under this condition is to be advanced before the age of 25 years for uncertain or prodigal purposes. I mean by his pro rata above set forth, the one-seventh interest of the brothers’ interest or part at the time the advancement shall be made, and without regard to the amount now transferred. The advancement when so made must be taken by said brother in full payment of his portion, without recourse on the main fund for further advancement. A final settlement shall not be demanded nor had, nor shall any of the beneficiaries of the trust herein created force by law or equity a final settlement by trustee, till my youngest brother Edward shall arrive at the age of 25 years; or, in case of his death, till the period of time when he would be 25 years of age if alive. My father, the said trustee, shall not under any circumstances be required to give bond to faithfully carry out the trust herein created. I trust only to his integrity to do so; and I further provide that said trustee, my father, the said C. P. Connally, shall, for his services in faithfully carrying out this trust, and for his services in managing said mercantile business, have and receive $1000 per annum of and out of said fund here conveyed in trust as above set forth. Witness my hand,’ etc.</p> <p>“ 2. That C. P. Connally accepted such trust, and continued to execute the same till his death.</p> <p>“3. That on the 24th day of March, 1882, after the death of C. P. Connally, all the parties at interest being before the court, the District Court of Hopkins County, Texas, assumed jurisdiction, and appointed Hath an Connally, the defendant herein, and one of the beneficiaries in said trust, as trustee, with full power to execute the said trust according to the terms of the trust deed; and I find that he accepted said appointment and qualified thereunder and continued to operate and run such mercantile business under the style of Connally & Co. till on January 20, 1886, when the said business was attached by creditors.”</p> <p>Then follow the fourth, fifth, and sixth findings, which relate to three several statements made by the defendant to Dun & Co. and plaintiffs’ commission merchant in Hew York, showing large excess of assets over liabilities.</p> <p>“7. That on January 20, 1886, the concern of Connally & Co. was attached by creditors, and was indebted at that time, including the debt herein sued for, in the sum of $31,121.39, and had assets, as evidenced by the sheriff’s invoice attached to the returns to the writs of attachment, of $20,000; and I also find that on January 18,1886, a few days prior to the attachment, the defendant withdrew the deposits of Connally & Co. from the bank in Sulphur Springs, amounting to the sum of $4286, cash.</p> <p>“8. That during the months of July, August, and September, 1885, the plaintiffs W. H. Lyons & Co. sold and delivered to Connally & Co. merchandise to the amount of $6082.14, on credit, and that none of the same has ever been paid.</p> <p>“9. Finding that the goods were shipped on faith of representations as to credit.</p> <p>“10. That the plaintiffs, when the debt herein sued on was created, knew the capacity in which defendant Nathan Connally operated and conducted the business styled Connally & Co.; and I further find that the defendant Nathan Connally, in creating such indebtedness for Connally & Co., did not contract against his personal liability for the debt incurred.</p> <p>“11. Finding that at the time of the purchase of the goods from plaintiffs the defendant had in possession assets of Connally far in excess of the amount of plaintiffs’ debt.”</p> <p>The judge concluded, as a question of law, that Nathan Connally is individually liable to plaintiffs for the amount of their said debt, with interest. That the fact that defendant as trustee created the debt, and did not at the same time contract against personal liability for the same, made him individually liable.</p> <p>Plaintiffs’ original petition'was filed April 2, 1886, and sought judgment against the defendant Nathan Connally as trustee of the trust estate of Connally & Co. On August 1, 1887, plaintiffs filed their first amended original petition, and sought judgment against defendant individually.</p> <p>[This statement accompanied the opinion.]</p>

<p>Error from Kaufman. Tried below before Hon. Arson Rainey.</p> <p>The opinion states the case.</p>

<p>1. Suit Against Administrator on Rejected Claim.—Suit against an administrator on a rejected claim shall “he brought within ninety days after such rejection and not thereafter.” The time should be reckoned excluding the day of rejection.</p> <p>2. Secondary Evidence—Relevancy.—The existence of letters between the parties to a promissory note tending to show that the note was mere accommodation paper was shown. The loss of the letters and search for them by the parties in whose charge they were being shown, secondary evidence was competent and the testimony was relevant to support a plea impeaching the consideration of such note.</p> <p>3. Incompetent Testimony—Declarations.—A defendant whose testimony was material offered testimony of a lawyer present on a former trial of the case to prove that the witness on such former trial had testified to the same effect as on the present trial. No attack had been made upon the witness as testifying differently. Held, upon objection the testimony should have been excluded. The party should not have been allowed to duplicate his testimony.</p> <p>4. Circumstantial Evidence—Remoteness.—It was in issue whether a promissory note was mere accommodation paper, or was made to secure the payee against losses for money advanced by payee in a joint business between the maker and payee. It was competent to prove that a few weeks before the date of the note the maker then negotiating for himself and another with the payee had refused to execute such a note for security for advances. "</p> <p>5. Same.—It is not necessary that the fact sought to be proved should have immediate reference to the issue; it is sufficient if the evidence refer to a fact relevant to a fact in issue.</p> <p>6. Notice to Produce Papers.—Plaintiffs were not notified to produce original letters written them by defendant. In absence of such notice it was error to admit copies.</p> <p>7. Charge.—A note was executed upon a compromise. After the agreement the maker insisted upon a further credit. The payee was represented in the compromise by an attorney who insisted that the note be made as originally agreed upon, the further credit to be for future adjustment. This was done. Upon these facts it was error for the court in suit upon the note to charge that the note was invalid unless given upon full settlement, etc. It was valid if given for part of the matters in controversy.</p> <p>8. Waiver of Defense—Estoppel.—Where one executes an obligation in renewal of a note claimed by the holder to be valid but known to the maker to be fraudulent, or'without consideration, the latter will be deemed to have purged the transaction of fraud, and to have waived the want of consideration, and will not be permitted to plead it. So, a note is supported by a sufficient consideration if executed to secure the abandonment of a suit brought to enforce a doubtful right, or in compromise of a disputed claim made in good faith, though it ultimately appears that the claim was without merit.</p>

<p>Í. Surety on Appeal Bond.-—On affirmance of a judgment this court has power to enter a judgment against the sureties on the appeal bond, and under such a judgment execution would properly issue from the District Court against all persons made liable by the judgment; but this is by reason of the statutes. Rev. Stats., arts. 1049, 1419. Such judgment against the sureties without citation must be rendered in the appellate court; it can not be rendered in the District Court.</p> <p>2. Breach of Appeal or Error Bond.—The appellant can not “prosecute his appeal with effect” and at the same time “perform the sentence, judgment, or decree in case the decision of the court shall be against him.” This obligation is alternative to do one or the other.</p> <p>3. Prosecuted with Effect. -—■ An appeal may be considered as prosecuted with effect when it results successfully as to a part at least of the judgment appealed from. It is not necessary that entire success follow the appeal.</p> <p>4. Same—Case in Judgment.—On appeal the judgment helow was reversed as to some of the appellees and affirmed as to others. Subsequently in the District Court the case was dismissed for want of prosecution. A judgment for costs was rendered against the plaintiffs and the sureties on the cost bond executed in the appeal without citation to the sureties. Held, such judgment against the sureties was void.</p>