Volume 84 — Texas Reports

<p>1. Conflict of Evidence. — This court will not reverse upon the facts where the testimony is reasonably sufficient to support the verdict and judgment.</p> <p>2. Remarks of Counsel — Practice.—On appeal, it not appearing that objection was made on the trial to improper language by counsel in the argument, this court is not called upon to consider the question. But see remarks of counsel commented on and conclusion reached that no injury was caused by them.</p> <p>3. Transfer in Stock of Corporation. — In a suit for money paid out by plaintiff at the instance of defendant, in buying for defendant stock in a corporation, and it appearing that the presentation of receipts for subscriptions to stock of the kind purchased, to the secretary of the association without a written transfer from the original owners, entitled the holders thereof to the certificates of stock they represented, and that stock would have been issued to the holder if the receipts had been presented, held, that such receipts had not been indorsed by the original owner was not a valid objection to receiving them when bought by the agent and tendered to the principal.</p>

<p>1. Negligence — Proximate Cause. — Lumber was piled upon a public street in the city of Galveston. A drayman passing struck the pile of lumber, caused pieces to fall which injured the plaintiff. Suit for damages for the injury. Held, that whether the city was guilty of negligence in permitting the lumber to be piled upon the street, and knew or was chargeable with notice, were facts for the jury, and this although without the act of the drayman the injury would not have been caused. It was error to withdraw the issue from the jury.</p> <p>8. Same — Concurrent Proximate Cause. — If the city was guilty of negligence and it was a concurrent proximate cause of the injury, and the plaintiff was guilty of no contributory negligence, she should recover. The jury should determine these issues from all the facts, taking into consideration the powers, duties, and rights of the city under its charter and city ordinances.</p> <p>3. Immaterial Issue. — If the presence of the lumber pile upon the street was negligence, it would be immaterial how carefully the lumber was piled.</p> <p>4. Proximate Cause. — By proximate cause we do not mean the last act of cause, or nearest act to the injury, but it must be a concurring cause such as might reasonably have been contemplated as involving the result under the attending circumstances.</p>

The appellee instituted this suit in the District Court upon a claim for $173 and interest, alleged to be due as a portion of his salary as a teacher in the public schools of the State in Leon County during the year 1874; and which he claims was duly audited and allowed as a valid debt by the County Commissioners Court of that county under the Act of the Legislature of April 2, 1883.

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

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

<p>1. Citation — Identity.—Citation was issued against “The Southern Pacific Railroad Company.” The return of the sheriff showed, service upon “The Southern Pacific Company.” Plaintiff filed an amendment designating the defendant as “The Southern Pacific Company.” This amendment was not served, and judgment by default was rendered against “The Southern Pacific Company.” On error by “The Southern Pacific Company, ’ ’ held, that the name of plaintiff in error as defendant was not stated in the citation. The Southern Pacific Railroad Company and the Southern Pacific Company can not be regarded as identical.</p> <p>2. Amendment — Practice. — It is not the province of an amendment never served to supply the absence of service of citation. See example.</p>

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

<p>Appeal by Intervener Upon Cost Bond. — Suit by Anna Pfeifer joined by bus band against Emme for half-interest in certain personal property converted by Emme. The defendant pleaded that the property was claimed by Claflin & Co., and asked that they be impleaded. Claflin & Co. intervened. They had seized the property under attachment. On trial the plaintiff recovered against the defendant, and the judgment was against intervenors. The intervenors appealed, giving only bond for costs. Pending the appeal plaintiff sued out execution against the defendant, which was satisfied. On the appeal the judgment against Claflin & Co. was reversed and the property declared subject to their claim. The defendant then pleaded his payment of the judgment. The plaintiff admitting payment dismissed her suit as to the defendant. Trial was had resulting in judgment against the intervenors, who appealed. Held:</p> <p>-1. The payment under execution discharged the defendant against intervenors as well as plaintiff.</p> <p>2. Had intervenors desired protection without a supersedeas bond, they could have been aided by an injunction, or by an order requiring the money to be deposited in court.</p> <p>3. But the intervenors having requested such equitable relief as they might be entitled to, and having shown that the property was subject to their attachment lien, they are entitled to judgment against the plaintiff for the sum and interest she recovered from the defendant.</p> <p>4. Upon the facts judgment below was reversed and here rendered for intervenors against the plaintiffs and against the separate property of Mrs. Anna Pfeifer.</p>

<p>1. Suicidal Poisoning — Fact Case. — See testimony held sufficient to establish intentional suicide by taking morphia. A verdict for accidental suicide is manifestly against the weight of the evidence in the case.</p> <p>2. Opinion — Expert Testimony. — The court properly admitted, over objection, the question, “ Could a man have any conception as to how much a quarter of a grain or an eighth of a grain of morphine was if he was not accustomed to handle it?” and the answer, “I don’t think a layman could tell the difference between a quarter and an eighth of a grain if he was not accustomed to handling it.”</p> <p>3. Res Gestee. — Physicians were called in a case of poisoning by morphine. The opinions expressed at the time they were engaged in examining the patient with reference to his condition were in the nature of res gestae and admissible on a trial involving the issue whether it was a case of accidental or intentional suicide. The declarations were in the course of their business aud while engaged in a professional duty.</p> <p>4. Hearsay.- — It was shown that a witness had found a letter by the suicide the morning after his death. The witness was unable to give its contents. The letter was lost. Witness was asked if he had told one Phillips its contents. He did not admit it. Phillips was called to prove contents of the letter by narrating what the first witness had said. Held, the testimony of Phillips was incompetent to prove the contents of the letter.</p> <p>5. Testimony Relevant. — As tending to show intentional suicide it was proved that the deceased had refused to disclose from whom he got the morphine, saying that “he did not want to hurt anybody’s business.” In this connection it was competent to show that it was the custom for druggists to sell morphine to any one who applied to purchase it.</p> <p>6. Right to Open and Close. — In absence of complaint made in the trial court the action of that court giving the plaintiff the opening and closing will not be revised on appeal. The burden of proof of the sole issue was assumed by the defendant. The plaintiff was allowed to open and close the argument.</p>

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

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

<p>1. Renewal of Note — Limitation.—“San Felipe, Texas, Oct. 27, ’87. I hereby renew the within note, with all interest.” Signed by the maker. This indorsement upon a promissory note had the'effect of a new promise.</p> <p>2. Vendor’s Lien Notes — Suit upon a promissory note appearing to have been given in part consideration for a tract of land. It did not appear in the petition that other lien notes were outstanding. Held, if other notes had been given and were still outstanding, and the defendant- wished to take advantage of the fact, he should have pleaded it. The petition was not subject to demurrer.</p> <p>3. Failure of Consideration. — See answer held bad as plea of failure of consideration; (1) as not sworn to, and (2) not disclosing facts showing a failure.</p> <p>4. Stipulated Interest Upon Interest. — A promissory note stipulated that interest (which was payable annually) unpaid should bear interest. The note bore 10 per cent. Held, a judgment for the principal and 10 per cent thereon, and for interest at 8 per cent upon unpaid interest which was due, is in accordance with the former rulings of this court.</p> <p>5. Lien Note — Specific Performance. — A suit upon a promissory note for amount due thereon, with prayer for foreclosure of an express lien upon the land reserved in the deed, is in no-way a suit for specific performance; notwithstanding the rulings of this court treating a conveyance of land reserving an express lien upon the land as in some respects an executory contract.</p>

<p>1. Appointment of City Officers — Term of Office.— An amended charter for El Paso was enacted April 11, 1891. It provided for elections of certain city officers by the city council on the third Tuesday of April, 1893, and on the same day every two years thereafter. The original charter provided for such elections “on the third Tuesday after the popular municipal elections,” which were held on the second Tuesday in April, 1889. Both the original and amended charters gave the council power to fill vacancies. July 9, 1889, relator Bovee qualified upon being elected city clerk. On June 15, 1891, the city council elected Gatlin to the office, and he qualified. Quo warranto to test his right to the office. Held:</p> <p>1. If the amended charter in providing for the first election of clerk to be held April, 1893, was intended to extend the term of office of the incumbent, to that extent it was unconstitutional. No such effect can be given to it.</p> <p>2. The constitutional provision, that “all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified’ ’ (art. 16, sec. 30), never contemplated such legislation, but was intended to meet such emergencies as might occur under laws requiring elections or appointments every two years.</p> <p>3. There is no actual conflict between the old and new charters as affecting the facts of this case, and it may be presumed that the old remained as to officers until superseded by the new.</p> <p>2. Appointment to Fill Future Vacancy. — It does not affect the right of an appointee to an office that he was appointed in anticipation of a vacancy and before it actually existed; e. g., appointing to an office about to expire by limit of the official term.</p>

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

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

<p>1. Life Insurance Policy — Conditions Therein. — Suit was brought upon a life insurance policy. In it was the following clause: “Notice to the holder of this policy: No agent has power on behalf of the company to make or modify this contract of insurance, * * * to bind the company by making any promise, or by receiving any representation or information not contained in the application for this policy.” The policy issued began as follows: “In consideration of the application for this policy, which is hereby made a part of this contract,” etc. The defendant pleaded that one of the answers (stating it) in the application signed by the insured was false, and avoided the policy. By supplemental petition it was alleged that one Campbell, defendant’s agent, wrote the answers, and that he well knew of the former application for insurance which had not been granted, etc., and that the defendant was bound by the act of Campbell. The defendant excepted to the supplemental petition for not alleging that Campbell11 was authorized to do such acts, or to receive such knowledge. ’ ’ The exceptions were sustained. Trial and verdict for defendant. On appeal, held, that the stipulation in the policy restricting the power of agents to act for or receive information touching the policy would at least confine the authority to thus act to a general agent, or to one acting within the scope of his employment; and it should have been so alleged by plaintiff. It was not charged that Campbell was an agent with authority to bind the company.</p> <p>2. Statements in Application for Life Insurance Policy. — The application affirming that the statements were correct as in the application, their binding force can not be avoided by evidence that the applicant was in fact unacquainted with the contents of the application, or that they were known to be false by the soliciting agent who wrote the answers for the insured and signed it as a witness.</p>

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

<p>1. Case Adhered to. — Howe v. Harding, 76 Texas, 19, adhered to, the litigation growing out of same contract.</p> <p>2. Consideration for Bight of Way. — In a contract with a railway company for right of way, it was stipulated with the land owner that the railway company would erect a tank to be supplied with water from a spring near the track, for use of which the railway company was to pay as much per month as it paid to any other on the line for like service. Held, that the obligation to pay existed so long as the right of way was used under the contract; the railway could not avoid payment by removal of the tank and ceasing the use of water from the spring.</p> <p>3. Bes Adjudioata. — The former suit did not preclude the recovery for the stipulated use of the spring subsequent to such suit; the railway company still using the right of way.</p>

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

<p>1. Duty of Street Railway Company. — The following charge approved: “A street railway company using a public street by permission of the city council must so construct its track as to not unnecessarily impede travel, or to render travel over and across it more dangerous to persons using it with such care and skill as a person of ordinary prudence and skill should use under the circumstances than it would be but for such track being there in the condition it was.” This does not assume the track under investigation to have been in good or bad condition.</p> <p>2. Same — Control of City Authorities, — If a street railway track upon a public street by negligent construction or otherwise becomes unsafe to the public, it is no defense that by contract with the city and the railway there should be no liability, nor that the track had been laid as directed by the city authorities. The city can not contract so as to justify negligence to the injury or impairment of the safety of the public. If the city join in the unlawful act it would also be liable.</p> <p>3. Law of Liability for Injury on Public Street. — If the plaintiff was rightfully driving on the street across the track of the street railway, and in so doing was exercising due care, and was injured by reason of the negligence of the defendant the street railway company in the construction of its track, or in suffering it to become out of repair and dangerous to travel, it would be liable, notwithstanding the city had directed and agreed to such negligence and approved it.</p> <p>4. Verdict. — See facts held sufficient to support a verdict for §500 for injury to plaintiff suffered in crossing a street railway track when driving in a dog cart across the track.</p>

