Volume 83 — Texas Reports

<p>1. Receivership Upon. Dissolution of Railway Corporation.—The statute (Sayles’ Civ. Stats., art. 4098i, sees. 1 and 6) in proceedings by the State against a corporation, upon the court finding that the corporation has been guilty of acts which require a forfeiture of its privileges as a corporation, requires that “a judgment of ouster from the franchise shall be entered and that costs shall be adjudged.” This does not deprive the District Court of the power to enter any order necessary to give effect to the general judgment required in such cases.</p> <p>2. Same.—Although not a creditor of a corporation dissolved, the State in the interest of the public may apply for the appointment of a receiver of the defunct corporation; and'an appointment of such receiver was properly made on application of the State upon a judgment of forfeiture entered against a railway corporation.</p> <p>3. Case Adhered to.—Railway v. The State, 75 Texas, 434, adhered to.</p> <p>4. Conflicting Receiverships.—It was urged against the action of the trial court in appointing a receiver of the railway company dissolved, that a receiver had previously been appointed by the United States court of the jurisdiction. It not appearing at what time the proceedings were begun in which the action by the United States court had been taken, the action of the trial court can not be held erroneous.</p>

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

<p>1. Specific Performance—Fact Case.—May 20, 1878, contract for sale of land. Purchaser paid one-third cash, balance secured by two notes bearing interest from date, one due in one and the other in two years thereafter. Vendor was to make deed upon payment of the purchase money notes. The notes never were paid, nor was payment ever demanded. The vendor took no steps to rescind the sale. December 27, 1889, the purchaser tendered the amount of his two notes, principal and interest, and demanded a deed. This was refused. The purchaser brought suit January 3, 1890, for specific performance, bringing into court the amount he had tendered. Held, the right of action was not barred or lost by laches, and that a decree for specific performance was rightly entered.</p> <p>2. Limitation in Action for Specific Performance.—The statute provides that actions for specific performance of contracts to convey real estate shall be barred in ten years. The defense of stale demand superseded by the statute was the same term. The maturity of the debt due of the purchase money notes, in absence of action taken by the vendor, would determine the time from which the statute would run. Other periods of limitation have no application to such cases.</p>

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

This suit was brought by F. J. Bailey for personal injuries received by him in a collision with an engine and tender on the track of the Texas & Pacific Railway Company at a public crossing in the city of Marshall, September 24, 1888. Suit was begun October 30, 1888.

3. Practice—Findings of Fact.—See case illustrating the injury following the failure and refusal of the trial judge to amend his findings when the omissions were called to his attention. Bill of exceptions having been taken to the refusal, it is ground for complaint. 4. Subrogation.—Subrogation may arise from the agreement of parties or by implication in equity to prevent fraud or injustice.

<p>The opinion contains a statement save as to facts given in paragraph 2 of syllabus.</p>

<p>1. Parties.—Metcalf and. husband sued Guy and his sureties for one-third interest in her mother's estate, which Guy was administering as community property. The other defendants were Guy’s sureties upon his bond. Defendants excepted for want of necessary parties, there being two sons, who were minors, who were equally interested with plaintiff in their mother’s share of the community. The exceptions were sustained. The minors were then made parties, the original parties amending and as next friend making them parties. Under such circumstances the defendants ought not to be heard to complain of the ruling of .the court holding the minors to have been properly made parties; such ruling having been invoked by their own demurrer to the original petition. The minors, however, were proper parties plaintiff, and their interest was adverse to the defendants.</p> <p>2. Partition of Community Property Against Survivor.—Under article 2183, Revised Statutes, it is well ^settled that the District Court has jurisdiction to enforce payment by the survivor, of the shares of parties entitled to the deceased’s share of community after twelve months from the filing of the statutory bond by the survivor.</p> <p>3. Continuance.—When the application for continuance is not statutory its refusal will not be revised on appeal, in absence of something to show abuse of the discretion used by the trial judge. See facts which do not show erroneous refusal.</p> <p>4. Reopening Evidence—Practice.—The parties closed the evidence, and on the next day the trial judge, trying the case without a jury, called witnesses to testify touching credits claimed by the father against Ms minor sons, who were plaintiffs and asking their share in their mother’s part in the community. The father was absent from the court when the witnesses were called, but had been notified by the judge of his purpose. The witnesses were cross-examined; no request was made for time to controvert said witnesses, nor is their testimony attacked as untrue. Held, no ground for reversal on appeal.</p>

<p>Appeal from Titus. Tried below before Hon. H. A. O’Seal, Special District Judge appointed by the Governor.</p> <p>The opinion states the case.</p>

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

<p>1. Cause of Action.—Action on bill of exchange alleged to have been drawn by plaintiff on the defendant at his request and for his sole use and benefit; payment refused and the hill taken up by plaintiff. These allegations on general demurrer were sufficient and exhibited a cause of action.</p> <p>2. Evidence Illegal.—A witness in testifying to a material fact disclosed that the matter was in writing. Objection that the written testimony should be produced or accounted for, should have been sustained. The admission of the testimony objected to was error.</p> <p>3. Allegata and Probata. — Facts developed in the testimony not alleged can form no basis for recovery by plaintiff. See example.</p> <p>4. Practice.—The character of an action must be determined by the allegations in the petition, not by the facts subsequently disclosed by the evidence. See example. Suit on hill of exchange did not admit testimony to items of commissions and money advanced for use of defendant.</p>

<p>Error from Dallas. Tried below before Hon. George H. Aldredge.</p> <p>The opinion states the case.</p>

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

<p>1. Negotiable Paper—Bona Fide Holder.—In suit by a remote indorsee upon ■a negotiable note against the maker who seeks to impeach the consideration, the maker ■(defendant) has the burden of establishing not only the failure of the consideration for the note, but also that the plaintiff acquired the same with notice or without paying a valuable consideration.</p> <p>2. Valuable Consideration.—One who acquires a negotiable note in payment of. a pre-existing debt is a purchaser for value and in the usual course of trade.</p> <p>3. Indorsement by Bona Fide Holder.—A holder from abona fide indorsee takes a negotiable note discharged of inquiry into its consideration; whether such remote holder had notice or paid value, etc., is immaterial. His rights are those of the bona fide holder through whom he claims.'</p> <p>4. Refusal of Continuance.—The refusal of a continuance asked in order to obtain testimony which could not avail the party in his case is no grounds of complaint.</p>

<p>1. District Court—-Injunction—Want of Right to Appeal.—Under well established rules the District Court will issue writs of injunction without regard to the amount in controversy, where such grounds are alleged as are recognized as sufficient to call for the exercise of the equitable power of the court; but this does not mean that the writ of injunction will lie and can be made to operate as an appeal in cases where the right of appeal is denied by the law.</p> <p>3. Same—Cases in which no Appeal Exists.—The mere fact that the law prohibits an appeal by reason of the amount involved does not afford ground for the issuance of the writ of injunction.</p> <p>3. Costs—Statutes Construed.—Revised Statutes,_ articles 1432 and 1434, when construed together, show that under the latter the County Court in an appeal from a Justice Court when upon trial the judgment was reduced might tax the costs of both courts against the defendant who had appealed. Such judgment would not be void. In absence of fraud such judgment will not be avoided by injunction.</p>

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

<p>Appeal Bom Dallas. Tried below before Hon! George ET. Ald-REDGE.</p> <p>The opinion states the case.</p>

<p>The- opinion, in connection with head notes 15, 16, and 17, gives a statement.</p>

<p>Policy of Insurance—Pleadings — Exceptions.—An insurance policy excepted from its obligation losses to the goods insured caused by invasions, riots, etc. A fire occurred and the insured stock was consumed. Suit upon the policy, the petition making it an exhibit. The petition did not negative the loss by the excepted causes. Demurrer was pleaded to it, but was not acted upon. When the policy was offered in evidence, it was objected to because not alleged; an absolute promise to pay being declared on, while the policy was but conditional. The court overruled the objection. Judgment for the plaintiff. On appeal, held:</p> <p>1. As the policy did not bind the company to pay a loss resulting from fire however caused, the petition should have alleged that the fire was not the result of a cause for which the company had expressly refused to be liable.</p> <p>2. But by not calling for action upon the demurrer the company waived the defect.</p> <p>3. The company knew that plaintiffs based their action on the policy made an exhibit to the petition, and must have understood that it would be offered in evidence; in such cases neither variance nor surprise can be claimed.</p>

<p>1. Disqualification of District Judge.—If it could be admitted that a judge cau not sit in a suit of another person for debt against a debtor who at same time was owing the judge, such disqualification would cease to exist upon the payment of the debt to the judge, or when the debt was transferred without recourse. The fact that the payment or transfer was made for the purpose of removing the disability would not affect the result.</p> <p>2. Transfer of Stock by Shareholder of Failing Corporation.—We can see no good reason why transfers of unpaid stock of a corporation made in good faith and with the consent of the corporation should not be upheld.</p> <p>3. Disqualification of Judge.—A failing corporation was in hands of receivers. The district judge had owned stock in it and was an officer. Before the trial of a suit against the corporation was had the judge had disposed of all stock, and had fully severed connection with its management. Held, that the possibility of suit against him for acts ultra vires would not disqualify him as judge.</p>

<p>1. Widow’s Rights in Homestead — Abandonment.—A wife abandoned her husband and their homestead, which was his separate property. Three years after the husband’s death the widow brought suit against a tenant of his children by a former marriage for the homestead and for her interest therein. The defendant pleaded limitation of three years under the children and heirs of the husband. Held:</p> <p>1. Abandonment by wife forfeits her fight to the homestead upon her husband’s death.</p> <p>2. Such abandonment does not affect her interest in his separate property. She takes one-third life-estate.</p> <p>3. As to the wife’s life-interest, the defendant was without title or color of title, and limitation of three years was not applicable to the case.</p> <p>2. Case Adhered to.—Newland v. Holland, 45 Texas, 589, adhered to, in holding that abandonment by wife forfeits her rights in the homestead as such.</p>

<p>Arbitration—Arbitrators Must be Sworn.—Anderson and the city of Fort Worth agreed to arbitrate the value of his land wanted by the city for extension of a street. The arbitrators failing to agree selected an umpire. The umpire and one of the arbitrators agreed upon the value of the property. Their award was filed in the District Court. The umpire was not sworn, hut Anderson and the city attorney had indorsed upon the agreement to arbitrate their consent dispensing with the administration of an oath to the arbitrators or the umpire. Anderson sought to compel the clerk of the District Court to enter the award as a judgment of the court. The court refused the motion. Held:</p> <p>1. Under article 46 of the Revised Statutes an agreement to arbitrate contemplates that the arbitrators and umpire be sworn.</p> <p>2. A city attorney without special authority could not waive the statute requiring the oath.</p> <p>3. The award was not statutory, and the refusal to enter it was not error.</p>

<p>1. Appeal Bond in Justice Court. — Judgment in Justice Court January 26, 1891. Appeal bond was dated January 29, 1891. It is indorsed filed by the justice February 4, 1891. The approval bears date January 4, 1891. Held, the date of approval is evidently a clerical error, and affords no ground for dismissal of the appeal to the District Court.</p> <p>2. Limitation.—Suit for deficiency in number of acres of land sold to plaintiff by the defendant, the acreage having been falsely given by the vendor at the sale in excess of the quantity in the tract. Held, that limitation ran from date of sale, and two years would bar the action.</p> <p>3. Excuse for Not Suing.—That the vendee had confidence in the truthfulness and integrity of the vendor will not excuse the vendee in failing to have his land surveyed, and thus detecting the deficit in the acreage below that sold him.</p>

<p>1. Insurance—Ascertainment of Loss by Appraisement.—Unless fraud, accident, or mistake be shown, an agreement inserted in an insurance policy that the extent of loss be ascertained by an appraisement by disinterested parties selected, etc., is valid, and it has been repeatedly so held. See former appeal in this case, 71 Texas, 10.</p> <p>2. Proof of Loss in Stock of Goods Insured.—See an instrument tendered as proof of loss held not to comply in any material matter with the proof of loss agreed upon in the policy. It was a list of items sworn to 11 contain a full, complete, and correct list of the several articles belonging to affiant, damaged and destroyed by fire in the store room, No. 612 Main Street, Dallas, on May 12, 1884.” The court properly instructed that it was not sufficient.</p> <p>3. Waiver—Loss by Pire of Stock Insured.—It is a well known principle in this class of cases that the acts relied upon as constituting a waiver should be such as are reasonably calculated to make the assured believe that a compliance on his part with the stipulations providing the mode of the proof of loss and regulating the appraisement of damages done is not desired, and that it would be of no effect if observed! by him. In this case an appraisement was desired by the insurance company, and was refused by the insured. The demand for proof of loss was made and not complied! with. The facts negatived a waiver by the insurance company.</p>

<p>1. Continuance—Want of Diligence.—Where a suit had been pending for over two years and subpoena issued for the absent witnesses but a few days before the cause was called for trial, an application for continuance because of the absence of said witnesses rvas properly refused for want of due diligence to obtain the testimony on part of the party asking the continuance.</p> <p>2. Liability of City for Taking Land for an Alley.—The city of East Dallas by its city council ordered the opening of an alley. The city marshal executed the order, thereby taking a strip of land 200 feet long, and seven feet wide at one end and three at the other. The plaintiff had been in possession for many years, as had her grantor. It was her homestead. The city exhibited no right to the land, no condemnation proceedings, nor any offer of compensation. It held the possession thereafter. Held:</p> <p>1. As the city was a mere trespasser, it was optional with plaintiff to sue for the land and for damages for the trespass, or to sue for damages alone as the consequence of the unlawful appropriation of her property.</p> <p>2. The plaintiff having sued for and obtained judgment for the value of the land taken, and thus having elected to ratify its appropriation, it was not improper for the court to vest the title in the city upon the satisfaction of the judgment.</p> <p>3. Possession as shown -was sufficient title to support the judgment for damages.</p>