<p>Construction of Contract. — A contract “between W. E. Moore, general agent of the New York Life Insurance Company, party of the first part, and J. E. Lester, of El Paso, Texas, of the second part, witnesseth.” Moore then appoints Lester district agent in general terms, but does not give him any exclusive rights as sole agent. He is appointed “as district agent of said company for the purpose of canvassing for applications,” etc. He is prohibited from making any contract for the company. He is required to “act exclusively as agent for said company so far as to tender to it all applications obtained by him or under his control,” and “to devote sufficient time and energy in the service as to qualify him as a good and efficient district agent.” It is further agreed, “that in case said general agent, or any special agent acting for said general agent, shall secure business conjointly with said agent, the above rates of commission shall be divided equally.” That said district agent “shall not under any circumstances endeavor to prevent a person from insuring through any other agent of said company by offering such person the commission or any part thereof.” That said district agent “shall have under this agreement no claims whatever for commissions or other services against the New York Life Insurance Company, and that the said general agent may offset against any claims under this contract any debt or debts due by said district agent to said general agent.” Lester was appointed district agent, and on going to El Paso found another agent on duty preventing his occupancy of his district. He sued for damages, expenses, loss of time, and of profits of the contract. The contract was made part of the petition. General demurrer to petition was sustained. On appeal, held:</p> <p>1. The contract made part of the petition will be looked to and will control contradictory allegations in the petition.</p> <p>2. Under the contract he could not assert any claim against the company; besides, it did not provide for an exclusive agency.</p>

<p>1. Deed to Wife Conveys to Community, Unless to Her Separate Estate. It has become not only a rule of decision but a settled rule of property in this State, that all property acquired by the husband and wife during marriage, whether the deed be in the name of the one or the other, upon a consideration deemed valuable in law, is presumed to be community property which the husband may dispose of, and a purchaser under the husband may rely upon this presumption; and the fact that the deed to the property is in the name of the wife alone will not of itself give him notice of her separate claim or right in the property apart from the community, nor even put him upon inquiry.</p> <p>2. Construction, of Deed. — A deed conveying land to a married woman, “her heirs and assigns, to her proper use, benefit, and behoof forever in fee simple; and I,-, do warrant the said land against all troubles, debts, mortgages, and against the lawful claim or claims of all persons whatsoever to the said grantee,” does not indicate that it is to the wife’s separate estate, nor put a purchaser upon inquiry as to her equities. Although it should convey the legal title to the wife, such title was subject to the statutory rule giving the husband the power to sell it.</p> <p>3. Deed from Wife to Husband — Record of Void Deed. — A deed from a wife to her husband is void and its record affects no one with notice of its contents. Nor would the fact that the attorney for a purchaser read from the record hook the copy of such void deed affect such purchaser unless it formed a link in his chain of title.</p> <p>4. Recitations in a Deed. — If, however, the so-called deed from the wife to her husband had been made known to the purchaser, its contents not claiming- the land as her separate property, nor reciting any fact showing her separate interest, it would not affect the purchaser with notice of any secret equity in the wife.</p>

<p>1. Duly Recorded — Official Seal. — A mortgage was recorded. On the record hook at usual place for the seal was written by the officer making the record, “no seal on." The original of the mortgage was produced with the impress thereon of the official seal. The officer making the certificate testified, that he attached the seal at the time he made the certificate. These factsappearing, held, that the mortgage was duly recorded.</p> <p>2. Marshalling Securities. — A junior lien holder on purchasing an older lien is in no worse condition as to his original lien than if he had not purchased.. Having acquired the older lien, he has the right on foreclosure to have the securities so marshalled as to most fully protect himself. See example.</p> <p>3. Vendor’s Lien — Surrender.—A vendee executed a release of his title in consideration (recited) of the surrender of his notes. These notes never were surrendered. They were subsequently foreclosed. Meld, that an incumbrancer could not avoid the foreclosure on ground that the notes had been cancelled or satisfied. See example.</p>

<p>Evidence — Deed. — Appellants sued in trespass to try title. Title was shown in one Stephens. The appellants proving their heirship to Mrs. Elizabeth Graham, wife of John M. Graham, offered in evidence (used by consent without accounting for absence of originals) the record of a warranty deed from Stephens to J. M. Graham, and conveyance from J. M. to Mrs. Elizabeth Graham; this latter upon same page of the record (Book E, page 318 of records of deeds); and immediately after said deed, without any space or lines intervening, acknowledged before same officer on same day, the record in same handwriting and done with same pen and ink, and but a single file mark for said two instruments. The last instrument is as follows:</p> <p>“Assignment. — I assine the within to Elizabeth Graham for value received of her the sum of fourteen hundred and sixty-three dollars and thirty-three cents, this April 11, 1843. [Signed] “ J. M. Graham.</p> <p>Test: “Jacob Barres,</p> <p>“N. D. Graham.”</p> <p>This was acknowledged as follows:</p> <p>“Republic of Texas, County of Washington. — Before me, John Gray, clerk of the County Court in and for the county aforesaid, came John M. Graham, and acknowledged to me that he signed over the above deed as therein expressed. Given under my hand and seal of office this 7th day of August, 1844.</p> <p>[l. s.] [Signed] “John Gray, C. C. W. C.”</p> <p>The latter instrument was excluded. A nonsuit was taken and reinstatement refused. On appeal, held:</p> <p>' 1. . These facts are persuasive in producing a reasonable belief that the excluded instrument was in fact written on the deed from Stephens to Graham, and that it referred to the deed and land therein described. The testimony should have been submitted to the jury.</p> <p>2. The certificate of acknowledgment is sufficient. Hart. Dig., art. 2777.</p> <p>3. The words of the instrument sufficiently indicated the purpose to convey.</p> <p>4. The reference to the within deed and land described gave it certainty.</p>

<p>1. Subrogation. — Where on request or consent of the maker his notes are taken up upon an agreement which for any cause falls through, he can not complain that the party so taking up such notes shall claim repayment of the money paid out for the notes and assert whatever liens were held by the original holder of such notes to secure them. See facts.</p> <p>2. Immaterial Error. — While it was error to submit as an issue an alleged contract to which there is no testimony, still such error becomes immaterial if the law implies a liability identical with that found upon the issue improperly submitted.</p> <p>3. Subrogation. — Payment was made by consent of the maker under expectation of obtaining title to the land upon which the notes were secured. It would operate a fraud upon the party so taking up a part of a series of notes to allow the maker on payment of the remainder of the series to keep the property and to refuse payment of the notes so taken up. See example.</p>

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

<p>Appeal from Dallas. Tried below before Hon. Chas. Feed. Tucked.</p>

<p>1. Judgment Against Receivers. — Suit for damages against the Taylor, Bastrop & Houston Railway Company. By supplemental petition it was alleged, that hy some contract the defendant had agreed with the Missouri, Kansas & Texas Railway Company, then in the hands of Eddy and Cross, receivers, hy which the latter occupied and used the road, and Eddy and Cross were made defendants. Judgment for plaintiffs, and execution stayed until the road should pass out of hands of receivers, and certifying the judgment to the court controlling the matter for observance. The original defendant had pleaded several defenses. Eddy and Cross pleaded general denial, and adopted the pleas filed by the railway company. There being no evidence showing any contract between the two companies, the judgment against the receivers had no testimony to support it.</p> <p>ON REHEARING.</p> <p>2. Measure of Damages.' — In suit by parents for damages for loss of sen-ices of their minor son, killed through negligence of railway company, it was error to instruct the jury that they could consider “the comfort of his society had he not died” in determining the amount of recovery, and such charge is ground for reversal.</p>

<p>1. Stipulation Against Liability by Carrier. — That a common carrier, unless forbidden by statute, may exempt itself from liability for loss by fire unless caused by the negligence of itself or its servants, is well settled. Such a limitation is reasonable.</p> <p>3. Same — Statute Construed. — Article 378, Revised Statutes, prescribes that 11 railroad companies and other common carriers of goods, wares, and merchandise for hire within this State, on land, or in boats or vessels on the waters entirely within the body of this State, shall not limit or restrict their liability as it exists at common law,” etc. This does not apply to a foreign or interstate shipment, hut only to shipments purely domestic, beginning and ending in the State of Texas.</p> <p>3. Domestic Shipment. — By a contract of domestic shipment is understood such a contract as contemplates the shipment of goods from one point in the State to another point therein. Transportation is only domestic when confined to the boundaries of the State in which the contract of shipment is made.</p> <p>4. Foreign Shipment. — By a contract of foreign or interstate shipment is understood such a contract as contemplates the transportation thereunder of goods from a point within the State to a foreign country or to a point within another State.</p> <p>‘ 5. Contract for Foreign Shipment. — An undertaking .on the part of the carrier is a contract for foreign shipment when contracting to carry cotton upon its lines and to deliver it to its connecting lines, to be carried to the city of New Orleans, Louisiana, there to be delivered to the West India Pacific Steamship Company, to be transported to Liverpool and there delivered to Martin, Wise & Fitzhugh, or their assigns.</p> <p>6. Same — Illustrations.—The track of a railway company may extend beyond the State; yet if. goods be carried by it from one point to another within this State, such carriage constitutes transportation within this State, and such railway is a “carrier within the State.” But if the railway, whether by itself or by its connecting lines, its agents, transport goods from a point within this State’ to a point in another State, it is a carrier not “ within this State.” In the latter it is engaged in interstate commerce.</p> <p>7. Bill of Lading Limiting Liability to Line of Carrier. — Nor will the bill of lading stipulating for the carriage of the cotton to points -without the State be divested of its interstate character and become a contract for domestic shipment by a clause limiting its liability until the cotton shall be delivered upon shipboard at the city of Galveston.</p> <p>8. Declarations by Agent. — Declarations of an agent must be within the scope of his authority and while the transaction is yet depending; e. g., a tabulated statement made out by one known as “claim agent” as to the bales, etc., of cotton burned, is not competent against 1he principal unless it be shown that it was within the extent or scope of his business, and that it was within the discharge of his duty while the obligation of the carrier yet continued.</p> <p>9. Hearsay. — A witness testified, that the cotton “was destroyed by fire on November 14, 1887, at Greenville; * * * that he knows this cotton was destroyed * * of his own knowledge, as far as it is possible for him to know it -without actually seeing it burn.” Objections to it were overruled. Held, there are conditions in -which one can acquire knowledge without seeing. Its admission can not be held error.</p> <p>10. Relevant Testimony. — Witness was permitted to testify that the cotton destroyed, 473 bales, of which a part was involved in the suit, was worth in excess of 323,649.20. Held, the testimony tended to prove the value of the cotton lost, and was admissible.</p>

<p>1. Verdict Not Excessive. — See facts sustaining a verdict for §5000 damages for bodily injuries suffered by plaintiff in falling into a ditch negligently left open in a public street in the city. The injury was a double fracture of the thigh.</p> <p>2. Assignment of Error Insufficient. — “The court erred in not submitting special charges 1, 2, 3, 4, and 5, requested by the defendant.” Such an assignment is too general, and is not considered by the court.</p> <p>3. Contributory Negligence — Charge.-—“Persons traveling upon the streets must use due care to avoid accidents; and if you believe from the evidence that the plaintiff failed to use that care under all the circumstances in evidence which a person of ordinary prudence would have used under such circumstances, and that such want of care on his part contributed to cause his alleged injury, you should find for the defendant, though you should also believe that the defendant was negligent.” This charge approved as correctly stating the law of contributory negligence in the case.</p> <p>4. Same — Fact Case. — See facts which do not show that plaintiff was wanting in due care for his safety in crossing a public street in the nighttime, when he fell into a ditch in the street, of which he had no knowledge.</p> <p>5. Notice of Condition of Street by City. — The question of notice, if there is sufficient evidence to justify its submission, is a question of fact for the jury. When the dangerous condition of a street is not due to municipal agency, the city will not be liable unless having notice it fail to remove the danger.</p> <p>6. Fact Case. — Without knowledge of the city authorities one Huffman dug a ditch across a public street about two feet in depth with precipitous sides. It had been in existence about three weeks. It had attracted the attention of a policeman, who notified the city attorney about it. It was on a public street. These circumstances would justify a jury in finding that the city had notice of the ditch.</p>

<p>1. Domestic and Foreign Freight Contracts. — The opinion in Railway v. Sherwood, Thompson & Co. (ante, p. 125), adhered to.</p> <p>2. Declarations of Claim Agent. ■— See facts showing the extent and scope of the authority of a claim agent of the railway company held sufficient to render the reports made up by such agent binding as admissions against the railway company.</p> <p>3. Secondary Evidence. — It being shown that the original of a document was without the State, it was competent to introduce a copy of such instrument. See facts.</p> <p>4. Testimony to Value. — See testimony held competent and sufficient to prove weights and value of certain cotton bales destroyed by fire, in suit for value thereof.</p>

<p>No statement is necessary.</p>

Tried below before Hon. Chas. Fred. Tucker. Appellee, plaintiff below, instituted this suit against appellant, defendant below, upon a bill of lading, on July 30, 1888, in the District Court of Dallas County, Texas, for $2000, with 8 per cent interest thereon, the alleged value of forty bales of cotton lost or destroyed in transit on November 14, 1887.

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

<p>1. Charge — Testimony.—See testimony calling for a charge upon the rights of the plaintiff suing for damages for an assault and battery made by defendant upon the plaintiff. The affair was begun in the bar room of a hotel, and the defendant had pursued plaintiff out of the house, the fracas terminating upon the sidewalk. The jury were told in substance that the plaintiff being still in apparent danger had the right to call for police officers, and that for so calling the defendant had no right to remove plaintiff by violence from the sidewalk.</p> <p>2. Res Gestee. — The petition charges that while plaintiff was in the general sitting room of the defendant’s hotel the defendant without provocation unlawfully assaulted plaintiff, inflicting great and serious injuries, etc. The testimony showed such assault in the sitting room and continued upon the sidewalk. Held, the transaction on the sidewalk was an emanation of the occurrence in the sitting room, and was relevant to the allegations as res gestae.</p> <p>3. Exemplary Damages. — See facts sustaining a verdict for exemplary damages.</p>

<p>Charge Upon Weight of Evidence — Surveyor’s Report. — In a suit involving boundaries in which an order of survey had been made and the report of the surveyor submitted in evidence, there being conflicting testimony, it was error, as charging upon the weight of evidence, to instruct the jury that the surveyor’s report must be taken as correct and true until it is shown to be erroneous; and that the burden of proof is upon the defendant to show that this report is erroneous.</p>

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

<p>1. Will — Trust with no Beneficiaries Named. — The clause in a will, “all other property, both real and personal, which I may own at the date of my death, after paying, etc., * * * I give, devise, and bequeath to my brother Abe Heidenheimer, in trust, to be disposed of as I have heretofore or may hereafter direct him to do,” is inoperative, because it does not designate the beneficiaries for whom the trust was intended.</p> <p>2. Will — Devise Must be Certain — Writings.—A will on its face or by reference to some paper existing when it is executed, and so referred to and identified as to become a part of it, must declare not only what the bequest or devise shall be, but also who shall take it directly or beneficially through a trustee. A paper not so identified can not be used as part of the will, or to direct its bequests.</p> <p>3. Parol Evidence as to Testator’s Intent. — Parol testimony is admissible often to enable a court to give effect to an intention expressed in a will; but it is never admissible for the purpose of showing a testator’s intention by proof of his oral declarations of intent, either as to the person who shall take his estate or as to what particular part of his estate any one person was intended to receive.</p> <p>4. Statute of Wills. — While the language of the statute prescribing the requisites of a will is affirmative, it as fully denies testamentary effect to parol declarations as would it if it expressly declared that no testamentary disposition of property should be made in any manner other than that prescribed.</p> <p>5. Heir at Law Takes Upon Lapse of Trust. — In the absence of a valid testamentary disposition by the testator of any part of his estate, such estate vests in the heir at law; and as the will under consideration did not purport to confer upon the trustee any beneficial interest and no beneficiary was named, the legacy lapsed and the heir at law takes the estate given to the trustee in trust. A trust not sufficiently declared on the face of the will can not be set up by extrinsic evidence to defeat the rights of the heirs at law.</p> <p>6. Same. — The bequest to Abe, Heidenheimer being in trust without a declaration of the beneficiaries in the face of the will, or by some paper that can be regarded as part of it, is no bequest at all so far as the beneficial interest is concerned, for it shows an intent that it should not vest in him, and does not declare in whom it shall vest. The law vests it in the heir.</p>

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

<p>1. Suit for Office — District Court. — That the District Court may entertain a suit for an office the value of which is within the court’s jurisdiction is not an open question. It has always been recognized. See allegations making the suit one for the office and not a contest.</p> <p>2. Irregularities. — That the County Commissioners Court disregarded the ward subdivisions of the city of Hempstead, of which there are four, and divided the city into two election precincts, adding to each a part of the adjoining country, will not annul an election for a county officer; that is, votes given in the two precincts should not be disregarded in a suit for an office.</p> <p>3. Case Adhered to.- — Davis v. The State, 75 Texas, 424, adhered to.</p> <p>4. A Minor Acting as Clerk of an Election.. — A minor acting as clerk of an election may be considered a de facto officer, and the will of a majority of the voters will not be defeated by reason of such fact.</p> <p>5. Pleading. — The plaintiff in general terms alleged that he had been elected to the office of sheriff, and was entitled to it, and that its value was sufficient to confer jurisdiction upon the court. The special facts alleged and relied upon to sustain his election fall short of doing so. The demurrer of defendant, therefore, was properly sustained.</p>

<p>1. Case Adhered to. — Railway v. Dwyer, 75 Texas, 572, adhered to, being a former appeal in this case.</p> <p>3. Facts Discussed. — The only evidence relied upon to show that the appellant authorized its connecting carrier to execute the bill of lading, or that it was ratified after its execution, is the circumstance that when appellee demanded the cargo of nails appellant’s agent atBrenham, Texas, offered to deliver it upon payment of the freight specified therein, provided appellee would surrender the bill of lading and execute a receipt to the railway company for the overcharge. This fact is consistent with the theory that appellant was a party to the original contract; hut it was equally consistent with the other theory that the object of the offer was to maintain the custom of the line of transit by respecting the contract of the connecting carrier and looking to it for reimbursement. The demand for the bill of lading, and of a receipt for the overcharge, tends to show that the latter was the motive which prompted the offer. The general freight agent of the railway testified fully and expressly denied the anthority of the railway company which executed the hill of lading to hind the defend- . ant. It was also shown that the charges paid by defendant on receiving the freight were paid in ignorance of the terms of the freight contract. Held, that the testimony was insufficient to show either its execution or ratification by the defendant.</p> <p>3. Construction of Penal Statutes. — Every man is presumed to know the law; and it -would seem that before any one should be punished either in a criminal or civil action for an act claimed to he penal the offense should be clearly defined, and that any grave douht as to the intention of the Legislature should he resolved in favor of the defendant.</p> <p>4. Damages in Suit for Penalty. — It being insisted that a carrier who receives goods from another and pays the charges that have then accrued can only claim to be reimbursed for the just and reasonable charges which were due for the carriage, this is conceded as applying in an action for damages for detaining the goods, or for the recovery of an overcharge, but the rule does not apply when a penalty is sought to be recovered.</p>

<p>Error from Tyler. Tried below before Hon. W. H. Ford.</p> <p>The opinion states the case.</p>

<p>1. Title by Limitation. — It was in evidence that one under whom the defendant claims went into possession in 1841 of a tract of land of which that in controversy is a part; that the residence of such party was and continued to be upon land the title to which was in dispute by reason of a controverted boundary line. The possession was continuous and adverse until the statute of limitations was suspended, January 28, 1861. Held, under these facts title by limitation had vested in parties so in possession; such title is good, regardless of breaks in possession thereafter. See facts.</p> <p>2. Constructive Possession. — The land sued for was part of a tract occupied from 1841. Limitation began by reason of the adverse possession of and upon the land in dispute. Title by limitation was completed, and subsequently a part of the tract was sold. Held, that the purchaser took title by reason of his vendor’s title, and it does not atfect his rights that the particular part had never been in actual possession. The title vesting by constructive possession extended to the limits of the tract under which the actual possession was taken and held.</p>

<p>No statement is necessary.</p>

<p>1. Case Adhered to. — A. 0. Petri & Bro. v. First National Bank of Fond du Lac, 83 Texas, 424, adhered to.</p> <p>2. Negotiable Paper. — A holder of negotiable paper taken in due course of trade before maturity takes it discharged of any vice as between the original parties, and can recover the face of the paper regardless of the amount the holder paid therefor.</p>

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

<p>Daniel Titterington and his wife brought this suit on the 20th day of June, 1887, against the appellants, to cancel and annul a certain deed to a right of way, made on April 16, 1881, upon the ground of fraud and failure of consideration, and on account of the alleged incapacity of the officer to take the privy acknowledgment of Mrs. Titterington to the deed. They also prayed for judgment for the land and for rents; and upon a verdict of the jury in their favor that character of judgment was rendered for them, but the damages were duly remitted, and the judgment now stands only for the possession of the land. The court submitted to the jury only the issue of fraud upon the part of the Chicago, Texas & Mexican Central Bailway Company in procuring the deed originally, and in failing to erect a depot, as that company had agreed to do, upon the land of the appellees.</p> <p>It appears that the land conveyed by the appellees to the railway company was a part of their homestead, and from the allegations in the petition it is to be presumed that the homestead was founded upon community property and not upon the separate land of the vafe. No question is raised upon this point, and we shall assume that the homestead is community. The deed evidences a fully executed contract in so far as the conveyance of the title to the land is concerned, and contains no conditions expressly providing that the estate shall revert to the grantors or terminate in the event that the railway shall fail to perform its promises, which constituted the sole consideration for the deed.</p> <p>The deed read in evidence by defendant, and under which it claimed title, was made by appellees to the Chicago, Texas & Mexican Central Railway Company, April 16,1881, and recorded in the county of Dallas, April 23, 1881. This deed contained the following recital of consideration, viz.: “That for and in consideration of the enhanced value to be given and is contemplated to arise to our lands and other property by the location and construction of the Chicago, Texas & Mexican Central Railway, and for the consideration of full and complete value accruing to us by this transaction in locating and maintaining a station on the lands hereby granted, we,” etc.</p> <p>The testimony of a number of witnesses introduced by plaintiffs, and of which there was no contradiction, showed representations made to plaintiffs and others to the effect that the Chicago, Texas & Mexican Central Railway Company would not only erect its railway across the land, but would establish and maintain a passenger and freight depot thereon. These representations were made to the plaintiff Daniel Titterington, the railway company going so far as to plat a town or village on land adjacent to the right of way which had been contracted for with the plaintiff. No depot was ever built at the place indicated, and no attempt has ever been made to build one there. There is a switch, and trains stop when flagged, and freight cars are occasionally set out on the switch to be loaded or unloaded. There is no building and no station agent. The railway company went into possession of the strip of land in the spring of 1881, shortly after the grant, constructed its road thereon, and the same has been continuously since in its possession or the possession of the Gulf, Colorado & Santa Fe Railway Company, which is now operating the same. It was distinctly alleged in the petition of the plaintiffs, that the Chicago, Texas & Mexican Central Railway Company falsely and fraudulently represented to the plaintiffs before and at the time of the execution of the deed that said company would erect the depot, etc., as specified in the deed, and that these representations were made by said defendant for the sole purpose of cheating and deceiving the plaintiffs, and that the representations so falsely and deceitfully made did in fact deceive them and induce them to make said deed, otherwise they would not have executed it at all, etc. The defendant interposed the statutes of limitation of two, four, and five years.</p> <p>[This statement accompanied the opinion.]</p>