<p>1. Evidence Incompetent. — The plaintiff in trespass to try title claimed title under deed from a widow, the lot being her separate property. As against this title it was incompetent to prove foreclosure proceedings in which her husband was plaintiff, in which it was recited that the notes sued on were for purchase money for the land, and that “on the 18th of April the plaintiff, joined by Ms wife, executed a deed to H., one of the defendants, for the land,” etc. The wife was no party to said suit, and neither recitations in the pleadings, the judgment or sale thereunder, affected her title to the land.</p> <p>2. Husband’s Right to Sue for Wife’s Property.—While a husband can sue alone to recover the separate property of his wife (art. 1204, Rev. Stats.), this doctrine does not authorize the assumption that a suit brought by a husband is to recover the separate property of the wife when it does not purport to have been instituted for that purpose. See example.</p> <p>3. Description in Deed — Limitation of Five Years.— A sheriff’s deed described land sold as one acre square out of the southeast corner of a described larger tract. The land in controversy is not in a square, but something over one-half of it would be included within a square acre taken as described in sheriff’s deed. The records referred to in the sheriff’s deed indicated the locality of the larger tract from which the acre square was taken. Held, such deed was not void for want of description, as the land sold by the sheriff can be found and identified with reasonable certainty.</p> <p>4. Limitation.—It being shown that the sheriff’s deed included part of the land in controversy, it was competent to the extent of that included as a basis for limitations under the statute of five years. But see facts held insufficient to show continuous adverse possession for the term of five years.</p> <p>5. Proof of Execution of a Lost Deed. — That the deed was lost did not dispense with the necessity of proving its lawful execution, and that it once existed as a valid deed.</p>

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

<p>Error from Dallas. Tried below before Hon. Chas. Fred. Tucker.</p>

This is an appeal from a judgment for $1000 damages for overflowing six acres of land about one mile west of Dallas, in 1885. The opinion states the case.

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

<p>1. Liability of City of Dallas for Wrongs Done by East Dallas Before its Annexation.—The city of Dallas is liable'for the damage to plaintiff’s property taken by the city of East Dallas before its annexation. The facts show an attempted appropriation of a part of a city lot, owned by plaintiff, for a public street. The city officers had entered upon the premises, moved the dwelling houses thereon from the front to the rear end of the lot, they took down the fence, and were seeking to appropriate the front part of the lot for public use as a street. Suit was brought against the city of East Dallas. Pending suit the Legislature annexed East Dallas to the city of Dallas. Section 4 of the annexation act provided, “that the city of Dallas shall assume and pay all debts which may exist against the city of East Dallas at the time this act shall go into effect.” The trial court erred in refusing the application by the plaintiff to make the city of Dallas a party defendant.</p> <p>2. Same—Debts.—The transaction out of which the liability of East Dallas grew was one within the general power of the city to open streets, and would imply a corporate liability therefor. The use of the word debts in the annexation act shows an evident meaning including all obligations to pay money, whether arising from contract or implied by law, as a compensation for damages for property “taken, damaged, or destroyed for or applied to public use” within the meaning of the Constitution requiring compensation for such taking, etc.</p>

<p>1. Brief—Statement.—When the plaintiff appeals from a final judgment upon a demurrer to his petition, and in his brief does not set out the substance of the petition, this court is not required to consider the case further. Rules 24 and 25.</p> <p>2. Liability of City for Illegal Acts of Its Police Officers. — The petition alleged that the policeman arrested plaintiff without warrant, without affidavit being made as required by law, upon assumption that he had violated a city ordinance providing for the conviction and punishment of persons who permitted disorderly conduct in their places of business; that the officer used unnecessary violence in the arrest; that plaintiff had not violated the ordinance; that the officer was incompetent, which was known to the city, and that because of such incompetency the injury was done" to plaintiff; that the city of Dallas was a municipal corporation acting under a special charter granted by the Legislature (its special powers, if any, are not alleged). Held:</p> <p>1. We do not think the doctrine of respondeat superior is applicable to these facts.</p> <p>2. Police officers are not the agents or servants of the city so as to render it responsible for their unlawful or negligent acts in the discharge of their official duties in the interest of the public.</p>

<p>1. Right of Way—¡Practice.—The appellant railway constructed its road across a ten-acres tract of land, the property of Wilson. It was built in 1875 or 1876. No condemnation proceedings were taken. September, 1886, Wilson sued the railway company in trespass to try title for the entire tract- The defendant disclaimed save as to right of way of fifty feet. The road occupied ten feet, and pleaded limitation of ten years. It did not ask that its right of way be condemned. On the trial, the defendant failing to establish its defense, and plaintiff showing title, the court properly rendered judgment for plaintiff for the entire tract of land.</p> <p>3. Easement—Case Adhered to.—Hays v. Railway, 62 Texas, 397, adhered to, that a party in possession of another’s land claiming an easement is a trespasser if his claim is without foundation * * * If the defendant (a railway company) shows no title of this character the owner of the land dispossesses him altogether.</p> <p>3. Proof of Easement—Right of Way.—The doctrine is well established that the burden of proof is upon the party claiming an easement in the land of another, without any contract or express grant thereto, to establish all of the necessary facts from which the right may he presumed in his iavor—peaceable possession, exclusive and continuous and adverse to owner. A failure in proof of any of such facts is fatal to the right. See example.</p> <p>4. Pact Case — Possession. — See facts held insufficient to show exclusive and continuous possession.</p> <p>6. Adverse Possession. — One of the directors of the railway testified: “We went on the land and have never paid for the right of way. We expected and intended to pay for it when called upon at any time by the owner.” The owner lived in Houston, but was away from the city at the time. Held, that from this the inference might be drawn that the inception and use of the right of way was in subordination to the owner and in recognition of his superior rights in the premises. The trial court so holding, its action will not he revised.</p>

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

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

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

<p>Ho statement necessary.</p>

<p>1. Floating Land Certificates—Location.—It seems that when a valid location is once made upon unappropriated public domain any subsequent floating of the certificate would be illegal, and if the owner of a land certificate should survey vacant land by virtue of his certificate such survey deprives him of the right afterward to float it and locate it elsewhere.</p> <p>2. Surveys—Calls.—Surveys beginning at a known point were platted in a block without actual survey upon the ground. The initial point was upon a river. Guessing at its course, a number of the surveys called for it on both sides. Each survey had calls for course and distance. Held, that while the surveyor may have intended to appropriate the land up to and across the river, but not knowing where it actually was, no random calls therefor will control course and distance. The surveys must be run out as platted, disregarding the imaginary calls for the river. The calls for distance giving out west of the river, the surveys will not he extended across it.</p> <p>3. Illegal Location—Extension Across Navigable Stream. — A survey extending across a navigable stream is illegal, and to the extent that it goes across such stream the survey can not, he a basis of equitable ownership preventing the location upon the land by others.</p> <p>4. Limitation of Vitality of Land Certificates.—Section 2 of article 14 of the State Constitution prescribes: “All unsatisfied genuine land certificates now in existence shall he surveyed and returned to the General Land Office within five years after the adoption of this Constitution, or he forever barred; and all * * * hereafter issued by the State shall he surveyed and returned to the General Land Office within five years after such issuance, or be forever barred.” This applies to the original certificate, and not to the certified copy which may he made by the Commissioner of the Land Office for use after the original has been returned to that office. The copy is not an issuance of a certificate, but evidence of the original.</p> <p>5. Land Office Copy of Land Certificate.—The Commissioner of the General Land Office is an executive officer of the State, and has no authority to bind it by renewing its obligations, and there is no law that authorizes him to do so. His copies of land certificates are only evidence of the original, or of what remains of it.</p> <p>6. International & Great Northern Railway Certificates.—That the certificates were issued for a valuable consideration can not make any difference, for the State had the right to fix a time of limitation to all land certificates.</p> <p>7. Suit to Compel Survey.—Suit to compel a survey prosecuted with vigilance will excuse the delay in returning the certificate and field notes.</p> <p>8. Illegal Survey.—Although the surveyor is a public officer, yet it being the duty of the land locator to prove a legal survey made, the consequences of a mistake of the surveyor fall upon the owner.</p>

<p>_ 1. County Bonds.—It may toe considered settled law in this State that one of its counties can not issue bonds without an act of the Legislature conferring that power.</p> <p>2. Authority to Issue Court House Bonds. —The Act of February 11, 1881 (Gen. Laws 1881, p. 5), authorizing “the County Commissioners Court of any county which has no court house at its county seat” to issue bonds to defray expense of building such house, applied only to counties having no court house, and it did not confer power to issue bonds for the erection of a jail; nor would it authorize the issue of bonds for purpose of building a temporary structure to be used until a court house could be erected.</p> <p>3. Court House—Jail.—A building intended for a jail, but to be used temporarily as a court house, can not be deemed a court house within the meaning of the said Act of February 11, 1881; and until its amendment February, 1884 (Acts Special Session 1884, p. 28), counties could not legally issue bonds for building a jail.</p> <p>4. Irregular Issue of Bonds—Bona Fide Holder.—Nolan County issued certain bonds to contractors who had built a jail for the county. There was no court house at the time in the county. They were payable to bearer; they recited that they were issued for the purpose of building a court house for the county; they purported to have been issued under the Act of February 11, 1881, and to have been registered by the treasurer of the county. The purchasing agents of the State had no actual notice of any fact that would impair the validity of the bonds. Held, that the county was obliged to pay such of said bonds as were bought for the State as an investment of the State school fund.</p> <p>5. Recitals in Contracts — Estoppel. — If a purchaser were bound to inquire into the existence of the fact which empowered the court to issue bonds to build a court house, and to know that the county had no court house, in view of the recitals upon the face of the obligations he was bound to look no further. He had the right to rely upon the truth of such recitals, and having paid value for the bonds without actual knowledge of their illegality, the county would be estopped to set up that they were not issued for the purpose for which they purported to be issued.</p> <p>6. Limit of Legal Issue of Bonds—Valuation of Property.—In The Citizens Bank v. City of Terrell, 78 Texas, 450, section 8 of article 14 of the State Constitution as amended in 1883 was construed, and it was held that the amount of indebtedness which counties, towns, and cities were authorized to create for the erection of public buildings was limited to such amount that its interest and sinking fund could be paid by a tax of 25 cents upon the §100 of property, as shown by the assessment rolls of the municipality. The word “valuation” as used in the section was held to mean the value as fixed by competent authority for the purposes of taxation. The power of issuing bonds being so limited as to the amount by the official assessment, the Commissioners Court was not authorized to look beyond it to determine the extent of their power from other data within their reach. In such case recitals could not extend the limit so determined.</p> <p>7. Bonds in Excess of Limit.—A series of bonds issued for a real indebtedness payable to bearer and in hands of a bona fide holder, and in excess of the amount the county could legally issue, is valid pro rata to extent of indebtedness the County Court could create.</p> <p>8. Counties Attached to Others for Judicial Purposes.—A county attached for judicial purposes should bear the burdens of taxation to defray the ordinary expenses of county administration, but the assessed values in such county should not be considered in ascertaining the valuation of the taxable property as a basis for the crean tion of an indebtedness for permanent county buildings.</p> <p>9. negotiable Paper. — The county having delivered to contractors in payment for work a series of bonds, and they being negotiable, it being shown that part of them are in hands of innocent holders, it will be presumed that the entire series have passed to bona fide holders in determining the amount of the indebtedness of the county when proceeding to a farther issue of bonds.</p> <p>10. Issue of Bonds Before Assessment for the Year.-—Until new assessment rolls have been examined, corrected, and approved by the board of equalization, the appraisement for the year can not be considered as definitely ascertained, and until so approved the valuation as a limit of bonded indebtedness created would be that of the year before. Such bonds could gain no validity by the increased values not ascertained by the tax rolls. See facts making an issue of bonds invalid.</p> <p>11. Invalid Bonds.—Bonds illegally issued can not be treated as legal in computing the indebtedness of the county when such county upon approval of its tax rolls has power to enlarge its bonded indebtedness, and under such power regularly issues other bonds. See example where the last issue of a series held valid.</p> <p>12. Validating Act of Legislature.—Where a contract which a municipal corporation has attempted to create is invalid merely for the want of legislative authority to create it, it can be made valid by a subsequent law: e. g., Act of March 24,1885 (Gen. Laws, p. 41), validating certain county bonds.</p> <p>13. County Bonds Purchased by State.—In said validating act there is nothing to indicate that it was not to be applied to bonds which may have been bought by the State after they had been transferred by the county to third parties. The object of the provision was to protect the school fund, and we see no reason why it was not intended to validate any county bonds held by the State for the benefit of its public schools, whether purchased directly from the county or from intermediate holders.</p> <p>14. Irregularities in Issue of County Bonds.—The bonds by their terms were not redeemable until after the lapse of ten years, instead of “at the pleasure of the county,” as prescribed by the statute. In Rock Creek v. Strong, 96 United States, 271, it was held that a similar irregularity did not render the bonds void. However this may he, the defect was certainly cured by the validating act.</p> <p>15. Ordering County Court to Levy Tax.—The County Court had refused to levy a tax to pay the interest, etc., and had- repudiated the debt. The members of the court were made parties to the suit. The court, in rendering judgment for the unpaid interest, properly ordered the county commissioners to levy and collect a tax to pay the amount of the recovery. Ho execution for the money could issue against the county.</p>