<p>1. Charge Upon. Facts as Constituting Negligence. — The general rule of law obtains in this State that the court is prohibited from charging the jury that certain facts do not constitute negligence. See example.</p> <p>S. Ringing Bell, etc., at Public Crossing of Railway Track. — The court has the right to instruct the jury that it is the duty of the operatives of the engine upon :a railway in approaching a public crossing to ring the bell or blow the whistle, but it is a charge upon the weight of evidence if it instructs them that the failure to perform or not the duty shall be given a certain effect.</p> <p>3. Charge — Facts.—Under the facts in this case (see opinion) it was not error to give the charge asked by the defendant railway, “That there is no evidence before the jury that the defendant placed the box cars on the sidetrack (which were shown to have obstructed the view of the injured party of the approaching train), and hence you can not charge the defendant with any negligence in that respect.” The line of box cars was on a sidetrack belonging to the Galveston Wharf Company, -which was also owner of the track upon which the colliding train approached.</p> <p>4. Presumption of Ownership. — Cases can be found in which it is held that the law presumes that the owners of a railway are operating it; but we know of no case that holds that the use of a railway track by a switch engine in a populous city is presumptive evidence that the owners of the engine own and operate the track and the approaching sidings.</p>

<p>Appeal from Dallas. Tried below before Hon. Anson Rainey, Judge of the Fortieth Judicial District.</p> <p>Ho statement is necessary.</p>

The facts are sufficiently stated in the opinion. Different branches of this suit have been in this court. See Peak v. Swindle, 68 Texas, 242; Grigsby v. Peak, Id., 235; Grigsby v. Peak, 57 Texas, 142; Caruth v. Grigsby, Id., 259; and Grigsby v. Caruth, Id., 269.

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

The following statement from brief of appellant is accepted by the appellees: This suit was brought by F. Umscheid against A. Scholz and the city of San Antonio, on the 27th day of August, 1885. Before the trial said Umscheid died, and his heirs were made parties plaintiff.

<p>1. Constitution — Sale of Public Land. — Section 4 of article 14 of the Constitution, “No certificate for land. Shall be sold at the Land Office except to actual settlers upon the same, and in lots not to exceed 160 acres,” relates exclusively to the sale of land certificates at the Land Office, and does not affect the validity of the act approved July 14, 1879, and amendment March 11, 1881, providing “for the sale of a portion of the unappropriated public lands of the State of Texas,” etc. Sales under this law are valid.</p> <p>3. Surveys of Public Land. — Actual surveys by which lands granted by the State shall he specifically described and distinguished have always been contemplated and prescribed by our statutes. Such surveys, however, have not always been regarded as indispensable.</p> <p>4. Excuse for Imperfect Survey. — That danger of hostile Indians prevented the surveyor from making surveys upon the ground will not be a reason for holding that a survey which is not one.</p> <p>5. Conflicting' Calls — Case in Judgment. — A surveyor having an imperfect knowledge of the course and meanders of a navigable river attempted to construct surveys without going upon the land, appropriating the land upon its south bank. The block of surveys began at a known point. The surveys were numbered 1 to 15S. Survey No. 1 began at the known corner and called for the river for north boundary. The east and west lines called to run north and south; the south lines east and west. Each succeeding survey called to begin at the northwest corner of the one below it, with like calls for sides and ends. From a bend in the river not known to the surveyor it was impossible to construct survey No. 109 of the series as called. Either the call for the river or for the connection of the surveys on each other had to be abandoned. The conclusion of the trial court is affirmed, that the block of surveys “must be located by running west from the northeast corner of No. 1, and tying each succeed ing survey to the one preceding it; and that the only way to do this is to cross the river at No. 109 and locate the succeeding sections” as called for. This mode of survey left unlocated the territory upon the south side of the river west of survey 109.</p> <p>6. Corrected Field ¡Notes — ¡Resurveys.—Subsequent to the withdrawal of the land from location the owner of the block of surveys sought to correct- the field notes of the surveys No. 109 to 158 by making other connections upon the south side of the river. Held, that as the attempted corrections included lands entirely different from that covered by the original surveys, and as the land had been withdrawn from location, said corrections had no effect- whatever.</p> <p>7. Trust — Facts Not Creating a Trust. — Parties locating land certificates for the owner on a fixed price having been paid for their locations on a contract made with a partner, do not sustain a fiduciary relation to the owners of the certificates so located as to estop them from making locations upon or buying from the State land which by their own mistake was not included and covered by the certificates so located.</p> <p>8. Warranty. — Suit for land against vendees of a- railway companyholding under its warranty. The land had been included in a deed of trust before sold. The railway was in the hands of receivers under proceedings in, the United States Circuit Court, where foreclosure proceedings also were pending in behalf of the trustees in the deed of trust. The defendants vouched the railway company in warranty and made the receiver and the trustees parties. Held, that judgment against the railway company on its warranty was valid, the land being recovered by plaintiffs. Decree against the receiver and the trustees, and in attempting to determine the order of payment in the matters pending in the United States Court, was unauthorized; as.to the receiver and trustees the judgment below is reversed and dismissed.</p>

<p>No statement is necessary.</p>

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

<p>No statement is necessary.</p>

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

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

<p>No statement is necessary.</p>

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

<p>1. Condemnation Proceedings — Notice Necessary. — • The proceeding to condemn land for public use is special in its character, and its validity must depend upon a compliance with the law authorizing it. Nothing is to be presumed in favor of the power of such a special tribunal, and it is incumbent in one seeking to show rights under its decree to show that the court had acquired jurisdiction to render it. Notice to the owner of the land sought to be condemned is necessary to jurisdiction, and this can not be presumed from declarations contained in the report of the commissioners, nor from recitals in the decree of condemnation, but must be proved.</p> <p>2. Notice of Condemnation Proceedings. — The Revised Statutes, articles 4186, 4187, 4188, 4189, 4190, prescribe the mode of service of notice where owner is unknown, and of the return or evidence of the service of the necessary notices. Until these provisions are complied with the commissioners have no authority to assess damages or to make a report, and the court has no jurisdiction to declare the condemnation.</p> <p>3. Right of Way — Report of Commissioners. — The commissioners in condemnation proceedings are required to make a report, wherein must be stated the amount of damages allowed the landowner, and they are required to return with this “all other papers connected with the case. ’ ’ But they are not judges of the sufficiency of notice.</p> <p>4. Description in Condemnation Proceedings. — The statute requires the applicant for condemnation of land “to state in writing the real estate and property sought to be condemned;” and if this be not done so as to identify the land to be taken, the jurisdiction never attaches. It is the right of the owner to know exactly the precise land taken, and the right of the party acquiring to know that which he has acquired.</p> <p>5. Same. — It was insufficient in description to condemn for right of way a tract 50 feet on each side of the center of the railway track through a described tract of land. The locality of the track through the land should have been noted.</p> <p>6. Innocent Purchaser. — Subsequent to condemnation proceedings taken against the owner of a tract of land through which a railway was surveyed, the land was sold. At date of the sale the condemnation proceedings had not been recorded in the county in which the land was situated. In litigation with the railway company the purchaser had the right to submit the issue of bona fide purchaser. This if proved would defeat the proceeding.</p>

<p>1. Pleading — Attachment on Debt not Due. — Where an attachment is sued out on a debt not due, and the petition and affidavit showed the facts, it is not necessary for the pleading or affidavit to contain an express assertion that the debt is not due.</p> <p>2. Amendment. — Where suit is brought upon a debt not due with an attachment, and upon the maturity an amendment is filed showing the facts, and that the debt is overdue, that the attachment is quashed is no ground for dismissing the suit.</p> <p>3. Second Attachment. — The first attachment not having been supported by a sufficient bond, it was competent to sue out a second writ supported by a statutory bond.</p> <p>4. Return of Attachment. —• The second attachment issued in term time was made returnable instanter, and was levied and so returned. This was no ground for quashing the attachment.</p>

<p>No statement is necessary.</p>

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

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

<p>1. Railway Company may by Contract Limit its Liability to its Own Line. — A railway company in a freight contract to a point beyond its own line may limit its liability to loss or injury caused .upon its own line. A freight contract that the carrier shall not he held or deemed liable beyond its own line excepting to protect the through rate of freight named, is legal and will be enforced by the courts.</p> <p>2. Same — Cases Adhered to. — Railway v. Baird, 75 Texas, 256; Harris v. Howe, 74 Texas, 537; Hunter v. Railway, 76 Texas, 195; Railway v. Williams, 77 Texas, 121; Railway v. Adams, 78 Texas, 372, adhered to.</p> <p>3. Same — Cases Discussed. — Railway v. Vaughn, 16 S. W. Rep., 775; Railway v. Allison, 59 Texas, 193; Stewart v. Merchants Dispatch Co., 47 Iowa, 229; Bank v. Adams Express Co., 93 U. S., 174; Miles v. Cottle, 6 Bing., 743; Myrick v. Railway, 107 U. S., 106, discussed and reviewed.</p>

<p>On the 8th day of May, 1888, W. H. Smith brought suit against the Western Union Telegraph Company to recover damages for alleged negligence in failing to deliver to him a telegram announcing the dangerous illness of his father. He alleges the telegram was sent on March 2,1888, by his brother, in his behalf and for his benefit; that it was not delivered till March 5, 1888; and that on account of failure to deliver the same he was prevented from being present during the last hours of his father’s life, and by reason of its delay he did not reach his father’s home till after his death. He asks damages, including the cost of the telegram, the expenses of his trip home, and mental suffering, in the sum of $5000. The defendant answered by general demurrer (which was not insisted on) and general denial, and on the trial the court instructed the jury to find a verdict for the defendant, and there was á judgment accordingly, from which this appeal is taken.</p> <p>The telegram was delivered in the first instance for - transmission to the agent of the Central Texas & Northwestern Bailway Company, at Waxahachie, which owned a telegraph line from that city to the town of Ennis, where Connection was made with the appellee’s line. The agent of the first named company received the sum of 50 cents as the charges for the entire transmission and delivery of the message to the appellant at the city of Dallas. He promptly transmitted the telegram to Ennis and delivered it to the appellee, and paid appellee one-half of the charges which had been paid him. The appellee accepted the telegram at Ennis for the purpose of transmitting it to its destination, at the city of Dallas.</p> <p>The witness Sharp testified on this subject, that he was, on the 2d day of March, 1888, a telegraph operator in the employ of the Central Texas & Northwestern Bail way Company’s telegraph at Waxahachie, Texas, and that on said day he received for transmission the following telegram:</p> <p>“Waxahachie, Texas, March 2, 1888".</p> <p>“ W. H. Smith, JfiO Harwood Street, Dallas, Texas:</p> <p>“Father dangerously ill. Come at once.</p> <p>“Wesley Smith.”</p> <p>Said telegram was written on one of the blanks of said Central Texas & Northwestern Railway Company’s telegraph,, and he sent said telegram to Ennis at once, and was notified by the operator of the Western Union Telegraph Company at that place that the telegram had been received at 2:59 o’clock p. m. on the 2d day of March, 1888; that he received as toll charges for sending said telegram to Dallas the sum of 50 cents; that by an agreement between the Central Texas & Northwestern Railway Company’s telegraph and the Western Union Telegraph Company the said Central Texas & Northwestern Railway Company kept only 25 cents of the amount charged for sending said telegram, and the Western Union received the remaining 25 cents; that it was the custom of the said two companies to divide all charges paid for telegrams sent from Waxahachie. The witness also stated, in substance, that in receiving the message he acted as the agent of the Central Texas & Rorthwestern Railway Company’s telegraph, and was not the agent of the defendant, and had no authority to act for it.</p> <p>It appears that the delay in transmitting and delivering the message to the appellant was due to the negligence of the appellee alone.</p> <p>The telegram contained several limitations upon the liability of the initial or receiving company, but none which restricted its liability to its own line and employes. As copied in the record, the terms of the contract do not provide, as is usually done, that the first company shall only be the agent of the sender in effecting the transmission of the message beyond the termination of its own line, or in contracting with the connecting or intermediate carrier. The appellee’s line extends from Ennis to Dallas, etc.</p> <p>[This statement accompanied the opinion.]</p>