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

<p>1. Nonexpert Opinion Testimony.—Suit for damages by land owner, who had granted the railway company the right of way of 100 feet, with right to use such additional land as might be necessary in the construction and maintenance of the road, against the railway company. Extensive excavations were made on the right of way and outside of it in constructing an embankment through the land. The road made a cut near to the land, and it was insisted that the material from the cut should have been used in making the embankment, etc. On the trial, witnesses not experts but familiar with the grounds and the work were properly allowed to testify, “that if the road had not been constructed out of the earth alongside of it, but had been of earth taken from the excavations near by, there would have been no standing water,” etc. The witnesses stated the facts upon which their opinions were based.</p> <p>2. Same—General Rule.—In all cases where an opinion is admissible at all the nonexpert witness is qualified to express his opinion if he has seen and observed the cause and effect, and states the facts upon which the opinion is based.</p> <p>3. Same.—Although a nonexpert witness may not be able to give an accurate estimate as to quantity, etc., his opinion with the facts was competent to prove that the railway took more land than was necessary to construct its embankment.</p> <p>4. Depositions — General Interrogatory.—An interrogatory and answer were objected to as follows: “Interrogatory 13.—If there be any other fact or facts concerning this matter tending to throw any light upon the matters in controversy in this suit, and about which you may not have been specially interrogated, please state the same here ? Answer.—I do not know of any further fact except that ample provision was made for waterways, and the reason why the harrow pits were wide opposite the lower bank is that rock was encountered near the surface.” The testimony was material and pertinent to the issues. Held, the objection that plaintiff was not informed by the interrogatory what the answer would be, and that he had had no opportunity to cross-examine, went to the manner and form of taking the depositions, and should have been made before the trial. The exclusion was a material error.</p> <p>5. Ordinary Care in Construction of Roadbed, etc.—Ordinary care in determining the necessity, under the circumstances, of taking the earth for the embankment from plaintiff’s land, was all that the plaintiff could insist upon. See charge of court erroneous in being more onerous upon the railway company.</p>

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

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

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

Action by S. S. Turner against H. C. Cross and George A. Eddy, as receivers, for damages on account of injuries resulting in the death of her son. Judgment for defendants, and plaintiff appeals.

<p>1. Judgment Without Service on Defendants. — McAnear v. Epperson, 54 Texas, 220, adhered to, in holding that a judgment rendered without actual service of process on minors, defendants, represented by a guardian ad litem, was not void. This is in harmony with former decisions of this court. Thomas v. Jones, 10 Texas, 52; Kegans v. Alcorn, 9 Texas, 34; Wheeler v. Ahrenbeck, 54 Texas, 536.</p> <p>2. Cases Qualified.—Kramer v. Haynie, 67 Texas, 451, and Sprague v. Haynes, 68 Texas, 218, qualified.</p> <p>3. Fact Case—Judgment Not Void, Only Voidable.—In a partition suit in the District Court it appeared that citation to Thomas and Bichard Alston, minors, was returned not served. It did not appear that any other citations were issued for them. The court appointed a special guardian to represent the minors. Under judgment for costs lands allotted them were sold, and Emmerson became holder under the sale. The parties, Thomas and Richard Alston, testified, that no service had been made upon them. Held, that the judgment for costs through which Emmerson held was only voidable, and that in a collateral attack the sale was conclusive against the defendants in the execution sale.</p> <p>4. Limitation Affecting Title to Land.—Sheriff sale September, 1879, passing title to the purchaser. Suit upon such title against defendants in execution for the land sold was filed October 7,1886. They pleaded limitation and relied solely upon adverse possession. Held, that it was impossible for defendants by such possession for the period to acquire title against plaintiff holding under the sheriff sale.</p> <p>5. Irregularity.—A final judgment in partition omitted one of the parties shown in the pleadings to have an interest in the land. (Four persons were alleged to own one-twelfth of the land. In the decree that share was allotted to three of them by "name; no mention of the other.) Held, it might he presumed, to support the judgment, that some reason was shown in the proceedings for the omission in the decree; but the omission did not render the decree void. Nor could parties not injured by such omission take advantage of the omission.</p>

<p>1. Damages to City Property from Grading Streets of City.—The city of Dallas, in exercise of its powers, graded certain of its streets, raising them above the surface of adjoining lots, causing thereby the overflowing of said lots and consequent damage. In suit by lot owner for damages so caused it was shown that by expending §500 the lot could be raised so as to prevent injury, and that, the grading increased the value of lots fronting on the streets. Held, that the trial judge was in error in instructing a verdict for the city, a cause of action having been shown.</p> <p>3. Same—Constitution Protects Against Damages, etc.—Section 17, article 1, of the State Constitution determines: “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by consent of such person.” This applies to the overflowing of city lots from raised streets so raised by the city in exercise of its power over its streets.</p> <p>3. Same—Care by Owner to Prevent Injury.—While it may be the duty of the injured party to incur a moderate expense to protect himself from damage, what may be considered as moderate will depend upon many considerations, and must be determined by the circumstances of each case.</p>

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

<p>±. Proof of Lost Note.—Since the statute allowing parties in interest to testify, it has not been necessary to file an affidavit of the loss of a note as a predicate to plowing its contents. The proof of loss and contents may be made without such affidavit. Blanton v. Ray, 66 Texas, 61, adhered to.</p> <p>2. Facts.—See facts held sufficient evidence to the loss of a promissory note sued on to admit secondary evidence of its execution and contents.</p> <p>3. Interest.—To authorize an abatement of interest between maturity of a promissory note and suit upon it, the defendant should allege and prove the facts suspending interest.</p> <p>4. Divorce Proceedings Affecting Property.—The rule now established in this court is, that a decree of divorce which does not purport to make a partition between the husband and wife, or to settle their rights to property claimed by either, does not preclude a suit by either party for such partition or to establish such right.</p> <p>5. Same—Fact Case—Fraud.—The widow of the payee of a vendor’s lien note brought suit on it and to foreclose the lien, alleging that she was the sole heir to her husband, and that the land was community property. Intervener alleged that she had been the wife of deceased; that her husband had conveyed the land in secret trust, and by his cruel treatment had compelled her to obtain a divorce from him; that she did not know of her husband’s interest in this land at the time of the divorce proceedings, and had but recently ascertained the facts; that her husband after the divorce intermarried with the plaintiff, and after the marriage the land was reconveyed to him and thereafter sold by him. Held, that the intervention showed an interest of one-half of the note sued on, and it was error to sustain a demurrer to the intervention.</p> <p>6. Same.—If, however, the divorce decree did purport to adjust the property rights, then her remedy would be an original action for a new trial, based upon newly discovered evidence, in the court where the judgment was rendered, all persons interested in the property to be made parties.</p>

<p>1. Dedication of Street—Estoppel.—The land in controversy is a strip 25 feet in width, and includes one-half of the extension of a street in the city of Dallas. It was 150 yards beyond the city limits. The adjoining owner had dedicated for the street 25 feet. Plaintiff bought the 'land in 1877. The land then was inclosed. In 1884 the plaintiff rebuilt his fence, placing it 25 feet from his line. The open space left a 50-feet street, which was used by the public, but not recognized by the county as a public road. About the time of the removal of the fence plaintiff claimed of his warrantor compensation for the land occupied by the street, and full compensation was paid. Subsequently the city limits were extended so as to include the land; the street was recognized and worked by the city. Held, that the facts showed by estoppel a dedication by the plaintiff.</p> <p>2. Same.-—By the transaction between the plaintiff and his warrantor the plaintiff affirmed and his vendor admitted that there had been a dedication previous to the conveyance by the latter to the former. Each is estopped to deny that fact as against the other. The city limits were extended and the city accepted the dedication if one existed. The dedication was for the benefit of the public, whose representative the city became when its limits were so extended as to include the property. It would seem that in such a case for the protection of one who has paid for the street as already dedicated or to be dedicated to the public, the city ought to be permitted to assert-the dedication.</p> <p>3. Cases Discussed.—Atkinson v. Bell, 18 Texas, 474; Gilder v. City of Brenham, 67 Texas, 347; and Galveston v. Williams, 69 Texas, 449, discussed.</p>

<p>1. Laws of Inheritance in 1837 in Texas.-—-Intestate died in Texas in 1837. At that time, in absence of wife, child, or father, the mother inherited. 52 Texas, 375; 11 Texas, 165.</p> <p>2. Proof of Death.—Testimony that mother died about 1860 will not support a finding that she died prior to August 14, 1860.</p> <p>3. Estoppel by Deed.—A conveyance for land purported “to convey, in consideration of §400 paid, the land certificates granted by the State of Texas to the heirs of E. J. W. Lowery, situated in Bell, Falls, Montague, Cooke, and other counties in Texas,” among which the tract of land in controversy is described. The title at the time was in the mother of the grantors. Held, that they were estopped to assert title against their deed after their mother’s death. Such is the effect although there was no covenant of warranty in the deed.</p> <p>4. Estoppel by Recitals.—The language in the deed whereby the grantors convey the fee simple estate in the land imports an assertion by them that they are the owners in fee simple of the land, and having thus asserted the fact of their ownership the grantors are estopped to deny such fact.</p> <p>5. Effect of Words Used in Conveyance—Deed.—Under article 999, Paschal’s Digest, where a less estate than the fee is not expressly declared, the intent will be presumed that a deed for land is to convey an estate in fee simple.</p> <p>6. Quitclaim.—A deed conveying “the land and land certificates” described and purporting to convey them in fee simple, i. e., to convey an absolute indefeasible title, can not be treated as a quitclaim.</p> <p>7. Statute Not Retroactive.—Article 557, Revised Statutes, does not apply to conveyances executed prior to its enactment, touching the inferences to be drawn from a conveyance for land.</p> <p>8. Effect of Judgment.—A judgment in 1883 was rendered against the grantors who had sold August 14, 1860, by consent, and reciting a payment for the land by the defendant Lindsay of §500. Held, that the judgment had no greater effect than would a deed from the parties, and to entitle Lindsay to protection as a bona fide purchaser against holders under the deed of 1860 it devolved upon him to prove the payment of the purchase money. The recitation of such payment in the judgment was not sufficient-.</p> <p>9. Mental Incapacity. — Where the testimony is conflicting, a finding that the grantors in a deed were of mental capacity sufficient to make the contract will not be revised. See facts.</p>

<p>1. Charge—Permanent Injury.—On trial of suit for damages for personal injuries to plaintiff caused by negligence, etc., of the defendant railway company, it being in issue whether injuries proved were permanent, and the court having charged the jury to give damages for permanent injuries if found to be such, when requested by the defendant should have instructed further, that unless the injuries were shown to be permanent damages should be disallowed to the extent of the claim for permanent injuries.</p> <p>2. Declarations as to Bodily Pain, etc. — Statements by an injured person made to his physician as to his feelings of pain and the like, made after the act causing the injury, are competent as a basis for the opinion of the physician upon the physical condition of the injured party.</p> <p>3. Incompetent Evidence—Repairs by Railway Company.—It is not competent to admit evidence that a railway company had repaired its track at the place of an alleged injury and subsequent to such injury, in evidence of negligence on part of the road in regard to the track at the time and place of the injury.</p>

<p>1. Practice—Special Issues—Execution Sale of Land. —Plaintiff sued for recovery of land, alleged to have been bought at sheriff sale under execution, against defendant in execution and his voluntary grantee. The defendants pleaded general denial. The court submitted special issues, but omitted to submit the issues as to existence of the judgment and execution under which the plaintiff claimed. The jury responded to the issues submitted and in favor of the plaintiff. Held, in absence of finding the judgment and execution plaintiff could not recover.</p> <p>2. Assignment of Error. —The assignment of error, that “the court erred in rendering judgment for plaintiff on such questions and answers as noted above,” was sufficient to question the sufficiency of the special verdict to support the judgment.</p>

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

The statement of the nature and result of the suit as found in the brief of the appellant and not objected to by appellees is as follows: This suit was instituted on the 30th day of October, 1888, by Thomas J. Wood, of Sherman, Texas, and John Andrewartha, of Austin, Texas, against J. E. Flanders, to recover upon a contract made between all of them on the 9th day of March, 1886.

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

This is an appeal from a judgment for $3000 damages for injuries to plaintiff’s right hand, inflicted while coupling cars of the defendant railway company. The little finger was mashed so as to require amputation; the ring finger is of no use, and the thumb seems to have been injured. The other facts appear in the opinion.

<p>1. Parties.—Byrne & Co., of which firm one Cook was a silent partner, were contractors with the city of Dallas for building a city hall. The contractors sublet a part of the work to Loonie. Dispute having arisen between Loonie and the contractors, they submitted the matter to arbitration, Cook acting for the contractors’ firm, Byrne & Co., and claimed to own the balance due on the contract. The agreement to arbitrate authorized the payment by the city according as the award should determine. An award was made, and suit was brought by Loonie against the city and Byrne & Co. for the amount of the award, or so much of it as was owing upon the contract. No service was had upon Cook, and the city asked a continuance in order that Cook might be served with citation. This was refused. Held, no error, there being no contest about the validity of the award, and Cook by signing the agreement to arbitrate for his firm was estopped to contest it.</p> <p>2. Immaterial Evidence—Fact Case.—The city interposed a defense to Loonie's demand for the fund in its hand upon alleged ground that it had been assigned by the contractors prior to the arbitration. In support of this defense the city offered an or-, der signed by Byrne & Co. to the Fourth National Bank authorizing the bank to collect for them, and also the papers in a suit by the bank against the contractors for a large indebtedness. No evidence was produced of an actual indebtedness to the bank, and it was not made a party to the suit. Held, that the court properly rejected the testimony offered, as it showed no valid transfer of the funds.</p> <p>3. Contractor’s Lien on Public Building.—The statute granting liens upon aE buildings does not include public buildings and grounds. The city hall was not subject to the contractor’s Een for erecting it.</p>

<p>1. Transfer of Judgment—Form of Execution After Transfer.—A judgment may be transferred by parol. It must, however, be enforced in the name of the original plaintiff, and it seems that this would be permitted after the death of the plaintiff.</p> <p>2. Tender of Property in Litigation After Judgment — Costs Not Being Paid.—Judgment was rendered for plaintiff for a horse adjudged worth §100, and costs of suit. A tender of the horse by defendant and refusal by plaintiff did not satisfy the judgment, so as to render an execution void.</p> <p>3. Fraudulent Sale Under Execution.—See facts held sufficient to show a fraudulent combination to acquire title to a city lot through form of sale under execution.</p> <p>4. Direct Attack Against Sheriff’s Sale for Fraud, etc.—Suit was brought within less than four years after the sale for the recovery of the city lot sold, and setting up facts upon which the invalidity of the sheriff’s sale under which the defendants held was manifest. In such case it is not necessary to hold that a first execution issued more than nine years after the judgment, and several years after the death of the plaintiff, but in his name, was void. In direct attack it was voidable.</p> <p>5. Same — Limitation. —Suit brought to avoid a fraudulent sheriff sale brought within four years from date of the sale is not a stale demand. '</p>

<p>1. Libel.—To constitute libel it is not necessary that the language used should in express terms charge a crime. The charge may be made by insinuation. If the language of a publication be calculated to induce those who read it to believe the person of whom it was written is guilty of a crime it is sufficient to support an action. See example.</p> <p>2. Same. —The words of a publication maybe literally true, yet if the sense of the publication is to impute a crime it is libellous.</p> <p>3. Truth as Justification in Libel Suit. —A plea of justification by alleging the truth of the matter must meet the substance of the libel as alleged in the petition. It is not sufficient to allege and prove the truth of the several statements contained in the alleged libellous article; but to justify, the substance must be proved. It was not error to refuse to submit as a defense the truth of the mere statements therein.</p> <p>4. Privileged Publications.—Newspapers are not at liberty under a real or supposed sense of social duty to publish defamatory articles about individuals.</p> <p>8. Information and Belief of Truth.—That the publication of libellous matter was upon information considered reliable, and which was believed to be true, is not a defense, but may be pleaded in mitigation of damages.</p> <p>6. Special Damages. — There was testimony tending to show that the plaintiff had been discharged from his employment, and probably by reason of the publication, although the discharge was some months after it. The court charged among other things that the jury might “look to any special damages, if any are shown to have been sustained by him.” The defense asked the further charge,' “that unless the jury find from a preponderance of the evidence that-— discharged plaintiff from their em- . ployment because of the publication in question, they will find for defendant so far as this item is concerned.” It being a question whether plaintiff was discharged by reason of the publication, the requested charge should have been given. Its refusal is ground for reversal.</p>

<p>1. Argument of Counsel.—Action against railway company for damages to wife of the plaintiff, caused by alleged negligence, etc., of the defendant. There being contention as to the extent of the injuries suffered by the wife, at request of the defendant the court made an order for her examination by a board of physicians. No objection appears to have been made to the order. Physicians made the examination and testified to result. In closing argument on the trial the attorney for plaintiff denounced the order of court and the examination as outrages upon the wife, etc. The trial court did not suppress nor control the attorney, nor attempt to do so. The verdict being lor the plaintiff, and for large damages, held, the remarks of counsel assented to by the court’s silence was ground for reversal.</p> <p>2. Quaere.—Can an order for examination of injured party be lawfully enforced against the consent of the party? This question is raised but not decided.</p> <p>3. Practice.—Upon application for such order for examination of injured party, unless assented to, opposition should be made at the time to the order. After such order, and its execution without opposition, the party affected has no right to attack it in an appeal to the jury.</p> <p>4. Care for Safety of Passengers, etc. — Platforms. — Injury resulted from a fall from platform at depot by a passenger. Suit for damages. Held, the defendant was not bound to have the platform absolutely safe, but only reasonably so under the circumstances; yet to accomplish that result it was bound to more than ordinary care and prudence.</p>

<p>1. County Superintendent of Public Instruction. — In the Act of April 6, 1889 (Laws 21st Leg., p. 58), is the following section: “That the County Commissioners Court of any county in this State shall have the power and authority, when in their judgment such court may deem it advisable, to abolish the office of county superintendent of public instruction in their county, by an order entered on the minutes of their court at a regular term thereof. ’ ’ This act is constitutional, and is not a delegation of legislative functions. The office could be abolished and thus the term of office ended.</p> <p>2. Same.—The office of superintendent of public instruction for the counties was created by Act approved April 2, 1887 (Laws 20th Leg., p. 26). The act provided, that “the County Commissioners Court of any county in this State may, when in their judgment it may be advisable, provide for the election at each general election of some person, * * * who shall hold his office for the term of two years.” We are not able to see any material distinction' in regard to their constitutionality between the act that authorized the County Commissioners Court to bring the office into existence and the one that authorizes it to abolish it.</p> <p>3. Same.—It was the Legislature, and not the County Commissioners Court, that made the law giving the court the power to abolish the office.</p> <p>4. Disqualification of County Judge. — The objection that the county judge was interested, and therefore disqualified to act, can not be treated as good. It was not a ease, in the meaning of the Constitution, and there is nothing to indicate that his vote was necessary to the decision abolishing the office and thereby removing Stan-field from said office.</p>

<p>Community Property.—The intestate married in 1848. In June, 1854, the wife died leaving daughter of the marriage. In 1849 deed to a league and a half of land was executed to the husband. The title, however, was void because the land was situated within the ten littoral leagues. In 1855 the husband married again and children were horn of the marriage. In 1853 certificates were located upon the land and the locator brought suit at once against the husband. The land was patented under these locations in 1863, and in 1875 by compromise a judgment for 250 acres was entered for the defendant, including his residence, which had been occupied by himself and his family ever since his second marriage and until his death in 1880. The daughter of the first marriage sold her interest and the purchaser sued therefor, claiming that the land was the separate property of the husband, or of the community of the first marriage. Held, that the concession by the owner of the land to the husband during the second marriage raised the presumption that the land was community of the second marriage.</p>

<p>Agent Contracting for Principal When Not Bound.—Johnson was president and financial agent of Fort Worth University, a corporation. At his request Armstrong & Messer, architects, prepared a plan and specifications for a college building. Johnson did not expressly promise to pay. The architects knew that the plans, etc., were for a school, college, or university building. They sued Armstrong for the value of their services. The plaintiffs recovered, and on appeal, held: It clearly appears that plaintiffs knew that the building was intended for a public and not for a private purpose. There was in fact such a corporation, and the circumstances were sufficient to put plaintiffs upon inquiry. The inquiry that it was their duty to make would have developed a responsible principal. The principal being practically disclosed the agent was not liable, not having bound himself personally.</p>

<p>1. Certainty of Proof in Civil Cases—Charge. — In a contest whether a conveyance in form a deed was a mortgage, it being attacked hy the maker, it was error to instruct, the jury that the law devolves upon the defendant alleging it to be a mortgage the burden of proving clearly and satisfactorily to their minds the fact that such was the case. The law does, not exact such a degree of evidence.</p> <p>2. Practice—Agreement as to Common Source of Title.—An agreement, or the admission by the defendant pleading not guilty in an action of trespass to try title, that “John Lee was common source of title,” did not relieve plaintiff of the burden of connecting himself with that title by proper evidence. See testimony held insufficient to "make such connection.</p> <p>3. Incompetent Testimony — Self-Serving Declarations. —The grantor in a deed absolute in form remaining in possession in absence of his grantees from time to time made declarations that his deed was a mortgage, and statements as to his progress toward payment of the debt secured thereby, and of his full payment. These were offered in evidence to prove that the conveyance was a mortgage. Held, the testimony was properly excluded. The grantor could not give character to his act by such declarations long after its execution.</p>

<p>1. Fact Case — Conflict in Evidence. — In this case the preponderance in the evidence appeared against the findings of the trial judge. Held by the court: “We do not find anything in the record to justify us in departing from the well established practice of this court not to reverse a judgment on the facts when the findings of the trial court have evidence sufficient to support them, notwithstanding they may seem to us to be contrary to its preponderance. ’ ’</p> <p>2. Principal and Agent.—That a land agent may have agreed to share his commissions with a purchaser could work no injury to the principal. It would not be a ground for reversal of a judgment in favor of the agent for commissions.</p>

<p>Error from Dallas. Tried below before Hon. R. E. Burke.</p> <p>The opinion states the case.</p>

<p>1. Common Source of Title. —• The contention in this suit is over the ownership of about twenty acres of land lying between two beds of Rocky Creek making an island. The plaintiff had held under a deed calling for the Rocky Creek as south boundary, and under another deed a tract adjacent and calling for Rocky Creek for its north boundary. Subsequently plaintiff sold south of the creek a tract calling for it as the north boundary of the tract sold. This was claimed by the defendant under regular conveyances. In suit by plaintiff, he claimed that the bed or stream on the south side of the island was Rocky Creek. The defendant claimed that the bed north of the island was the Rocky Creek called for in his deeds. Held, this presented a case of common source of title.</p> <p>2. Abstract of Titled and Patented Lands.—We know of no authority for admitting the book known as the “Abstract of Titled and Patented Lands” as proof that title had been issued by the State or former governments to the grantee named therein.</p> <p>3. Immaterial Evidence—Wife Joining in Deed for Community.—Testimony showed deed from the patentee to Lott, and from Lott and wife to another under whom the plaintiff deraigned title. Lott’s wife was not concluded by a regular privy acknowledgment. Held, that her joining in the deed was unnecessary, and the imperfect certificate of privy acknowledgment harmless as against the husband’s vendee.</p> <p>4. Fact Case—Latent Ambiguity.—The testimony showed that both channels of the stream at one time had been known as Rocky Creek. The deed from plaintiff through which defendant deraigns title calls for Rocky Creek as the north boundary of the tract sold. This presents a deed unambiguous on its face, but which when applied to the ground becomes uncertain as to which channel was; meant. It is clearly a case of latent ambiguity. Testimony was properly admitted to explain, and it showed conclusively that at plaintiff’s sale of the land south of the creek the south channel was pointed out as the Rocky Creek, the north boundary of the land sold. The actual intention of the parties must govern. The mesne conveyances copied the deed from the plaintiff in its description, so that no greater rights accrued from subsequent transfers. Such deed duly recorded would not be a basis for limitations of five years for land north of the south channel.</p> <p>5. Payment of Taxes.—The defendant paid taxes upon 200 acres out of the survey of which the land in controversy was a part. He owned by undisputed title about 210 acres, which added to the 20 acres made 230 acres subject to taxation. It will be presumed that his payment of taxes was upon lands of which his title was undisputed. Such facts will not support the five years statute of limitations.</p> <p>6. Prayer for Relief.—In the petition the prayer is, “That the defendant [be cited] to answer this petition, and that plaintiff have judgment for the restitution of the above described premises, and for damages and for costs of suit.” This was sufficient to authorize the recovery of the land described and a writ of possession therefor.</p>