<p>No statement is necessary.</p>

<p>1. Improvements — Good Faith- — Possession—A purchaser by Avarranty deed from a naked trespasser can not invoke the doctrine of possession in good faith when sued for the land, when slight inquiry would disclose the absence of title in his vendor. A purchaser in good faith should have some reason for his belief in the validity of the title; the reason may not he good, but there must he some ground for believing that it is.</p> <p>2. Immaterial Evidence. — Heirs of the owner of the land sued for its recovery. Touching the question of good faith possession by the defendants it was immaterial and in no way aided the defense that in an illegal administration the land had been sold and the sale avoided, the defendant in no way connecting himself with the proceedings.</p> <p>3. Bents as Damages in Trespass to Try Title. — In an action of trespass to try title it appeared that the defendant in possession had entered upon the land within less than two years from the filing of the petition. Held, that rents as damages can only he allowed from the time the defendant had taken possession.</p>

<p>No statement is necessary.</p>

<p>1. Survey — Footsteps of Surveyor. — In the application of the rule that “the footsteps of the surveyor upon the ground should be followed by whatsoever rule they may be traced, ” it is necessary that the actual survey (the footsteps) be found and identified to be traced before course and distance should be ignored.</p> <p>2. Identification of Line of Survey. — In an attempt to prove an actual line of a survey the witnesses did not agree upon its locality; the testimony to its location differed 54 varas. With reference to a line so uncertain the footsteps of the surveyor can not be said to have been traced.</p> <p>3. Actual Survey. — To extend a survey beyond its calls for course and distance, it is necessary to fix the line as that made or intended by the surveyor.</p> <p>4. Fact Case. — See facts held sufficient to identify a survey, and requiring the judgment ignoring it to be reversed and judgment here rendered upon the identification of the survey. It is not a case of conflict in evidence. See facts.</p>

<p>Error from Williamson. Tried below before Hon. A. 8. Walker.</p> <p>Ho statement is necessary.</p>

<p>1. Duty of Assignee to Protect Property. — After an assignee has accepted and taken possession of the estate assigned, it is his duty to protect the property assigned to him; and if it is unlawfully seized or damaged, it is his duty to take such steps as may he necessary to remedy the wrong. This applies to an unlawful seizure of the goods hy a creditor of the assignor under attachment.</p> <p>2. Wrongful Attachment — Case in Judgment. — A firm engaged in the mercantile business made an assignment for benefit of accepting creditors. One creditor firm sued out an attachment, upon the ground “that defendants have disposed of their property with intent to defraud their creditors.” Under the attachment part of the goods were taken from possession of the assignee and sold — sale for less than value. Suit by the assigning debtors against the plaintiffs in attachment for wrongfully suing out the attachment, for causing sacrifice of the assigned stock, destroying or injuring the credit and financial standing of the assignors as merchants. Held:</p> <p>1. That action for damages caused by the wrongful and malicious attachment after the assignment vested in the assignee, and damages could only be recovered by him.</p> <p>2. In view of the assignment as insolvents for benefit of their creditors, the claim for damages for injury to their commercial standing must be considered as speculative and no cause of action.</p> <p>3. The petition is insufficient as an action for slander; such action should have been formulated in a count complete in itself.</p>

<p>1. Counties not Liable for Defective Bridges. — A county is not liable for injuries caused by a defective bridge. Such liability does not exist at common law or by statute.</p> <p>3. Counties as Corporations.- — Counties are not corporations in the fullest sense of that term. They are commonly called quasi corporations. They are created by the State tor the purpose of government. Their functions are political and administrative, and their powers are rather duties imposed than privileges granted.</p>

<p>1. Injunction Bond — Liability of Sureties. — The liability of sureties is matter of strict law and can not be extended by implication or intendment. In a suit praying for an injunction and for a receiver, an injunction bond was executed.. A receiver was appointed, who also executed bond, took and sold the property in litigation. The injunction was dissolved, and proceeds, less expenses of receivership, were turned over to the defendant in the injunction suit, who was a trustee created by a debtor in a conveyance to secure certain creditors. The trustee brought suit against the plaintiffs in the injunction suit and their sureties, in another county and in which some of the defendants resided, for damages from the sacrifice of the property in the sale thereof by the receiver. Held, that the liability of the sureties upon the injunction bond did not extend to damages from the acts or omissions of the receiver.</p> <p>2. Venue. — Suit for damages upon an injunction bond may be brought in a county in which reside one or more of the defendants, although it be in a county other than that in which the injunction suit was tried.</p> <p>3. Description — Pleading—Specific Items.- — In suit for damages for the wrongful seizure and sale of certain goods which were described as follows: “All of his (G-umport’s) stock of wines, whiskies, cigars, fixtures, etc., situated in his saloon; * * also, all of his wines and whiskies situated in the Thompson warehouse in said town of Clarksville, together with his unexpired State and county liquor license.” On exceptions, held, the property was evidently capable of a particular specification; and the exceptions for absence of sufficient description should have been sustained.</p>

<p>1. Town, Not Necessarily Incorporated. — To constitute an aggregation of houses contiguous and inhabited a town, it is not necessary that it be incorporated.</p> <p>2. Homestead. — One residing in a rural home can not have an urban place of business protected from forced sale as part of his homestead. See facts.</p> <p>3. Town of San Saba. — See charge held to correctly describe what constitutes the town of San Saba, as applied to the evidence.</p> <p>4. Business Place in Town. — See facts sustaining a verdict, had it been found upon the issue whether the lot in controversy was the place of business of its owner, and against his claim thereto as his place of business.</p>

<p>Public School Law — Control by Local Trustees. — Article 3715, Revised Statutes, charges the Superintendent of Public Instruction “with the administration of the school law and a general superintendency of the business relating to the public schools of the State,” and directs, that “he shall hear and determine all appeals from the rulings and decisions of subordinate school officers, and all such officers and teachers shall conform to his decisions unless they arj reversed by the State Board of Education.” Appeals are allowed from the rulings of the State Superintendent to the State Board of Education. Rev. Stats., art. 3714. Suit by injunction by local taxpayers against a local board of trustees and the teacher on alleged ground that a sectarian school was being supported at the public expense can not be entertained in the District Court until after appeal as provided and as above stated.</p>

<p>1. Practice — Foreclosure of Mortgage. — Suit by Bateman Bros, against J. O. Pool, Chenoweth and his wife Lizzie (late Lizzie Pool), and her tenant Bivens, to foreclose a mortgage alleged to have been executed by 11 Lizzie Pool, per J. O. Pool, agent, ’ ’ and subsequently signed by her in person. The petition did not charge that the mortgage was executed by J. O. Pool for himself, or that the property belonged to him, nor any fact calculated to bind him as a maker of the mortgage. Held, that independently of the facts whether the land belonged to Mrs. Chenoweth or to J. O. Pool, under the pleadings no judgment of foreclosure could properly be entered against the defendant J. O. Pool.</p> <p>2. Homestead — Deed of Trust by Widower. — A deed of trust executed by a head of a family, consisting of himself and his minor children (his wife being dead), would not be void upon his homestead.</p> <p>3. Default Judgment. — Judgment by default appears in the record. Subsequently defenses were filed, the default not being set aside. Held, the judgment by default should have been made final.</p>

<p>1. Bounty Land Warrants — Community Property. — Bounty land warrants granted under section 10 of the Ordinance of December 5, 1835, offering bounties for volunteer service, are acquired by onerous title, and are community property if granted to a married man.</p> <p>2. Community Property — Statute. — The statute provides (Pasch. Dig., art. 4638; Rev. Stats., art. 2853), that “all of the effects which the husband and wife may possess at the time the marriage may be dissolved shall be regarded as common effects or gains unless the contrary be satisfactorily proved.” Upon the death of the husband, therefore, all property held by him belongs one-half to his widow and one-half to his children unless otherwise shown.</p> <p>3. Presumption of Regularity of Marriage. — Every intendment of law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular and whatever the form of the proofs, the law raises the presumption of its legality — casting the burden of proof that it is illegal and void upon the party objecting, and requiring him throughout and in every particular plainly to make the fact appear against the constant pressure of the presumption of its validity.</p> <p>4. Case in Judgment — Presumption.—Dow, residing in Alabama, married and had three children. He left there and came to Texas as early as 1833. He married again in Texas — date not shown. He served three months as a volunteer in the Texas Army in 1836, for which service a bounty of 320 acres was granted. He died in 1838, 1$39, or 1840 — his second wife surviving, as also a daughter of the marriage. After the widow’s death'the daughter sold the land located under her father’s bounty warrant. Suit was brought for the land against her vendee by the three children of the first marriage. It did not appear when the first wife died, or that they had been divorced. It did appear that she married again in Alabama and bore three or four children to her second husband. Held:</p> <p>1. In support of the legality of Dow’s marriage in Texas it will be presumed that his first wife was dead or had been divorced before such marriage.</p> <p>2. The land was community property, it not being shown otherwise, and at his death it belonged one-half to his widow and the other half among his four children.</p> <p>3. The defendant claiming under the daughter of the second marriage owns five-eighths of the land; the three plaintiffs each own one-eighth.</p> <p>5. Practice in Supreme Court. — In the trial court two daughters of the first 1 marriage recovered one-half of the land, their brother nothing, and the defendant one-half. The brother appealed, making appeal bond only to the defendant. The defendant, although receiving less than its vendor was entitled to, did not complain. The appellant showed that he was entitled to one-eighth of the land, and his sisters had recovered more than they owned. Meld, that not having made his coplaintiffs parties in the appeal, the appellant could not have remedy against the defendant for the land improperly adjudged the plaintiffs.</p>

<p>No statement is necessary.</p>

<p>1. Property of City Subject to Execution. — A house and lot used as residence property received by the city in settlement with its tax collector in settlement for taxes by him collected and not paid over, and not used by the city for any public purpose, is not exempt from execution under the provisions of section 9 of article 12 of the Constitution, or of any statute exempting property used and held only for public purposes.</p> <p>2. Special Funds. — The city of Sherman, incorporated under the general law, had the power to levy and collect a tax to pay interest and sinking fund upon outstanding city bonds issued in aid of the construction of certain railways. The city made such levy, and the city collector made collections. Failing to pay the special fund so collected, the city took from the collector certain residence city property in compromise for the funds. Meld, that the property took the place of the fund, and that as the fund could not be diverted to another purpose than that for which it was collected, so a general creditor of the city could not appropriate it by a levy and sale thereof.</p> <p>3. Same. — That the city had appropriated to current expenses the rents received from property taken in compromise for a special fund collected by the city tax collector, would not subject the property to execution in favor of a general creditor of the city.</p>

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

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

<p>Police Powers of Cities — City Officers. — Action for damages for alleged injuries inflicted upon plaintiff by a city policeman in shooting at an unmuzzled dog, in the attempted enforcement of a city ordinance forbidding dogs to run at large. Held, that the enactment of the ordinance was an exercise by the city of its police power. The officer whose act is complained of was not a mere servant of the city, but was a policeman engaged in the enforcement of an ordinance of the city. In such case the maxim respondeat superior does not apply, and the city was not liable. The demurrer to the petition was therefore properly sustained.</p>

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

<p>No statement is necessary.</p>

This suit was originally brought by S. E. Greiner, the wife of J. F. Greiner, against the Paris & Great northern Railway Company, the St. Louis & San Francisco Railway Company, the Gulf, Colorado & Santa Fe Railway Company, S. J. Wright, and Alexander Douglas, to recover certain real estate in the city of Paris, alleging that the husband J. F. Greiner had conveyed part of the land to A. L. McMurry, part of it to S. J. Wright, and part of it to B. F. Spaulding, and that…

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

<p>1. Homestead — Abandonment—Cases Adhered to. — Wynne v. Hudson, 66 Texas, 1; Shryock v. Latimer, 57 Texas, 674; Bowman v. Watson, 66 Texas, 295, discussed and adhered to, touching abandonment of part of homestead and subjecting same to liability to levy and sale.</p> <p>2. Homestead — Temporary Lease — Fact Case. — Kornrumpf was head of a family and owned two adjacent town lots. Upon them was his residence and necessary outhouses. He carried on a saloon and in the business he occupied a house covering part of one of the lots. His health failing he was compelled to suspend the saloon business. He leased the saloon building first for one year and subsequently by ■the month. He never entered into any other business, and testified to his intent to resume business in his saloon building when physically able to do so. It however appeared that he did not have money or credit to buy a stock. The other parts of the lots not covered by the saloon building were continuously used in connection with the residence. Held, that the testimony was sufficient to support a verdict sustaining the homestead rights in the saloon building. See facts.</p>

<p>Error from Cooke. Tried below before Hon. E. E. Pineb.</p> <p>Ho statement is necessary.</p>

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

<p>X. Consideration for Release of Lien. — A payment before maturity on a part of several vendor lien notes is a consideration sufficient to support a contract to release the lien for the balance unpaid.</p> <p>2. Novation. — Suit for land or in alternative to foreclose vendor’s lien notes upon it. The defendant answered, that subsequent to the making of the notes and before</p> <p>two of them were due the parties had made a new contract, by which upon defendant’s delivering 100 head of cattle and paying $500 in money (the principal of the four notes), the lien was to be released and the plaintiffs to take the unsecured verbal promise of the vendees for the interest unpaid. The facts in evidence were sufficient to sustain a verdict that such new contract had been made, and that its terms had been complied with by the defendants. Held, that a charge submitting the agreement and performance as a defense was properly given by the court.</p> <p>3. Evidence — Release.—A release signed and acknowledged releasing the notes and lien declared on by the plaintiff when offered in evidence was objected to on the ground that it had not been delivered. The testimony being conflicting as to its delivery or nondelivery, the court did.not err in permitting it to be read to the jury; the jury being instructed as to effect, whether delivered or not.</p> <p>4. Executed Contract.: — The contract for release of the lien upon agreed payment, upon such payments being made would operate as a release of the lien. Such being the law, the execution or the delivery of a written release became immaterial.</p> <p>5. Self-Serving Declarations. — The plaintiff who had signed and acknowledged a release of the lien he was seeking to enforce proposed proving, in order to avoid the effect thereof and to show that it had not been delivered, that in absence of the defendants he had caused the notary to note upon his record certain material conditions to its delivery. These declarations were self-serving, and were properly excluded.</p> <p>6. Immaterial Error. — Where the jury found for the defense upon an answer defeating the notes and lien alleged by plaintiff as his cause of action, it became immaterial that a charge was refused directing the jury as to the mode of ascertaining how the amount due the plaintiff should be.ascertained in event they found for him.</p> <p>7. Charge — Properly Refused. — The plaintiff requested a charge that recitals of payment, etc., in a release in evidence were not conclusive. The only question made on the trial touching the release was whether it had been delivered. Held, such charge was properly refused.</p> <p>8. Practice.- — Plaintiff’s cause of action was upon vendor’s lien notes described. Defendants alleged a discharge of the notes and lien by a new executed contract. The plaintiffs denied the existence of any agreement consummated whereby the original cause of action would be avoided. Such being the issues, it was proper for the court-to limit the right to recovery by plaintiff to the notes and original lien. It was proper to refuse a charge allowing a recovery upon the new contract repudiated by him.</p>

<p>1. Cause of Action — Failure to Transmit Telegram. — Plaintiffs resided at Van Alstyne, Grayson County, Texas, and owned and operated a threshing machine. They employed an agent at Vernon, in Wilbarger County, Texas, to solicit business. The agent engaged threshing, and telegraphed by the line of the defendant company to his principals at Van Alstyne, addressed to A. J. McKinney, one of them, as follows: “Have thirty thousand bushels for you if you can come at once. Is followed, by letter.” This dispatch was received. The plaintiffs immediately shipped their machinery for Vernon, and delivered to the agent of the defendant telegraph company for transmission and directed to their agent at Vernon the message: “Will ship machinery at once. Do they furnish fuel? Answer. [Signed] Joe A. McKinney.” This message was not delivered. Plaintiffs proceeded to Vernon and threshed such grain as they could procure. Many with whom the agent had made engagements, not hearing of the acceptance of their offer, made other contracts for threshing. These facts being alleged and proved, judgment for damages was rendered against the telegraph company. On appeal, held:</p> <p>1. The implied condition that the parties should have an assurance of the acceptance of their offer was prevented by the failure of the telegraph company to deliver the dispatch conveying such acceptance.</p> <p>2. The grain growers expecting an immediate answer to their offer were released by the failure to accept, which failure was caused by the failure to transmit the message.</p> <p>3. The facts gave right of action against the telegraph company.</p> <p>2. Practice — Amendment after Announcement. — Suit for damages against a telegraph company for failure to deliver a message. The dispatch was described in petition as having been sent by R. L. Bowen & Co. Trial was had before the court without a jury. The message was produced by the defendant on the trial, and was offered by the plaintiffs. It was signed by “Joe A. McKinney,” one of the plaintiffs. The defendant objected on account of variance. The court sustained the objection, and upon application of plaintiffs permitted them to amend their petition so as to describe the telegram correctly. The defendant excepted. No application for continuance was made by defendant. Held, the court did not err in its action.</p> <p>3. Damages — Matters Contemplated in Contract. — The agent of the telegraph company receiving the dispatch which was not delivered knew that the senders were engaged in the business of threshing grain. To such agent the message sent and its answer would convey notice that they were negotiations concerning threshing grain, and loss of contracts pending would naturally be contemplated as relating to the correspondence.</p>

<p>Appeal from Archer. Tried below before Hon. P. M. Stine.</p> <p>Ho statement is necessary.</p>

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

<p>1. Fees of County Treasurer — County Scrip. — A county treasurer is not entitled to commissions on county scrip received by Mm from the tax collector in payment of county taxes and by Mm turned over to Ms successor. Such scrip should be reported to the County Commissioners Court for cancellation, for which reporting no fee is allowed.</p> <p>2. Same — Court House and Jail Bonds. — Nor is the county treasurer entitled to commissions as upon money disbursed upon court house or jail bonds executed by the county and delivered in payment for such buildings.</p> <p>3. County Treasurer. — The county treasurer is the custodian of the funds of the county. The County Commissioners Court had no authority to direct that the county treasurer deposit the county funds in any named bank. Nor would such order when executed and the funds lost by the failure of the bank, protect the treasurer. Nor would an order of such Commissioners Court relieving the treasurer from liability have the effect of satisfying the obligation of the treasurer and his sureties for the county funds received by him.</p> <p>4. Limitation — Suit on Bond of County Treasurer. — In an action against the county treasurer and his sureties for county funds withheld by him, the suit being upon the bond, limitation of four years applies — limitation from the date of each conversion. See facts.</p> <p>5. Case Limited. — Wharton County v. Ahldag, ante, p. 12, limited, and held that the question as to right to commissions on county scrip taken in payment of taxes was not involved.</p>

<p>Error from Hamilton. Tried below before Hon. T. L. Nugent.</p> <p>No statement is necessary.</p>

<p>Appeal from Wheeler. Tried below before Hon. Frank Willis.</p> <p>Ho statement is necessary.</p>

<p>1. School Lands — Grazing Lands — Constitution.—Section 4 of article 7 of the "State Constitution prescribes, that lands “set apart to the public free school fund shall be sold under such regulations and at such times and on such terms as may be prescribed by law.” The Act of 1887 provided that grazing lands leased tor five years should be withdrawn from sale until the expiration of such lease. Held, that the Legislature could lawfully withdraw from sale for a time such lands and allow them leased during the interval or permit them to be leased and protect them from sale during the lease, at least for the term of five years. Said act was constitutional.</p> <p>2. Classification. — Under the Act of 1887 it was not necessary to the validity of a lease of grazing lands that they should be classified, as was provided in case of sales. Act of 1887, sees. 4, 5.</p> <p>3. Lease of School Land — Demand for Actual Settlement. — The action of the Commissioner of the General Land Office in making a lease is conclusive of the question of non-demand for the land for actual settlement.</p> <p>4. Actual Settler. — See facts held sufficient to show that appellant was not an actual settler upon the land claimed, on July 5, 1887, when the act under which he claimed rights as such settler went into effect.</p>

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

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

<p>Appeal from Bexar. Tried below before Hon. Gf. H. Hoonan.</p> <p>Ho statement is necessary.</p>

<p>Citation to Warrantor. —At instance of defendants in an action to try title and for partition their warrantor was made party. Citation was issued to the warrantor to another county. The return of the sheriff showed service “by delivering to the defendant (the warrantor) in person a true copy of this writ, together with the accompanying certified copy of plaintiff’s original petition.” By supplemental petition plaintiffs included in their suit another tract of land, and upon trial judgment by default against the warrantor was rendered for the plaintiffs for such other tract; and on writ of error, held:</p> <p>1. The sheriff’s return must be treated as true. If it was incorrect, it should have been amended.</p> <p>2. No judgment by default could have been properly rendered against the warrantor for a cause of action pleaded either before or after he was served with citation, of which notice was not given by the service of process.</p>

<p>1. Disclaimer— Effect of Pleading Not Guilty and a Disclaimer. — Under our system which permits the pleading of inconsistent defenses the general issue will put the plaintiff upon proof of all the facts necessary to make out his case, although one or more of them be admitted in a special answer. But a disclaimer as it is known in equity pleading is not deemed an answer, and it is certainly not a defensive plea. It is an admission upon the record of the plaintiff’s right, and a denial of the assertion of title on the part of the defendant. If, therefore, a defendant in the action of trespass to try title should plead not guilty and at the same time file a disclaimer as to the entire tract of land sued for, it would seem that the plea should be disregarded and plaintiff should have judgment for the land.</p> <p>3. Same. — Action in trespass to try title. The defendant disclaimed as to all the land sued for except such, if any, included within a named survey, and also pleaded not guilty. Held, the issue was as to the title of the land described in the disclaimer.</p> <p>3. Disclaimer. — Such plea should describe the land, if any, to which the disclaimer does not extend. See defective disclaimer.</p> <p>4. Costs. — Where on disclaimer save as to part of the land sued for the defendant on his disclaimer recovers any part of the -land in controversy, he is entitled to his costs.</p>