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

<p>Ho statement is necessary.</p>

<p>1. New Cause of Action—After-Acquired Title.—It has been too often ruled, that the plaintiff may at any time before trial abandon the old and set up by amendment a new cause of action, to require the citation of authority to support the proposition. In such case the plaintiff makes himself liable to pay all costs which have accrued up to the time of the amendment. This applies to an after-acquired title to land sued for.</p> <p>2. Same—Practice.—In case the plaintiff abandons the original and amends by setting up a new cause of action, and the defendants are in court by answer, no process is required; but in all other respects the action proceeds the same as a new suit.-</p> <p>3. Same—Trespass to Try Title.—The rule is elementary that a plaintiff can not recover in trespass to try title upon a title acquired subsequently to the institution of the suit. But we can not see why he should not be permitted to renew his action by amendment and thus place himself in position to avail himself of his after-acquired title. After such amendment such title is relevant and admissible to establish such new cause of action or title.</p> <p>4. Contract Construed—Ancient Instrument—Land Warrants. — On the trial, September, 1888, in support of his title the following document was read: “Received of James Johnston §323.27 in full for our interest in the land warrants John F. Morgan, deceased, was entitled to in Texas, we being the only surviving heirs, which we transferred to said Johnston the 3d day of this month. April 5, 1850. [Signed] John Fipher, Eleanor Fipher.” The deceased was an unmarried soldier immigrant, who fell with Fannin at Goliad. His heirs were entitled to.a headlight third of a league, bounty and donation warrants. Held:</p> <p>1. That the instrument must be construed as embracing all claims for land to which the subscribers were entitled as the heirs of Morgan—headlight, bounty, and donation certificates.</p> <p>2. The paper was an ancient instrument, and so admissible without proof.</p> <p>3. The instrument was not a conveyance, but a receipt containing a distinct admission that the makers had transferred the warrants to Johnson for a valuable consideration, on a day anterior to that on which the writing was made.</p> <p>4. Such receipt was sufficient evidence to support a finding that the headright certificate had been in fact transferred.</p> <p>5. Conveyance of Wife’s Separate Property Under Act of April 30,1846.— Under the Act of April 30, 1846, the wife could convey her separate personal property (other than slaves) by parol executed contract.. Unlocated land certificates, the separate property of the wife, could be conveyed without writing subscribed and privy acknowledgment.</p> <p>6. Cases Discussed and Limited.—Hollis v. Francois, 5 Texas, 195; Taylor v. Hall, 20 Texas, 211; Gregory v. Van Vleck, 21 Texas, 40; Tucker v. Carr, 39 Texas, 98; Railway v. Durrett, 57 Texas, 51; Groesbeck v. Bodman, 73 Texas, 287; Utzfield v. Bodman, 76 Texas, 359, discussed and limited.</p> <p>7. Dicta Not Authoritative.—The utterances of a court in order to have the authority of judicial precedents must be asserted in the determination of some question necessarily involved in the case.</p> <p>8. Statute Construed—Conveyance of Wife’s Estate.—Article 1008, Paschal’s Digest (Act April 30, 1846), merely provided that a writing purporting to convey the wife’s separate estate shall be invalid unless accompanied by a certificate of her privy acknowledgment. It does not declare that such conveyance should be in writing.</p> <p>9. Same—Statute of Frauds.-—-The statute of frauds, enacted in 1840 (Pasch. Dig., art. 3875), provided that all contracts for the sale of lands and slaves in order to be enforceable in the courts should be in writing and signed by the party to he charged thereby. The conveyance of the effects of the wife other than lands and slaves was not affected by this statute.</p> <p>10. Conveyance of Wife’s Separate Chattels.—Under Act of April 30, 1846, the wife’s conveyance of her personal property in writing to be valid should be accompanied by the certificate of her privy acknowledgment. It does not follow that she could not make a verbal transfer of such property. Such transfer is not prohibited either expressly or by implication. See discussion.</p> <p>11. Same.—Where the law permits the wife to take and hold -property in her own right, it is generally held that she can transfer it as a feme sole unless restrained by legislation, and it is held that the wife could sell unlocated land warrants without writing and her privy acknowledgment.</p> <p>12. Case Adhered to—Deputy Clerk.—Herndon v. Cheek, 82 Texas, 146, adhered to, that a deputy clerk may take and certify proof or acknowledgment of a deed without naming his principal. He acts hy virtue of his own office under the law.</p> <p>13. Irrelevant Testimony.—The court properly excluded a deed to defendant, the grantor not having been shown to have had any interest in the land.</p> <p>14. Equity Outstanding.—The chain of title exhibited by plaintiffs in trespass to try title disclosed that other parties had an equitable interest in the land. Held, that such equity could not be set up in defense by a defendant not owning the same.</p> <p>15. Parol Evidence of Sale of Land.—Where parol testimony to a sale of land was given without objection and is undisputed the court on appeal will consider the sale as proved.</p> <p>16. Practice in Trespass to Try Title.—We know of no rule which precludes a defendant, who is a trespasser when the suit is brought, from buying up an outstanding title to or an equity in the land, and setting it up as a defense or as a basis for affirmative relief. It was error for the trial court to disregard evidence of a sale of the land in controversy by one defendant to another.</p> <p>17. Same—Partition.—Neither party having asked partition in the pleadings, it was not error to refuse, partition. The plaintiff upon establishing title to a part interest in the land sued for was entitled to judgment placing him in possession as co-tenant.</p> <p>18. Disclaimer—Costs.—Plaintiffs in trespass to try title sought recovery of an entire tract. The defendants contested the rights of plaintiffs to the entire tract. Upon recovery by plaintiffs of part they were entitled to their costs. Defendants not having disclaimed, upon failure to defeat the plaintiffs were subject to costs.</p> <p>19. Conveyance by Corporation—Vice-President.—When a deed is produced purporting to be by a corporation and signed by its vice-president and sealed with its seal, we think, in the absence of evidence to the contrary, it should be presumed that the contingency has arisen which authorized the vice-president to act, and that he is to be deemed pro hac vice the presiding officer of the corporation.</p> <p>20. Case Adhered to—Acknowledgment of Deed by Officer of Corporation;— Muller v. Boon, 63 Texas, 91, adhered to, in interpretation of article 600, Revised Statutes, .touching the iorm of acknowledgment required to a deed from a corporation executed hy its officer.</p> <p>21. Variance.—Land was conveyed to “The Ranger Cattle Company of Throckmorton County.” A conveyance was offered by the Ranger Cattle Company of Shackelford County and signed by the president and secretary and sealed with seal bearing the words, “Ranger Cattle Company, Throckmorton County, Texas.” Held, over objection, in absence of testimony that there were two companies, it will be presumed that there was a misnomer or misdescription, and which would not defeat the conveyance. Rev. Stats., art. 598.</p> <p>22. Reconvention.—Where in trespass to try title the defendant sets up title to part of the land, to entitle him to affirmative relief he must prove the facts constituting this title, and as to such facts the burden is upon him. See example.</p>

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

<p>1. Mandate—Transcript.—It is not necessary on a second appeal in the same case that the mandate in the first be set out in the transcript on the second appeal. It seems that this court should take judicial notice of its action in the first appeal.</p> <p>2. Fact Case—Limitation of Ten Years.—See testimony held insufficient to prove title to land by possession for ten years.</p> <p>3. Same — Possession Not Adverse.—See testimony supporting the finding of the trial judge that the possession relied upon as vesting title to the land sued for in the plaintiff was not adverse to the owner.</p> <p>4. Same.—Taking possession of land expressly to hold until it be put upon the market is not adverse; especially so when the owner recognizes the fact of such entry and agrees to give the party in possession the preference when the land should be offered for sale.</p> <p>5. Admissions.—The declarations of parties in possession of land explaining their possession are admissible. Such admissions made after title had matured by limitation would be of less weight, and of little importance unless such as to work an estoppel.</p> <p>6. Judgment in Trespass to Try Title.—Suit for land. The defendant pleaded title, but with indefinite description of the land claimed. Judgment for defendant in such case should be that plaintiff take nothing,- and for costs against him.</p>

<p>1. Hearsay — Bes Gestae.—-Negotiations of importance were had between the maker of a vendor’s lien note and one of the holders touching a partial failure of title to the land which was the consideration. The party to the negotiations with the maker, without his knowledge, wrote a version of the transaction to one of the joint holders of the note. This letter was hearsay, and in no way could he considered res gestae. Its admission against the maker was error.</p> <p>2. Agreement Postponing Payment.—An agreement postponing payment of a promissory note until investigations be had touching its consideration, etc., will not be considered as a new contract, taking the place of the original note. Limitations upon such agreement in parol would not apply as a defense.</p> <p>3. Degree of Certainty of Proof in Civil Cases.—It is error for the court to charge the jury, that the party upon whom the burden of proof is must prove his case to the satisfaction of the jury.</p> <p>4. Burden of Proof—Confession and Avoidance.—A defendant having pleaded in confession and avoidance facts relied on by him to show payment of the note declared on by plaintiffs, it was incumbent upon him to sustain his plea by proof of such facts.</p> <p>5. Possession by Maker of Note.—The note sued on having been surrendered to the maker before suit by agents of the holders for collection only, no presumption arose from such possession of the note necessary to he rebutted before recovery could be had upon the note so surrendered without authority.</p> <p>6. Disaffirming Act of Agent.—See facts held sufficient to avoid any necessity of a charge submitting whether an unauthorized surrender to the maker of the note sued upon was disaffirmed by the holders. The suit having been promptly brought upon the note, there was no issue for the jury.</p>

<p>The opinion states the case. ■</p>

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

On October 8, 1887, J. E. Mainor, then a merchant residing and doing business in the county of Montague, conveyed to the appellee Owen D. Burnette, as trustee, a certain stock of merchandise then in his store in the town of Bowie, to be sold and the proceeds applied to the payment of certain debts due by him in the manner specified in said conveyance.

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

<p>Appeal from Tarrant. Tried below before Hon. FT. A. Stelmah.</p>

<p>Res Adjudieata.—Under writ of sequestration. Dixon and his family were wrongfully ej ected from their home. In the sequestration suit Dixon, in reconvention, sought damages, actual and exemplary, for the wrongful proceedings under the sequestration. Testimony was introduced to the details of the transaction. The trial judge submitted special issues to the jury, omitting any reference to Dixon’s reconvention for damages. Under the findings of the jury judgment was rendered in favor of Dixon. Subsequently he instituted suit against the plaintiff in the sequestration suit and the sureties on his bond for damages. The defense of former judgment was pleaded. The testimony on the trial was substantially as had been given on the trial in the sequestration suit. Held:</p> <p>1. The issue as to damages having been properly raised in the plea in reconvention and in the testimony upon the trial, the matter was adjudicated in the sequestration suit.</p> <p>2. That it was not submitted to the jury with other special issues did not affect the question whether adjudicated or not. It may have been erroneous, but relief should have been sought by motion for new trial, appeal, etc.</p> <p>3. The judgment in the sequestration suit was a bar to the second suit.</p>

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

<p>1. Quitclaim Deed may be Basis for Limitation of Five Years.—The essential requisites of a deed necessary as the foundation of the plea of limitation of five years are, that it should, by-its own terms, or with such aid as the law requires, assume and purport to operate as a conveyance. A quitclaim deed is sufficient.</p> <p>2. Possession to Support Limitation.—A concurrent possession with others of an inclosure surrounding the lands claimed by the defendant, and tracts owned by others, they using the entire inclosure in common but respecting each the others’ rights, but adverse to all others, is a sufficient possession to mature title under the five years statute of limitations. See facts.</p> <p>3. Court of Claims—Approving Certificate for Benefit of Original Grantee. Original bounty certificate issued for services by John P. Smith * * * to his assignee Graves, who caused the certificate to be located. April 2, 1857, the Court of Claims approved it for benefit of original grantee. In 1888 patent issued in name of grantee. Held, that while the action of the Court of Claims was not conclusive against parties holding under Graves, still it rebutted the presumptions which might be raised from the recitals in the original certificate and in the field notes, that the survey was made for the assignee.</p>

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

<p>1. Business Homestead.—The principle is well established in regard to a business homestead distinct from the residence in a city or town, that it must be reasonably necessary to the business or calling of the head of a family.</p> <p>2. Same—Cases Adhered to.-—Shryock & Rowland v. Latimer, 57 Texas, 677; Wynne v. Hudson, 66 Texas, 1; Hargadine v. Whitfield, 73, Texas, 489; and Pfeiffer v. McNatt & March, 74 Texas, 641, adhered to.</p> <p>3. Fact Case—Business Homestead Negatived.—See facts where held evident that the business homestead of the claimant did not cover the house and lot in controversy. Its use had been abandoned and the business transacted elsewhere.</p>

<p>1. Demand Before Suit—Interest—Limitation.—The holder of a negotiable note payable on demand may sue without demand. The note is actionable at once. It bears interest from date, and limitation runs from its date.</p> <p>S. Foreign Administration—Case in Judgment.—The payee of a promissory note payable on demand died in New Jersey in October, 1883. His wife as executrix probated the will in New Jersey in February, 1884. She presented the note to executors of the maker in Texas. The claim was rejected. She brought suit June 4, 1890. In September, 1890, she qualified as administratrix in Tarrant County, Texas, having produced a certified copy of the will and the probate thereof from the Surrogate Court of Warren County, New Jersey. On September 24, 1890, she again presented the claim, duly authenticated, to the executors, who again rejected it; and on October 13, 1890, she amended her petition setting up her qualification as administratrix in Texas, and the presentation and rejection of the claim as presented the second time. Held:</p> <p>1. The first presentation and rejection were void, and did not put into operation the law of limitation as to rejected claims.</p> <p>2. That she could maintain the action upon the second rejection made after her qualifying as administratrix in Texas.</p> <p>3. That the action of the Probate Court of Tarrant County was not void, and could not be attacked by the defendants in this suit upon the ground that more than four years had elapsed from the date of the death of the testator.</p> <p>3. Interest.—While it appeared that the note was executed in the State of Illinois and no interest was stipulated, it not appearing what the rate of interest was where it was made, the note bore interest at the rate prescribed in Texas.</p> <p>4. Limitation—New Promise.—See letters from the maker of the note sued on held to contain an acknowledgment of the justice of the claim, complying with the statute in such cases (Rev. Stats., art. 3219), and constituting a new promise to pay.</p>

In the court below, the appellant, as plaintiff, filed suit against defendants, alleging in his petition that the Fort Worth National Bank was a banking corporation, duly incorporated under the laws of the United States, and that defendant Arnold was a notary public for Tar-rant County, and a clerk and employe of defendant bank; that on the 17tli day of September, 1890, plaintiff Hirshfield made, executed, and delivered to one J. W. Zook his certain promissory note in…

<p>1. Penalty for Overcharge for Freight. —Suit for statutory penalty against appellant railway company for exacting five dollars overcharge for carrying a cow and calf less than fifty miles. The estimated weight stated in bill of lading was 600 pounds. The waybill reserved the right to correct errors. On trial there was no testimony 1o the weight of the animal from which it could be ascertained whether an overcharge in fact had been made. In absence of such testimony the penalty should not have been imposed.</p> <p>3. Notice of Claim of Overcharge.—The freight was consigned to Day Hooks. The account for overcharge was made out in favor of W. W. Cruse. A new station agent represented the railway company. The freight was delivered August, 1889; the-claim for overcharge May 30, 1890. The agent could find no bill in name of Cruse, and the claim was rejected,' the agent not knowing that it was for overcharge in the shipment for Day Hooks. Held, the facts failed to show such notice to the defendant company as is required by statute prior to recovery of penalty. Sayles’ Civ. Stats., art. 4258b, sec. 10.</p> <p>3. Same—Notice to Station Agent.—The statute requires that notice he given to “the railway company or to the agent demanding or receiving the same,” and when notice is given to a station agent at the place where the overcharge is claimed to. have heen demanded or received, then if not given to the agent who demanded or received it the necessity for identifying the transaction would he more apparent. One claiming a penalty given by statute should show at least that the facts exist which entitle him to the penalty, and it seems to us when it is claimed that notice, in cases based on the statute in question, was given to an agent who is not to he deemed the agent of the railway company generally, that it should be shown that the notice was given to the agent who demanded or received the overcharge; for the statute in plain words requires this, and declares that the penalty shall not be recoverable unless notice be given to the railway company; and by the latter we would understand to be meant some officer of the company clothed with general powers.</p>

<p>1. Construction of Contract. — In a contract by Hoohstadter Bros, with Sam, employing the latter as their drummer, was the following clause: “Hoohstadter Bros, consent that said Sam may employ one Abe C. Loovis as an assistant traveling salesman, and the said Sam, for and in consideration of the commissions to be paid him by Hochstadter Bros., agrees to pay all the expenses of said Loovis. The said Sam also agrees that he will devote his entire time, and that of his assistant, to selling the goods of Hoohstadter Bros., and in furthering their interests, and to follow out their instructions strictly and exclusively; Hoohstadter Bros, allowing said Sam and his assistant to carry at the same time samples of boots and shoes for other parties, and to solicit and effect sales of them.” After some months service Loovis quit the employment and Hoohstadter Bros, on that account discharged Sam. In suit by Sam for damages for breach of the contract, held, that by the paragraph above set out Sam had contracted for the services of Loovis, and .that his contract was broken when Loovis left the service.</p> <p>2. Fact Case.—See facts showing that parties to a contract acted thereon as if its apparent meaning was that understood by them when making it.</p>

<p>1. Sale by Sheriff of Shares of Stock in Corporation.—At common law corporate shares are not subject to levy and sale upon execution.</p> <p>2. Same—Statutes.—Article 2294, Revised Statutes, provides, that “a levy on the stock of any corporation or joint stock company is made by leaving a notice thereof with any officer of such company.” Shares so levied upon may be sold under execution. Rev. Stats., art. 2297.</p> <p>3. Same—Garnishment.—By article 199, Revised Statutes, in garnishment proceedings the creditor is entitled to ascertain by the answer of the corporation what number of shares, if any, the debtor owns in such corporation. These shares so ascertained shall be ordered to be sold, or so much thereof as may be necessary. Rev. Stats., art. 208.</p> <p>4. Same—Uncertainty.—If in sale under execution of shares of stock no mention of the number of shares is required, then there would be nothing to prevent an excessive levy, and a very large estate might be sold to satisfy a very small judgment, and that, too, when the property was capable of division, leading to sacrifice to both debtor and creditor. There should be no such uncertainty in execution sales.</p> <p>5. Same. —When the law gives the creditor a process by garnishment through which he may reach the shares of1 stock, and get a sufficient description of them and' then have them sold under execution to satisfy his debt, he should not be allowed to proceed by execution in the first place without any description.</p> <p>6. Same—Shares Described may be Sold.—If by any proper means the officer who levies the execution can ascertain the number of shares owned by the debtor, we have no doubt of his authority to levy an execution upon so many of them as may be proper to satisfy it, as in other cases; but when he neither possesses nor can acquire such knowledge he can not make a lawful levy and sale.</p> <p>7. Imperfect Description of Stock—Void Sale.—Under a legal execution upon a valid judgment against John Stone the sheriff attempted to levy and sell shares of defendant in the “ J. Stone & Sons Live Stock Co.,” describing the property in the levy and in conveyance after sale as follows: “All the shares of stock owned and belonging to the said John Stone in said J. Stone & Sons Live Stock Co., and all the right, title, and interest which the said John Stone had on the 12th day of June, 1886, or at any time afterward, of, in, and to the said shares of stock.” No effort by garnishment had been made to ascertain the shares of stock owned by the defendant. In a suit by the purchaser against the corporation asserting ownership, held, that the trial court properly excluded said levy and sale. They passed no title in the stock.</p>

<p>1. Practice—Dismissal.—Upon death of one of several plaintiffs in an action of trespass to try title, the surviving plaintiffs can not on appeal complain that the court dismissed the suit as to the deceased plaintiff. The survivors being joint tenants can prosecute their suit and the dismissal does not affect their rights. Watrous v. McGrew, 16 Texas, 506.</p> <p>2. Proof of Heirship of Persons Making Themselves Parties as Heirs of a Deceased Plaintiff.—In trespass to try title a plaintiff dies and parties are allowed to make themselves parties plaintiff as heirs of tie deceased; the heirship is put in issue by the plea of not guilty, and devolves upon the plaintiffs the burden of proving their heirship upon the trial.</p> <p>3. Cancellation of Patent.—A patent was indorsed at the Land Office cancelled by authority of a judgment in a suit in which parties offering the patent had not been made parties. Held, the cancellation did not affect the rights of those not parties to the suit ordering the cancellation.</p> <p>4. Ratification. —But such cancellation might be acquiesced in by parties not bound See facts held to raise the issue whether the cancellation had been ratified. The certificate was relocated elsewhere, etc. Correspondence was had touching the relocation, etc.</p> <p>5. Return of Field Notes to Land Office.-—-Prior to the enactment of the Revised Statutes the statute (Pasch. Dig., art. 4568) required that the field notes of surveys be returned within one year from the date of the appropriation of the land, and provided in effect that a failure to do so should forfeit the location; but it did not provide that the land should not be subject to relocation by virtue of the same certificate.</p> <p>6. Withdrawal of Certificate from Land Office.—The withdrawal of a land certificate returned to the Land Office with field notes made under it by an unauthorized person does not make void the location. The most that would be required in such case would be that the owner take means for its return within reasonable time after knowing of the withdrawal of the certificate.</p> <p>7. Same.—See facts showing withdrawal without authority and reasonable diligence in returning certificate to Land Office.</p> <p>8. Fact Case.—See facts discussed and held to show that the original survey of the land in litigation, made in 1860, included practically the same territory embraced in corrected field notes of the survey made in 1873. Adjoining surveys were called for and ascertained, controlling course and distance.</p> <p>9. Verdict.—In an action of trespass to try title the verdict found for the defendant, and fixed sufficiently the extent of the land so found. It appearing that the finding included all claimed by the plaintiffs the verdict was sufficient; finding beyond was surplusage.</p> <p>10. Judgment.—In trespass to try title defendant pleaded not guilty. The verdict found for the defendant boundaries including more land than was claimed by the plaintiffs. It was error to enter judgment for the defendant for the land so described. The judgment should have been that plaintiff take nothing of defendant, and that defendant recover costs.</p> <p>11. Case Adhered to.—Armstrong v. Nixon, 16 Texas, 611, adhered to, that a judgment of dismissal against a deceased plaintiff is voidable as to his heirs, and should be set aside on application of heirs by motion if made during the term, or by petition subsequent thereto in the nature of a writ of error coram nobis.</p> <p>IS. Fact Case — Judgment of Dismissal Set Aside.—At September term, 1889, defendant suggested the death of one of the plaintiffs. May 28,1890, on motion of defendant, suit was dismissed as to the party plaintiff whose death had been suggested. On June 10, 1890, and during the term, application was made by one shown by affidavit to be the sole heir, to set aside the order dismissing the case, and to be allowed to appear in the case as plaintiff, showing merits. Held, error to refuse to set aside the dismissal.</p>

<p>1. Partnership—Interest of Partners. —In the absence of all precise stipulations between partners in respect to their respective shares in the profits and losses, and in absence of all other controlling evidence and circumstances, -the rule of the common law is that they are to share equally in both, for in such case equality would seem to be equity. Story on Part., sec. 24. The rule we think should be extended further, and that where there is no evidence either direct or circumstantial as to their respective shares in the capital stock, the presumption is also that they hold equal interest.</p> <p>2. Partners Putting Unequal Amounts into the Stock.—The fact alone that the partners have contributed to the partnership fund in unequal proportion may not be sufficient to show inequality in the profits, for the services of one may compensate the capital of the other, but it is itself a circumstance strongly tending to prove that upon final account each party is to be permitted to withdraw from the partnership fund the capital put in by him before a distribution among them of the firm property.</p> <p>3. Same.—We conclude that although an unequal contribution to the capital on part of the respective partners may not in the absence of other evidence be sufficient to overcome the presumption of an equal participation in the profits, it is sufficient to show that the capital is not to be divided equally upon a final settlement and distribution.</p> <p>4. Partnership Books.—In determining the rights of the partners in the partnership property when there is no direct evidence of the contract between them the partnership books may be considered. See example.</p> <p>5. Exports of Partnership Affairs — Evidence. — A bookkeeper made out a statement of the partnership business, also of the account of each member of the firm with the business. The reportwas sent by one partner to the other. In suit against the party sending the report, he having admitted sending the statement as well of the partnership business as of the account of each member with the firm, it was error to admit the report of the business without the production also of the account of each member with the firm. They were parts of the same transaction.</p> <p>6. Fact Case.—See facts upon which it is held that partners had the right to withdraw their capital before a division of the assets, one having bought the assets and the controversy being as to the amount of such assets purchased.</p>

<p>1. Voidable Sheriff Sale. — April 1, 1890, Bevil and twenty-nine other persons recovered judgment against Irvin for §1445.01 and costs. Irvin appealed, and the judgment was affirmed against him and his sureties. Mandate was filed April 16, 1891, and on April 22 execution issued. In the execution, of the thirty plaintiffs only Bevil’s name was given. Its attestation bore date April 22,1890. Its issuance noted on the back was 1891, and it came into hands of the sheriff April 22, 1891. The execution purported to issue under a judgment in the District Court; no mention is made of the appeal. It included §153.20 costs. The cost bill attached showed §76 of this to he costs on appeal. Sale was made by the sheriff of 4268 acres of land for §2280. Theland was shown to be worth from §14,000 to §28,000. Suit against the purchasers to annul the sale, the purchase money having been tendered before suit. Held:</p> <p>1. The execution did not describe the judgment as required in article 2281, Revised Statutes, as to names of parties, etc.</p> <p>2. The date noted by the clerk showed its issuance over a year from the rendition of the judgment under which it purported to be issued as a first execution. This irregularity was not cured by the attestation. Rev. Stats., arts. 2282, 1443.</p> <p>3. These were such irregularities in the process as would affect a sale and tend to deter prudent men from bidding for the property who otherwise might ¡have desired to purchase it and be willing to pay a fair price for it.</p> <p>4. The purchasers are charged with notice of whatever appeared upon the face of the execution and what might be developed by an examination of the judgment.</p> <p>5. Such defects coupled with great inadequacy of price must be deemed sufficient to authorize the setting aside of the sale, although the purchasers may not have been guilty of any fraud, may not have caused the irregularities, or may not have brought about the circumstances leading to the sale at an inadequate price.</p> <p>2. Cases Adhered to.—Cleveland v. Simpson, 77 Texas, 96; McKay v. Bank, 75 Texas, 184; Weaver v. Nugent, 72 Texas, 280; Taul v. Wright, 45 Texas, 394; and Cook v. Sparks, 47 Texas, 28, cited and adhered to.</p> <p>3. Execution in Appealed Cases—Eorm of.-—In cases where a money judgment has been appealed with supersedeas bond by a sole defendant, or by all the defendants when there are more than one, and on hearing has been affirmed by this court, with the ordinary judgment against appellant and sureties, execution should issue on the judgment of the Supreme Court, and not upon the judgment appealed from. Rev. Stats., art. 1057.</p> <p>4. Same—Recitals. — The execution upon return of mandate affirming money judgment should recite the fact of the rendition of the former judgment, the appeal therefrom, and the rendition of the judgment of affirmance, etc.</p>

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

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

<p>1. Brief—Practice in Supreme Court.—An assignment not presented by a proposition under it and sustained by statement from the record may be considered as waived.</p> <p>2. Mistake, in Absence of Fraud.—A court of equity may grant relief in case of a mutual mistake, but not on account of one entirely unilateral and in the absence of fraud. Applied to an effort to correct a deed when its terms were clear and understood by the grantee to express the agreement, and when the grantor had ample means of understanding it before executing it.</p> <p>3. Life-Estate.—The holder of a life-estate in land may sell such interest, and the purchaser may enter and hold the land until the death upon which the estate terminates.</p> <p>4. Will, Construction of.—Patrick May made a will. It defined the quantity e'ach child was to be allowed, and declared that the portion given to each of his minor sons “shall be allotted and designated for them by the mother Mary Ann when they become of age, and to have the same valuation as the other children’s lands.” The will then proceeds: “All the remaining portions, parts, and parcels of my lands I give to Mary Ann May, my wife, to control and use as she may see proper in every respect as her own; and it is my desire that she may proceed to execute this my last will without bond or security. In case she marries after my death, then she shall be required to give bond and security for the property held in trust of my minor heirs, to-wit, ’ ’ etc. By codicil special devises were revoked and the wife requested to 1 ‘ give and set aside after his death” to his children, naming them, “each fifty acres to be designated by his said wife.” The estate was in excess of all devises. Prior to setting apart to her children the shares devised, the widow by deed conveyed a small interest in a tract of- land in fee. The conveyance was attacked for want of authority. Held:</p> <p>1. That the widow having the power to designate the land for the minor children, could indirectly do so by designating land to her own use by sale, leaving sufficient to satisfy the rights of the children.</p> <p>2. That the will conveyed to the widow' in fee the excess over that left the children.</p> <p>5. Conveyance in Fee.—We think that under the statute (Eev. Stats., art. 551) it must clearly appear from the language (of the will in this case) that a less estate was intended to he created, otherwise the devise will be “deemed to he in fee simple.”</p>