<p>Actual Survey-Maps — Description.—A two leagues survey of school lands belonging to Falls County was surveyed and subdivided into small tracts. A map of the subdivisions was prepared and placed on record, by which sales were made; the subdivisions were sold by the numbers upon the map. By mistake the surveyor-marked the north line of the two leagues tract 186 varas too far south. Fractional section No. 7, of 167 acres, appeared on the map to be in the northeast corner of the survey. Smith bought this fractional section, described as “fractional section No. 7 as appears upon the map upon record,” etc., in ignorance of the mistake. After ascertaining the mistake, he brought suit, claiming the strip between the actual surveyed line and the true line. Held, that having bought and intended to buy fractional lot No. 7, that was located just where placed by the actual surveys with reference to which and by which the subdivisions were made and platted, he took only to the actual surveyed north line.</p>

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

<p>1. Reregistration upon Destruction of Record Books, etc. — After four years from the destruction', etc., of the records of a county, the registry of a deed in the hooks so destroyed ceases to be notice unless such deed be recorded again within four years from such destruction, etc. Rev. Stats, art. 4292.</p> <p>2. Same — Case in Judgment. — In 1847 the patentee conveyed the land in controversy to ancestor of appellee. The land is in McLennan County, then in Milam County, where the deed was recorded in same year. In 1876 the records of Milam County were destroyed by fire. The land was in McLennan County upon its organi- ■ zation. The deed was recorded in 1888 in McLennan County. In 1882 Barcus for value and without notice bought the land from the heirs of the original grantee. Held, that his title was good against the first deed.</p>

<p>1. Survey Outside of the Surveyor’s District. — In 1876 the railway company had a block of surveys made by the surveyor of Bexar Land District. The block extended into Kinney County, then organized. The field notes with certificates were returned to the Land Office. In 1877 Cornell located upon the land in Kinney County. Survey was made and patent issued October, 1878. Patent was issued in 1887 upon the survey for the railway company. In contest between the two titles, held, that the junior survey made in Kinney County with patent conveyed the land, unaffected by the survey in Bexar Land District; and this although the line between Kinney County and the Bexar Land District had not been established. It did not appear that the survey for the railway company was made by mistake.</p> <p>2. Limitation. — Location in 1877; patent in 1878; patent recorded October, 1878; adverse possession from 1877 under the location and patent until April 11,1888, when suit was brought claiming under an older survey. Held, that title by limitation in the defendant operated as a defense.</p> <p>3. Practice in District Court — Charge.—It has been repeatedly held that where there is no conflict in the evidence the court may assume a fact thus established as proved in cases in which hut one conclusion could he reached from the evidence.</p>

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

<p>1. Deputy Clerk — Special. — The certificate of a deputy clerk taking an acknowledgment was signed by him as “special deputy.” It being regular in all other respects, the word special was surplusage. The law defines the duties of a deputy clerk.</p> <p>2. Privy Acknowledgment — Comparison of Statutes. — The form of certificate of a married woman’s acknowledgment as prescribed in the Act of 1846 is similar to that prescribed in the Revised Statutes, article 4313. It was required that the certificate should show that she acknowledged the instrument to be “her act and deed,” and that she had “willingly signed, sealed, and delivered the same, and that she wished not to retract it.” Where the certificate of the officer omitted to state that she acknowledged the instrument to be “her act and deed,” hut showed that she had “willingly signed it and wished not to retract it,” it was held to be sufficient.</p> <p>3. District Clerk. — In 1872 the district clerk and his deputies could take acknowledgments to deeds for record.</p> <p>4. Case in Judgment — Deputy Clerk. — May 18,1872, a district clerk appointed a special deputy to take the acknowledgment of a man and wife to a deed to one Miller. In August, 1872, the district clerk requested the deputy to take the acknowledgment of the same vendors to another vendee, assuring the deputy that he would fix up the proper appointment, etc. The deputy took the acknowledgment. No other deputation was made, ffeld, that the deputy was certainly a de facto officer, if not an officer de jure.</p>

<p>1. Voluntary Sale of Homestead. — The voluntary sale of a homestead subjects the proceeds of such sale to legal process if not otherwise exempt.</p> <p>2. Unprobated Will. — A will is not competent as evidence unless probated in the County Court and within the time prescribed by law. Ochoa v. Miller, 59 Texas, 461.</p> <p>3. Practice — Controverting Answer of Garnishee. — Where a garnishee admits the possession of assets, but controverts their liability to the process, it is unnecessary that the plaintiff by affidavit controvert the answer in order to raise the question whether the assets are liable for the debt of the plaintiff.</p> <p>4. Negotiable Paper — Garnishment.—When the writ of garnishmentwas served the garnishee had in his possession a check drawn in his name and by him indorsed to the defendant. The check had been obtained by garnishee as mode of payment to defendant of proceeds of a sale of land made by him. Held, that the facts did not show a payment by him, and that such interest as the defendant had in the check (proceeds of the sale) was subject to the proceedings.</p> <p>5. Costs — Garnishee Litigating. — Where the garnishee by his answer becomes a litigant instead of merely disclosing the facts, he is not entitled to an attorney fee for making the answer.</p>

<p>Refusal by Party to Suit to Answer Interrogatories. — Article 2243, Revised Statutes, prescribes, that “if the party interrogated refuse to answer, the officer executing the commission shall certify such refusal, and any interrogatory which the party refuses to answer, or to which he answers evasively, shall be taken as confessed.” We do not think that this statute under a fair interpretation contemplates an immediate compliance, on pain of being recusant. The request that he have time to consult his attorney, with an offer the next day to answer, followed by a willingness to answer upon the trial, were reasons which required that the certificate of the officer of refusal should have been set aside, as well as the order taking the interrogatories as confessed.</p>

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

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

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

<p>1. Attack Upon City Ordinance for Fraud. —Testimony was offered tending to show that an ordinance of the city council had been obtained upon misrepresentations made by the beneficiaries of the ordinance. The testimony was excluded, as was a charge refused presenting the issue whether the ordinance had been obtained by such misrepresentations. Held, it must be conclusively presumed that the ordinance expresses the purpose of the city in adopting it. Its language, and not the representations made to obtain it, must be looked to for its meaning and application. It was not insisted that by mistake, fraud, or otherwise the ordinance was expressed in language not intended to be used.</p> <p>2. Suburban and Belt Railways. — Article 4278 of the Revised Statutes as originally enacted did not apply to urban, suburban, and belt railways. As amended April 8, 1889 (Gen. Laws 1889, p. 21), it applies to all railways.</p> <p>3. Same.- — Under article 4278 of the Revised Statutes as amended, urban, etc., railway companies are required within twelve months from the date of their charters to-complete a portion of their road and commence and continue the running of cars thereon. No self-executing condition of forfeiture is imposed upon such railways.</p> <p>4. Same — Forfeiture.—While a self-executing forfeiture of the charter rights of urban, suburban, and belt railways is not provided for, still they are subject to the laws, and courts may annul their charters for failure to observe the requirements of the law and to discharge their duty to the public. Until such judicial forfeiture the charters remain, although subject to forfeiture proceedings.</p> <p>5. City Ordinance — License to Railway to Occupy Streets. — An ordinance of the city of Houston granted to the plaintiff (appellee) the right to construct and operate a railway upon certain named streets. In the ordinance it was prescribed: “So much of said railroad as extends * * * shall be completed within one year from date, and the balance of said road shall be completed within two years. And so much of said right of way as may not be occupied by said company within said time shall be considered as abandoned.” Held, that under this clause, upon failure to occupy, etc., within the specified time, the railway company forfeited its rights beyond that so occupied, and no further; i. e., the forfeiture did not extend to the completed work.</p> <p>6. Occupied — Completed.—The extent to which the streets were occupied by the railway company was a fact for the jury; it was improper for the court, to charge the jury that such occupancy existed “if the ties were laid and the rails placed and spiked thereon.”</p> <p>7. Construction of City Ordinance. —The grant by the city of Houston to the appellee of license to occupy certain streets prescribed, “that said company may construct said railway so as to be operated by electricity, or such other power as will not necessarily obstruct the use of the streets by the public.” Touching the right of the company to use steam, the city offered to prove that the use of steam upon certain of the streets in the line of the railway would interfere with the use thereof, and would be a public nuisance. This testimony was excluded. The court instructed the jury that “in this State railways generally use steam as a motive power. Under the ordinance plaintiff is not precluded from using steam, but might, if it desired, use electricity or other motive power known. It had the right to use steam if it desired.” Held, That whether the use of steam would necessarily obstruct the use of the streets by the public was a fact to be found by the jury. It was error to exclude the testimony and to give the charge.</p> <p>8. General or Abstract Charge. — A charge abstractly right and upon the general subject of controversy is not always proper to be given. The charge should apply to the case made in the pleadings and the evidence. See example.</p> <p>9. License by City to Street Railway Company. — That the street railway company under its license from the city had made large expenditures is not of itself a reason that its time for completing the road as limited by the city authorities should be extended.</p> <p>10. Switches and Turnouts. — The grant of the right to construct the street railway carries with it as an incident the right to construct such turnouts and switches as may be necessary for the successful operation of the road. But until the city council has refused permission to put in additional switches the District Court has no authority to act by injunction. The right of the city to be consulted about the situation and construction of the sidetracks, etc., is of equal dignity with the right of the railway company to construct them, and until it be shown that the city has waived its privilege or declined to act the railway company is not entitled to the writ of injunction to control the action of the city in that respect.</p> <p>11. Repeal of Ordinance Granting Right to Use Streets. — The city by its repealing ordinance involved the right of the railway company to continue its work of construction in so much doubt as to justify the discontinuance of the work until the effect of the ordinance should be judicially determined; and the time intervening between the passage of that ordinance and the final determination in favor of the right of the railway to continue its work should not be estimated against it.</p>

<p>1. Cases Discussed and Limited. — Foster v. Powers, 64 Texas, 247; Ufford v. Wells, 52 Texas, 617; and Cattle Company v. Boon, 73 Texas, 548, do not deny to a subvendee not made a party to a foreclosure proceeding the right to pay for the land, and thus obtain title to it, whether the purchaser under the foreclosure be the original vendor or some other person; if the equities of the subvendee are such as to entitle him to relief under the general rules of equity applicable to the rights of vendor and vendee.</p> <p>2. Right of Subvendee to Redeem — Practice. — It matters not whether the relief be sought by a subvendee by a suit against the purchaser under a foreclosure decree to which he was not made a party, practically to enforce the right of redemption, or to establish his right to pay for and have the land, or be set up and claimed by him in an action by the purchaser to recover the land; and when setup in either manner such equities will be enforced in all proper cases.</p> <p>3. Case in Judgment. — Pierce, a subvendee of land subject to the vendor’s lien, brought suit against the purchasers of the land under foreclosure proceedings in which he was not made a party, although his deed- was on record and he in possession. Suit was brought promptly and tender made of the amount of the foreclosure sale, with offer to pay further as the court should adjudge. Held, that the plaintiff had the right to redeem the land and was entitled to decree in his favor.</p>