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

<p>1. Judicial Knowledge as to Railways.—Railways are public highways, and it is a matter of history that important lines of railway once established have remained as fixed and permanent in their course as the rivers themselves. Their locality becomes so notorious and indisputable that courts take notice thereof.</p> <p>2. Same — Special Fact. — But in order .to take notice that the appellee railway company is a part of a system of railways (e. g., the Southern Pacific system) the court must be aware of the contract through which the system is created. A contractual relation which a railway might enter into with other railways to form a continuous line for the transportation of freight would not be of such historical or commercial notoriety as to render it so indisputable that the courts ought to take judicial knowledge that such was the fact."</p> <p>3. Same—Fact Case.—Freight was shipped in Indiana for Orange, Texas, upon the Louisville, Evansville & St. Louis Consolidated Railway Company. It was carried to Orange upon the Texas & New Orleans Railway Company, defendant. In suit for penalty for nondelivery of the freight the court properly excluded testimony of a witness that the Louisville, etc., railway company had an arrangement with the Southern Pacific system for through rates. The court does not judicially know that the defendant railway is a part of that system.</p> <p>4. Joint Contract—Evidence.-—A joint liability of the defendant with the railway company executing the bill of lading, or a ratification of the contract to transport the freight from Indiana to Orange, Texas, at the rate stipulated, will not be presumed from the fact that the defendant received and hauled the car and collected the charges.</p> <p>5. Pleadings.—See allegations held insufficient to charge the defendant with the execution of the bill of lading, or of being in partnership with the company receiving the freight from the shipper, so as to require a denial under oath by the defendant.</p>

The appellee J. C. Patton filed this suit in the District Court of Dallas County, November 26, 1889, against T. L. Marsalis, the appellant, for an alleged indebtedness of $7500. The grounds of his claim were as follows: 1. For services in superintending the erection of a stage in the Oak Cliff Park Pavilion, near Dallas. 2. For the alleged receipts of a summer opera company, engaged and managed by appellee in said pavilion, in June, 1889. 3.

<p>1. Liability During Railway Receivership for Injury to Employes.—The liability of a railway company for personal injuries inflicted upon an employe by reason of negligence while the road was in the hands of a receiver is recognized, where the road has been returned to the railway company improved by the expenditure by the receiver of its income in betterments, the injuries not resulting in death.</p> <p>3. Injury to Minor Employed by Railway Company.—One who employs a minor, knowing him to be such, in a dangerous business without his father’s consent becomes liable to compensate the father for any loss of the son’s services during minority which may result from an injury suffered in that business. This rule excludes the consideration of contributory negligence, and of the risk assumed in the contract of employment. The parent is no party to such contract, and is in no way bound thereby.</p> <p>3. Measure of Damages to Parent for Loss of Child’s Services.—The measure of damages to a parent for loss of his son’s services caused by his employment by a railway company is the.aggregate of the earnings of the son until his majority. It is not proper that expenses for boarding, etc., should be deducted.</p> <p>4. Verdict Not Excessive. — Verdict for §1200 not excessive in favor of father for loss of his son’s services for two years and twelve days. The son was crippled while in employ of railway company.</p>

Error from Travis. Tried below before Hon. J. P. Richardson. The cause was tried at the fall term, 1875, of the District Court of Travis County. Partition was confirmed December 12,1876. Petition for writ of error filed March 22, 1889. Ho statement is necessary.

<p>1. Liability of Railway Company for Claims Against a Receiver.—It is settled by repeated decisions, that by reason of the earnings of the road having been invested in betterments upon it, and of the property having been returned to its OAvner with the improvements upon it, and of the discharge of the receiver, the company became liable to pay all claims accruing against the receiver in operating the road.</p> <p>2. Limitation—Suit Against Receiver and the Railway Company.—A suit for damages for personal injuries caused by negligence brought Avithin twelve months after the injury against the receiver may be prosecuted against the company by making it a party to the suit after the discharge of the receiver. Such proceedings constitute but one suit. No new cause of action is alleged in making the company a party. It is but a continuation of the original suit, seeking recovery against a nerv party for the original liability, to which it had become substituted by reason of having appropriated the proceeds of a fund upon which the plaintiff had an equitable claim for the satisfaction of his demand.</p> <p>3. Case Adhered to.—Boggs v. Brorvu, 82 Texas, 41, adhered to.</p>

On May 3,1887, the appellant Thomas Henderson brought an action in the Hnited States Circuit Court for the ¡Northern District of Texas, at Dallas, against appellees W. L. Cabell and others, to recover damages in the sum of $4500 against said Cabell and the sureties on his official bond as Hnited States marshal for the Northern District of Texas for an unlawful levy upon a certain stock of goods, wares, and merchandise, made by said Cabell acting in his official character as…

<p>1. Grant of Franchise Not Exclusive.—A franchise or privilege extended by a city to a street railway company to construct and maintain a street railway along its streets does not interfere with the power of the city authorities over the streets, nor prevent a like grant to others. Such grant is not a monopoly.</p> <p>2. Corporate Rights—Charters Construed—Street Railways.—By legislative act, August 6, 1870, the Houston City Street Railway Company was incorporated. Section 8 of the act provides: “That all contracts made and entered into by and between the mayor and aldermen of the city of Houston and the said company, or any privileges or rights granted by the said mayor and aldermen of the city of Houston to the said company, shall be in all respects legal and binding on the aforesaid contracting parties.” The city charter special act, 1883, provided: “The city council shall have the exclusive control and regulation of all streets, alleys, public grounds, and highways within the corporate limits of the city, and to direct and control the laying and construction of railroad tracks, turnouts, switches, and to require that they be constructed and laid so as to interfere as little as possible with the ordinary travel and use of the streets. To control and regulate everything concerning street railways,” etc. We are of the opinion that by the terms of both of these charters (clearly by that of the street railway company) the Legislature intended to and did confer ample authority upon the city council to grant the franchise in question (to use streets of the city for street railway purposes), and to extend it for a term of years, as it did do.</p> <p>3. Vested Right—Street Railway Franchise.—We are also of opinion, the grant, having been duly accepted and acted upon by large expenditures by the street railway company, became a vested right or perfected contract which could not be subsequently repealed nor impaired by the common council or the authorities of the city; provided, however, there is no constitutional prohibition to the granting of such special privileges by the Legislature or under its authority.</p> <p>4. State Constitution—Street Railways.—While section 7 of article 10 of the State Constitution is entirely prohibitory and not permissive, still it is a clear recognition of the right of any city to give its consent to the use' of its streets by street railway companies, and it contains no limitation of the length of time for which such consent may be given.</p> <p>5. Legislative Power to Repeal Charter.—In the Constitution of 1876, under which the contract was perfected, it is provided (Bill of Rights, sec. 17): “No irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature or created under its authority shall be subject to the control thereof.” The city council repealed the ordinance which had been accepted and acted upon by the street railway company. The police under orders were preventing the construction of important parts of its railway system. The street railway company obtained an injunction preventing the interference by the city, etc. ' On appeal and touching the rights of the railway company as affected by the above provision in the Bill of Rights, held: We think the better opinion is, that the provision was intended to prohibit the Legislature from granting any “special privilege or immunity” in such way or of such character as that it could not be subsequently annulled or declared forfeited for such causes as might be defined by law, or condemned in the exercise of eminent domain; and it was further intended, that ‘1 all privileges and franchises’ ’ granted by the Legislature or under its authority should at all times remain subject to legislative control and regulation. It is held that the repealing act did not affect or destroy the rights of the street railway company acquired under the original city ordinance.</p>

<p>1. Description in Deed—Limitation of Five Years.—A deed conveyed “all the right, title, interest, and claim that I have in or to 450 acres of land situated in Houston County, on the east bank of Trinity River, and the same is known as the Brookfield Bluff place, and same is now occupied by said Murphy (grantee), and the field notes as made by W. M. James are hereby made a part of this transfer.” Held, that the description was not sufficient to make the deed a basis for title by limitation of five years.</p> <p>2. Same.—Such deed is voidable for want of a sufficient description. Parol evidence was admissible to identify the land so imperfectly described.</p> <p>3. Trespass to Try Title—Allegations as to Possession of Defendant.— The facts of the defendant’s trespass upon and withholding the possession of the land sued for in trespass to try title, are alleged for purpose of showing the plaintiff’s right to the land, etc. It is not the purpose of the law that the allegation of such facts will dispense with the necessity of evidence by the defense to prove possession to sustain a defense under the statute of limitations. See example.</p>

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

<p>1. Limitation—Charge.—Where limitations of five and ten years are set up as a defense, and there is no evidence of payment of taxes, it is error to submit to the jury the defense of five years limitation, and such error is material unless the testimony was such as to authorize a charge to find for the defense upon the issue of ten years limitation.</p> <p>2. Constructive Possession. —Where a party entered upon land under a deed, the constructive possession ceases upon his conveyance of a part of the tract, as to the part so conveyed. Upon the subsequent reconveyance to him his constructive possession will not begin until there is an actual possession of such part. In this case the tract had been subdivided into tracts of two acres each, and the constructive possession would not extend save as to lots upon which there was some actual tenancy.</p> <p>3. Description in Deed. —Frost owned lot 11 of the Luke Moore league, containing 148 acres. He sold parts of the lot. In the administration of his estate, and for purpose of partition, the interest in the lot belonging to the estate was regularly sold, estimated at 68 acres. Plaintiffs showing title under such sale, it being conceded that the Frost title was good, would be entitled to recover all of such tract not shown to have been disposed of by Frost, in absence of defense of limitation.</p>

<p>1. Conveyance of Pre-emption Bight.—A deed in writing is not essential to the transfer of a pre-emption claim. A verbal sale to a purchaser who immediately becomes the occupant is sufficient.</p> <p>2. Conveyance of Homestead Bight—Statute of Frauds.—Should it be conceded that the pre-emption'was a homestead right, the same rule as to parol executed sales of land as taking the case out of the effect of the statute of frauds would apply to the homestead right.</p> <p>3. Parol Sale of Land.—See facts held sufficient to establish a valid sale of land by parol contract with possession changed and consideration paid.</p> <p>4. Homestead.—It being insisted that the land was in fact the homestead of the family at the time of the parol sale by the husband, touching this contention the record does not show the fact that it was the homestead. See facts.</p> <p>5. Specific Performance.—A purchaser suing the vendor who had regained possession of a tract of land sold by parol, having tendered a balance of the purchase money before suit, on gaining the land should have been adjudged liable for the purchase money. The omission corrected on appeal.</p>

<p>1. Petition in Suit for Partition.—Two plaintiffs brought suit for partition of a described lot, alleging that they owned each one-quarter of said lot, and that the defendant owned one-half jointly with them. The petition did not allege a possession or trespass by defendant, nor set out the title under which the parties claim. Held, that a general demurrer was rightly overruled.</p> <p>2. Limitation — Possession by Joint Tenant. — The possession of a cotenant will be presumed to be in right of the common title. The tenant will not be permitted to claim the protection of the statute of limitations unless it clearly appears that he has repudiated the title of his cotenant and is holding adversely to such cotenant. Possession and payment of taxes on the property do not constitute the assertion of an adverse claim. In order to affect the cotenants with this adverse holding, notice of such fact must be brought home to them, either by information to that effect given by the tenant in common asserting the adverse right, or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have had notice of such adverse right. See facts held insufficient to charge such notice.</p> <p>3. Limitation.—The defendant, claiming under limitation of ten years, in her testimony developed the fact of seventeen months break in her occupancy. This, unexplained, was fatal to the defense. See facts.</p>

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

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

<p>Homestead—Facts Insufficient—Tenant in Common. —Henly while a merchant and owning a homestead of two acres, bought one-fourth interest in three acres adjoining, and subsequently another fourth interest in the same. Upon this lot was a gin, which was run in the ginning season. Henly becoming insolvent disposed of his stock, and was engaged by his brother as a clerk in his store. A public road was established between the two lots. Henly used the gin lot for fattening his hogs one winter, and watered his cattle and horse when he had one, in a tank in the gin lot. He was head of a family. The lots were in a small village not laid off into blocks and lots. The gin lot was levied upon under attachment at suit of appellant. The trial court held that the gin lot was exempt as a part of the urban homestead. On appeal, held: The use by Henly of the lot for penning and fattening hogs, and for watering his cattle and his horse when he had one, at the tank on the lot, if it could in any case be treated as sufficient to impress the lot with the urban homestead character, can not be so treated when the interest of the person so using it is only an undivided one, and when the tenants in common are in possession of and using the premises for an entirely different purpose. A different conclusion might obtain in a rural homestead.</p>

<p>1. Limitation.—A tax collector levied upon and sold for taxes a lathe attached to a part of the homestead. After the sale the collector and purchasers by force detached the lathe and removed it. Suit for damages against the parties removing it. Held, that limitation ran from the removal of the lathe, and not from the date of the levy.</p> <p>2. Part of Homestead.—The character of the property as attached to and part of the homestead, and covered by its exemption at the time of the levy and sale, would determine the rights of the parties in a suit for the removal of it after the sale.</p> <p>3. Homestead Exemption.—If the lathe was part of the homestead when the levy was made it was not subject to sale for the unpaid taxes due on property other than the homestead.</p> <p>4. Same — Waiver of Eights.—The provisions of the Constitution providing how alone the homestead of a family, of which the husband and wife are constituents, may be disposed of, are as applicable to that which is a part of the homestead as to the whole; and it can not be held under the laws of this State that the homestead exemption is a mere personal privilege which a husband may waive. That the husband pointed out to the officer property a part of the homestead gave no authority to the officer to seize and remove it.</p> <p>5. Damages for Injuries to Homestead.-—The tax collector and the purchasers at the tax sale having removed the property unlawfully levied upon and sold and converted the same, are liable for damages. They can not insist that the plaintiffs should pursue and recover the property unlawfully taken. The owners may elect to abandon the property and sue for its value, etc.</p>

<p>1. Testimony.—The plaintiff sued the railway company for damages for personal injuries received while in the employ of the receiver, etc., alleging that he was a minor, etc. The father as witness having testified that plaintiff at the time of the injury was about 19 years of age, over objection was allowed to testify further that “he looked like he was about 16 years of age.” As the testimony might have been relevant to impose upon the servants of the railway the duty of instructing the plaintiff in the details of his business and its dangers, the admission of the evidence is no ground for reversal.</p> <p>2. Relevant Testimony.—The minor suing for personal injuries suffered while in employ of the railway was properly permitted to testify “that no one ever explained to him the danger of the employment.” This was a material issue, for had the plaintiff been properly instructed as to such danger and its extent he would have assumed the risk of the employment and could not have recovered.</p> <p>3. Charges—Practice. —Where the court has sufficiently charged the law applicable to the case as made by the testimony it is not error to refuse further instructions. See example.</p> <p>4. Minor Employe — Duty of Master. — If a servant be under the age of 21 years and he has not been instructed by the master as to the dangers of his employment, it is a question for the jury whether he has acquired sufficient knowledge of the dangers to exempt the master from liability in case of injury.</p> <p>5. Same—Questions for Jury.—It is the duty of the master to inform a minor employe of the fact when the work is dangerous; also as to the extent of the danger and how to avoid it. If that be done he assumes the risk. Whether the minor knew his employment was dangerous and the extent of it, and had discretion enough to understand it before undertaking the employment, are questions of fact for the jury.</p> <p>6. Verdict Not Excessive. — An employe aged 19 years was injured while in employ as brakeman, under circumstances entitling him to compensation. One leg had to he amputated below the knee. The strength and efficiency of his right hand was impaired. Held, that a verdict for $9000 was not excessive.</p>

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

<p>1. Liability of Receiver—Causing Death.—A receiver of a railway operating it is not within the enumeration of the statute (Eev. Stats., art. 2899), either a proprietor, owner, charterer, or hirer. For an injury resulting in death by negligence of operatives of the road under the receiver the receiver is not liable.</p> <p>2. Fundamental Error.—The right to recover damages for causing the death, etc., is given by statute. That the law does not give the remedy sought must be taken notice of by the court, even if the point was not made at the trial or in assignments of error.</p>

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

<p>Adverse Possession—Joint Tenancy.—Berlocher owned a city lot adjoining his residence. His first wife died in 1870, leaving children of the marriage, and the lot wns community property. Berlocher married a second time. In 1874, joined by his second wife, he executed a trust deed upon his interest in the lot. The trust deed was foreclosed, and Opperman became the purchaser September, 1876. In 1879 Berlocher erected a stable upon the lot and used it and a water closet until his death in 1883. His widow, the plaintiff, held possession thereafter, and in 1886 Opperman purchased the interest in the lot owned by the children of the first marriage. The widow, October 4, 1890, brought her suit and sought to establish title by adverse possession for ten years. There was testimony that prior to building the stable Berlocher had obtained from Opperman leave to build it and use the lot. The wife disputed this fact, said she had no knowledge of it and did not believe it had been obtained. She recovered the lot in the District Court. On appeal, held:</p> <p>1. The mere possession of Berlocher after the sale was not of itself adverse to Opperman. Berlocher had the right to possession in right of his minor children, who owned half and were tenants in common with Opperman.</p> <p>2. The possession by the husband was necessary, tacked to her subsequent possession, to make up the term of ten years; and her husband not having been in adverse possession, her title was not completed.</p> <p>3. The entry by consent would negative an adverse possession. Upon this issue the positive testimony to the fact of consent was not put in conflict by the wife testifying that she had no knowledge of it and did not believe it.</p> <p>4. The purchaser from the children in 1886 would take all their rights in the lot, and would defeat a recovery of more than one-half the lot, even had the possession been adverse for the term of ten years.</p>

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

<p>1. Trial of Eight of Property—Indorsement of Value Upon Claim Bond., Personal property was seized under attachment. Claim under the statute was made by a vendee of defendant. The affidavit and claim bond stated the value of the goods to be within the jurisdiction of the Justice Court. No indorsement of value was made apon the claim bond. Motion to dismiss for want of the indorsement was overruled. Held, the statements in the affidavit and the bond that the amount W'as within the jurisdiction of the court were sufficient (in absence of the indorsements on the bond) to show the power of the court to try the case. The motion to dismiss was properly overruled.</p> <p>2. Fact Case—Bona Fide Purchaser.—See facts held sufficient to sustain a sale by an insolvent debtor, testimony failing to show fraudulent intent on part of the debtor and also showing innocence on part of buyer.</p> <p>3. Immaterial Error.—Parol evidence to a judgment was erroneously admitted; but as from other facts the judgment could not have been otherwise, such error was immaterial.</p>

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

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

<p>1. Independent Executors—Case Adhered to.—O'Brien v. Armstrong, 79 Texas, 602, adhered to, in holding that independent executors may employ agents to sell lands of the estate and become liable for reasonable commissions out of the funds of the estate.</p> <p>2. Evidence—Letters of One Executor Where There Are Two.—Where two executors qualified and were acting, in litigation against them about compensation by an employe about the business of the estate the letters of one of the executors were com‘petent. Rev. Stats., art. 1937.</p> <p>3. Variance.—In the petition in a suit for commissions earned by the plaintiff in obtaining a purchaser for land for defendants it was alleged that plaintiff had effected a sale of lands (described) to one C. Dart. There being conflict in the testimony as to who was the purchaser, it was error in the court to refuse an instruction, that if the plaintiff had not effected a sale to Dart, but to Butcher & Moore, to find for the defendants. The issue should have been submitted to the jury.</p> <p>4. Same.—Suit for commissions for making a sale of land. There was testimony that the contract of agency required sale of three tracts; evidence showed contract to sell but two. Held, that a charge should have been given that the plaintiff could not recover on the contract upon sale of but two of the tracts.</p> <p>5. Compromise.—An offer made by way of compromise, expressly to be of no effect unless accepted by all parties interested, can not when rejected be used for any purpose as a contract. See example.</p> <p>6. Principal and Agent.—It is well settled that a person can not act in the capacity of agent for both buyer and seller and receive commissions from both unless he should so act with the full knowledge and consent of both principals. See example. In this case agents of the land owners contracted with an agent to aid in effecting a sale to certain buyers who were also to pay commissions, or compensation, to the last named agent. Nor can a person be both seller and buyer, so that an agent to sell can not sell to himself.</p>

<p>1. Contract in Restraint of Trade—Illegal.—To render a contract void it is not necessary that it should create a pure monopoly. It will be illegal if the natural or necessary consequences of its operation are to prevent competition and create fietitious prices independent of the law of supply and demand; and to such an extent as to injuriously affect the interests of the public, or the interests of any particular class of citizens who may be interested, either as producers or consumers, in the articles which are the subject of restrictions imposed by. the contract. See example.</p> <p>2. Howard Oil Company Combination Illegal.-—The Howard Oil Company made a contract with owners of-four other cotton seed oil mills operated at different points in the State, whereby prices of seed cotton and cotton seed were fixed, and the markets where each was to buy named, and the prices of the oil, meal, caire, and lint were adj usted, the prices to be changed only by means stipulated. The markets named as affected by the contract are the principal cotton markets in the State. The four mills were guaranteed certain profits upon all cotton and cotton seed handled by them. Suit upon the guaranty against the Howard Oil Company and their directors. Held, that the contract declared on was illegal and void.</p>

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

<p>1. Control of Courts Against Unconstitutional Statutes.—The Constitution is the superior law; and when attempted legislation conflicts with its restrictions and purports to make a law which is thereby prohibited, it is clearly the duty of the courts to declare such legislation void and to give it no effect.</p> <p>2. Same—Distinction Between Laws Prohibited and Those Enacted in Irregular Manner.—It would seem that there should be a broad distinction between the authority to declare an act of the Legislature void for want of power to pass the law in any manner and the jurisdiction to avoid a statute upon the ground that some provision of the Constitution as to the mode of its passage had not been observed. A power in the courts to avoid a statute for irregularity on part of the Legislature in enacting it should clearly appear before its exercise.</p> <p>3. Journals of Senate and House of Representatives.—In the absence of some declaration in the Constitution showing that it was intended that the Journals of the two houses should have a conclusive effect in determining whether the acts of the Legislature have properly ripened into laws, we should hesitate long before conceding to them such effect by remote implication.</p> <p>4. Authenticity of Statutes.—Our Constitution provides, that after the passage of a bill it shall be signed by the presiding officer of each house in the presence of the house; and we are of opinion that when a bill has been so signed and has been submitted to and approved by the Governor it was intended that it should afford conclusive evidence that the act had been passed in the manner required by the Constitution.</p> <p>5. Same—Journals.—We can not look to the Journals of the Senate and House of Representatives in order to invalidate a statute signed by the President of the Senate and the Speaker of the House, and approved by the Governor.</p> <p>6. Case in Judgment—Mandamus.—By act of the Legislature the Forty-eighth Judicial District was created, with terms beginning first Mondays in February and October of each year. On a subsequent day of same session an amendment was passed prescribing a third term, beginning second Monday in May. A petition was filed with the clerk of the court with request that citation issue returnable to said May term of the court, it being the next term. The clerk refused. The plaintiff sought by mandamus to compel the issuance. The trial court refused the writ, and on appeal his action was argued to be correct, because (1) the Journal of the Senate of the Twenty-second Legislature, in which said bill originated, showed that it had not been presented and referred to and reported from a committee at least three days before the final adjournment of the Legislature; and (2) the necessity for the suspension of the rule requiring hills to he read on three several days in each house was not sufficiently stated in said act. Held, that the Journals can not invalidate an enrolled hill duly signed and approved; and the peremptory writ should have been awarded. So ordered on appeal.</p>

<p>1. Continuance.—Considering an application for continuance which failed to show whether it is for a first, second, or subsequent continuance, it would be necessary for the court on appeal to be satisfied, that when treated as either it shows that the refusal of the continuance was a wrong, before being considered ground for reversal.</p> <p>2. Diligence to Secure Witness.—It seems that due diligence to obtain the attendance of a witness residing in the county is not shown unless a tender of witness fees be shown upon service of a subpoena. The witness should be in contempt upon nonattendance, and a state of facts authorizing the issuance of an attachment should appear.</p> <p>3. Parties—Father and Mother May Sue for Son’s Death.—The statute gives damages to both father and mother for their son’s death. The statute (Eev. Stats., art. 2904) provides, that “the action may be brought by all of the parties entitled thereto,” etc. Both may join as plaintiffs.</p> <p>4. Practice—Exemplary Damages.—The charge of the court confined the jury to consideration of actual damages. Errors, if any, touching the question of exemplary damages, on appeal by the defendant are immaterial and will not be passed upon.</p> <p>5. Declarations as Part of Bes Gestae.—Action by parents against a railway company for negligently causing the death of their son. Several witnesses testified to material statements made by the boy after he was injured, in regard to what he was doing at the time and how the injury occurred. The declarations were made immediately after the injury and before be was removed from the ground. Held, that this testimony was properly admitted as part of the res gestee.</p> <p>6. Due Care by Boy of Tender Age.—In submitting the issue of proper care on part of the injured party who is of tender age, that fact must be considered by the jury. The charge of the court properly required the jury, “to consider the age of the boy at the time.” His age was about 14 years.</p> <p>7. Fact Case.—See facts beld sufficient to support a verdict for the parents against the railway company for negligently killing their son, aged about 14 years. The verdict was for §2500.</p>

<p>1. Purchase of Community from Surviving Husband.—It is a well recognized rule in this State, that a purchaser from the husband, of the community property, after the death of the wife, must establish some equitable defense or ground in order to defeat the claim of the heirs of the wife to their interest in one-half of the community, which vested in them at her death. Edwards v. Brown, 68 Texas, 335.</p> <p>2. Contract Between Husband and Wife.—Husband and wife and their two sons, both of age, executed an instrument, which was duly recorded June, 1858. By its terms a tract of 100 acres of land and some stock and personal property were conveyed by Jacob Schroeder to the two sons in consideration of services rendered by them to him, they agreeing not to make any charges against him for services rendered during his lifetime, “reserving, however, their rights as his heirs after his decease.” The instrument further recited, that to provide for his wife’s separate maintenance during her life, “he conveyed 100 head of cattle and one-half of his horses, one wagon and oxen, the said property to pass to his sons on her decease.” The mother and sons agreeing, she “takes the said property set over to her for her maintenance during her life and will not claim any other property of said Jacob, renouncing all her community, giving to her husband full power and authority to sell and convey or in any manner dispose of all the community,” etc. The community property at the time was worth §12,000. Less than one-sixth thereof was given the wife. After the death of the wife' the husband sold the lot in controversy. One of the sons had died, leaving no wife or child. The survivor brought suit against his father’s vendee for his mother’s half-interest and for partition. Held:</p> <p>1. That the contract was void as between the husband and wife.</p> <p>2. That as a power to sell, if it ever had any validity, it expired at death of the wife.</p> <p>3. That the son was not estopped to assert title in right of his mother. The grant to him was upon consideration of his services, and there was no consideration for any value of his mother’s estate.</p>