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

<p>No statement is necessary.</p>

<p>1. Sureties Discharged by Alteration of Contract. — Between the creditor and the sureties on a contract is a privity out of which springs an obligation on part of the former that he will not extend or affect the liability of the surety beyond the terms of the contract. Where the principal debtor and the creditor without consent of the surety enter into a valid agreement by which in a material sense the original contract is altered, with intent to change its effect, and with knowledge at the time on the part of the creditor of the existence of the relation of principal and surety, the latter is discharged.</p> <p>2. Same — Case in Judgment. —Cummings contracted with Murray, principal, and Clark & Herring, sureties, November, 1887, by which Murray was to sell and deliver to Cummings 300 head of steers one year old in June, 1887, at §5.50 per head, of which §800 was advanced and balance to be paid on delivery of the cattle, which delivery to be on or before January 1, 1888. In January, 1888, Cummings and Murray without consent of the sureties further contracted as follows: Cummings advanced Murray §400 more and fixed the price of the cattle at §4.25 per head, delivery to be in the spring of 1888. Murray failed in part, and in suit against him and his sureties on the contract, held, that the new contract made in January was a material alteration, and more onerous than the original, and that the sureties were released.</p>

<p>1. Recitals in Deeds — Pedigree.—For the purpose of identification recitals in deeds are admissible as original evidence when including facts of birth, marriage, and death. In this case the recital concerning the land certificate conveyed, that ‘ ‘ the said certificate is known to be the headright of August Auerbach, first husband of Louisa Hammer,” was competent evidence to prove that the maker of the deed Laura was the widow of Auerbach, and also that Andres Hammer, who joined with her in the deed, was the same person known sometimes as Antone Hammer, and by which name he married said Laura.</p> <p>2. Community Property — Widow Loses Control After Second Marriage.— Davis v. McCartney, 64 Texas, 588, adhered to, that the power of the surviving wife, ceases with her widowhood as well with reference to the equitable as the legal title to the community property. Her deed to community property executed after her marriage only affects her own interest; it is void as to her first husband’s heirs.</p> <p>3. Hensel v. Kegans, 79 Texas, 347, adhered to, touching presumption of community debts to sustain a deed by surviving partner from lapse of time, absence of claim, possession, etc.</p>

<p>1. Probate Sale — Void and Voidable. — Plaintiff as heir sued in trespass to try title, alleging the facts relied upon to avoid the title of the defendant, which title was through administration sale. It was alleged, that the grantee of the certificate under which the land was patented died in 1842; that Patton administered on the estate in 1849; that he obtained an order to sell the land to pay the debts of the estate; that he reported the sale at March term, 1849, which was confirmed by the court; that on April 5, 1849, he executed a deed for the land to one Massey, the purchaser, for $96, who on same day reconveyed to Patton for same consideration; that there was no statement of expenses or of claims shown with the application for order of sale; that there were no debts due by the estate, and no necessity for the sale; that the sale was fraudulently made with intent by the administrator that he should become the purchaser; and that the defendant had constructive notice that the sale was fraudulent. Suit was brought for the land, and to set aside the alleged fraudulent sale, on June 6,1887. The defendant demurred, insisting upon limitation of ten years. Meld, that the demurrer was properly sustained.</p> <p>2. Cases Adhered to. — Kleinecke v. Woodward, 42 Texas, 314; Murchison v. White, 54 Texas, 86; Gillenwaters v. Scott, 62 Texas, 673, adhered to.</p> <p>3. Tacking Disabilities — Limitation. — See facts held insufficient to suspend the statute of limitations. The facts relied upon by the plaintiff to avoid the statute could prevail only by tacking disabilities. Latimer v. White, 12 Texas, 61; Rev. Stats., art. 3225.</p>

<p>Fact Case — Evidence of Extent of Agency. — An agent of a creditor presented an account. Upon it were items which had been a subject of correspondence, the creditor firm insisting upon payment, the debtor firm refusing. The debtor firm requested the agent to strike from the account the disputed items. This the agent did, making settlement for the balance which was undisputed, and he executed a receipt in full. The machinery, payment for which was contested, was then at the railway depot, and the debtors and the agent went to the depot and the agent informed the keepers of the depot that he had taken back the machinery. The creditor firm at once repudiated the settlement made by the agent; the agent in fact had no power to take back the machinery. This settlement was the only transaction the agent ever had with the debtor firm. Held, that it was the duty of the debtor firm to ascertain the extent of the power of the agent with whom they dealt; his presenting himself as agent and his declarations to that effect was no evidence of the fact; power to collect did not involve power to compromise or to remit any part of the debt; and the settlement by the agent against his instructions did not bind his principals.</p>

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

<p>1. Idem Sonans. — Hieronymus and Heronymus may be considered idem sonans.</p> <p>3. Same — Identity. — Suit for 320 acres of land patented to William Heronymus, under bounty warrant in same name. Plaintiffs sued as heirs of William Hieronymus, proved to have been in Texas and died in 1836, a single man. Held, that plaintiffs were entitled to recover.,</p> <p>3. Limitation of Ten Years. — The defendants had been in adverse possession from January, 1870, until suit was instituted for the land May 23,1888. They claimed under a quitclaim to the bounty warrant which they had located upon the land in 1870. Held, as to plaintiffs not protected by coverture title by limitation had matured.</p> <p>4. Improvements in Good Faith. — Where defendants making improvements recover an undivided interest in the land sued for, they are entitled to have their improvements allotted to them in partition if it can be done without injury to the other tenants in common.</p> <p>5. Proof by Subscribing Witness. — A deed was produced with two witnesses. One had proved it for record. The other testified: “The signature on this as a witness is mine. My information is that the other witness is dead. I think the signature of William Armstrong is genuine. I have often seen him write. He frequently called me to witness deeds, but I don’t remember whether he requested me to witness this one or not.” Held, this was sufficient evidence to admit the deed in evidence.</p> <p>6. Duly Recorded — Certified Copy from Land Office. — The deed for the land warrant was deposited with the warrant in the Land Office. A copy of the deed certified from the Land Office was recorded in the county where the land was situated. Held, that such registry was regular, and the deed duly recorded under statute of limitation of five years.</p>

<p>1. Innocent Purchaser. — An innocent purchaser ot vendor’s lien notes without knowledge of an older lien other than such constructive notice as he may have had from the record would occupy the same position as would a purchaser of the land.</p> <p>2. Record as Notice. — The rule with respect to the constructive notice given by the record of a deed under the registration laws is that a deed of record from the vendee of a vendor is not notice to a subsequent purchaser from the same vendor, if the first deed is not of record; and the record of a conveyance is only notice to after-purchasers under the same grantor.</p> <p>3. Case in Judgment. — Lee Reed sold land to William Reed and Frank Dorn, taking their notes, which were assigned to one Muenster. William Reed and Dorn were unable to pay, and they reconveyed to Lee Reed, who executed to them his own notes in lieu of theirs. They exchanged these notes with Muenster. who assigned them to Heidenheimer. The deed from Lee Reed was not recorded. Subsequently Lee Reed conveyed the land to Muenster, Muenster to Frank Dorn, taking his notes for purchase money, reserving a lien. These notes before maturity came to hands of appellant without notice of the deed to William Reed and Frank Dorn. Appellant foreclosed these notes and bought in the land. In suit by Heidenheimer to subject the land to the notes he had from Muenster, held, that appellant as a bona fide purchaser took the land discharged of Heidenheimer’s claim.</p>

<p>1. Omitted Minutes of Private Corporation May be Proved. — The proceedings and resolutions of private corporations omitted from the recorded minutes may be shown by other testimony. The records are prima facie evidence of the facts therein stated and that all things are rightly done. The proof disputing such a record must be convincing and satisfactory.</p> <p>2. Impeaching Ownership of Stock by Holder. — A plea that the stock in the name of a plaintiff suing the directors of a corporation had been a mere gratuity, and that the plaintiff had paid nothing therefor, should be supported by affidavit. Rev. Stats., art. 1265, sec. 10. Otherwise, testimony under it is inadmissible.</p> <p>3. Judgment of Forfeiture of a corporation in a suit in which the State is not a party is a nullity.</p>

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

<p>Defense to Promissory Note. —Suit on promissory note payable November 15, 1888. Answer alleged, that the payee of the note had borrowed §21,000, payable December 1, 1888, and that as security therefor he had included in a mortgage a tract of 640 acres of land owned by the defendant, held by title bond from the plaintiff, was not recorded. That plaintiff without consent of the defendant had contracted for an extension of his (plaintiff’s) note and mortgage; that by parol agreement before the loan and in consideration of the use of defendant’s land as security the plaintiff had let defendant have §525 of the borrowed money, for which the note sued on was executed; that it was the implied understanding between the parties that the plaintiff would pay the borrowed money at maturity, and thereby release the land of defendant included in the mortgage. Demurrer to the answer was sustained. Held, we can only hold the facts pleaded as a defense upon the theory that defendant was bound to pay the note only upon the plaintiff paying his own note and releasing the land from the mortgage. This can not be done, because defendant’s note was due half a month before the plaintiff’s, and the assumed theory would be making a new contract.</p>

<p>1. Chattel Mortgage — Certified Copy from Record. — A chattel mortgage duly acknowledged was filed with the county clerk as the statute prescrihes. An affidavit of the facts is a sufficient basis for the admission of a certified copy. Laws of 1891, p. 38.</p> <p>2. Irrelevant Testimony.- — In suit upon a note executed in pay for a stock of cattle the purchaser when sued upon the note sought to impeach the consideration by showing false and fraudulent representations by plaintiff touching the cattle. The plaintiff on this issue introduced letters to him by the defendant. Thereupon the defendant offered a letter written by himself on the same subject but to another man. Held, that the letter was properly excluded; a party can not make such evidence for himself.</p> <p>3. Contradictory Statements by Party When a Witness. — The rules applicable to the introduction of statements made by a witness elsewhere contradictory to those made in court as a witness, for the purpose of impeaching him, do not apply when the witness is a party to the action, for any statement made by him having a bearing on the matter in controversy is admissible against him, and without any predicate.</p> <p>4. Increase of Mortgaged Stock Cattle. — The court does not assent to the proposition that the mortgage would not include the natural increase of a stock of cattle between its execution and foreclosure; but a decree ordering the sale of the cattle in the brands as given in the mortgage can not be error when it does not appear that the increase had been so branded.</p> <p>5. Separate Property of Wife. — Suit by husband on a note and mortgage payable to the wife, alleged to be the separate property of the wife. The note had been executed in the purchase of a stock of cattle purchased by plaintiff during coverture. The plaintiff testified, that the cattle for which the note was given was his wife’s separate property. Held, that as against the defendant this was ample to sustain the allegation that the note was her separate property.</p>

2. Findings of Fact, etc., by Court. — Conclusions of law and of fact should be kept distinct, but the failure to do so can not as a general rule be treated as ground for reversal of the judgment. Ho statement is necessary.

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

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

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

<p>This is an appeal from a judgment for $500 against the appellant for refusing to carry the plaintiff from Brownwood to Ballinger on a return ticket from Austin, limited to the 24th of May. The refusal was on the 25th. The facts are fully stated in the opinion.</p>

<p>¡No statement is necessary.</p>

<p>1. Bill in Equity for Mew Trial — Insufficient Grounds. — That the judgment sought to be avoided does not conform to the pleadings is an error which should be corrected by appeal or error. That complainant was deprived of the right of appeal is no excuse for not suing out a writ of error to correct the judgment.</p> <p>2. Bill of Review. — Relief in equity against a judgment will be granted only when complainant has suffered from fraud, accident, or mistake, unmixed with negligence on his part.</p> <p>3. Same — Case in Judgment. — As grounds of complaint it was alleged that the judgment entered of record is not that rendered by the court. This complaint is not sustained by a conflicting entry upon the judge’s docket, nor by an allegation that the decree was fraudulently prepared by an attorney of the adverse party and thus entered, for it is the duty of the court to verify the minutes, and it is presumed he has done so.</p> <p>4. Disputed Boundary Dines. — Disputed boundary lines may be determined in actions of trespass to try title.</p>