Volume 86 — Texas Reports

Chief Justice Fisi-ier and Associate Justice Key having recused themselves, Hons. J. J. Falk and L. H. Brown were appointed special justices in the case in the Court of Civil Appeals. The opinion of the court was delivered by Justice Falk.

<p>This case reached the Supreme Court on a certificate of dissent, certified by the Court of Civil Appeals for the First District, in an appeal from Galveston County.</p>

<p>Error to Court of Civil Appeals for Third District, in an appeal from Bexar County.</p>

<p>On Certificate of Dissent from Court of Civil Appeals for First District, in an appeal from Harris.</p>

Davidson perfected an appeal from a judgment against him in the District Court. After the time prescribed by law within which the transcript should have been filed, and on February 4, 1893, he filed a motion in the Court of Civil Appeals, asking leave to file the transcript. Accompanying the motion was an affidavit accounting for the delay. This was overruled February 22, 1893. March 1 the appellees filed motion to affirm on certificate.

<p>1. Local Effect of Statutes—Injuries Causing Death. It is settled law, that the statute of a State which for a tort gives a right of action in derogation of the common law, or a right of action unknown to that law, can have no extra-territorial force; and in accordance with this rule, it has been expressly decided in this State that for an injury inflicted in another State, which results in the death of the party injured, the surviving relatives have no right to recover in this State........................................................ 69</p> <p>2. Same. . That the injured party died within this State from injuries received elsewhere, does not give right of action. The primary cause, or the wrong suffered, was when the injury was inflicted, and the residence of the deceased or the place of his death are immaterial.............. 70</p> <p>3. Same—Case in Judgment. Action in District Court of Nueces County by a mother against the railway company for negligently causing the death of her son. It was alleged in the petition that the injuries were inflicted in the Bepublic of Mexico, but that the son died in Texas. Held, that a demurrer to the petition was properly sustained................................. 7.1</p>

<p>Excuse for Not Filing Transcript—Case in Judgment. It is a general rule, that fault or negligence of counsel is deemed that of the client, and will not furnish sufficient ground for relief unless the adverse party be in some way connected with or party to it. This rule is not applicable to a case where appellant, a nonresident corporation, upon being sued employed counsel to defend. In the District Court, judgment was rendered against the appellant. The employed counsel prepared the case for appeal, perfected it, and obtained the transcript in ample time. From some cause, the counsel employed believed that their services were not wanted in the further conduct of the case. They never informed their client that they had ceased to represent it. The transcript was not filed, and appellee filed a motion to affirm on certificate. This fact reaching the general office of appellant, other lawyers were retained. The motion to affirm was resisted, and motion for leave to file transcript, setting out the facts, was urged.</p> <p>It appearing that appellant was not in fault, the Court of Appeals should have allowed the transcript to he filed........................ 73</p>

<p>Error to Court of Civil Appeals for Second District, in an appeal from Mitchell County.</p> <p>The opinion gives a full statement.</p>

3. Findings of Fact by Court of Civil Appeals. The findings of fact made by the Court of Civil Appeals can not be revised on writ of error by Supreme Court........................... 87 Error to Court of Civil Appeals for Third District, in an appeal from Johnson County.

<p>Error to Court of Civil Appeals for First District, in an appeal from Grimes County.</p>

<p>Error to Court of Civil Appeals for First District, in an appeal from Harrison County.</p>

Wilson v. Nance, 191 Humph., 11: “ The act of the clerk in omitting to state the name of one of the defendants in the margin of the entry can have no influence in the determination of the question who are or who are not properly defendants. Who are (such defendants), is a matter to be ascertained by reference to the process, pleadings, and proceedings in the suit.”

<p>Arrest by Deputy while Warrant is in Hands of Principal. Arnold was arrested by a deputy United States marshal without having a warrant. Such warrant, however, was in the hands of the marshal. No greater force was used in the arrest than would have been necessary had the capias been in possession of the deputy. In action for damages by Arnold against the marshal for false imprisonment, Held, that no legal ground for damages existed, and that the irregular mode of arrest did not affect the authority of the marshal to make the arrest, or cause it to be made............................................... 107</p>

<p>1. Receivers may be Authorized to Incur Debts Binding Corpus of the Property. The power to authorize a receiver appointed by a court of equity to create debts, and to make them a charge upon the corpus of the estate, exists in the administration of other corporations equally with railway corporations................................................... Ill</p> <p>2. Expenses of Receivership—Running Expenses. The expense of administering and preserving the property in hands of a receiver is to be charged, first upon the net income, and if that be not sufficient, then upon the property itself or its proceeds upon sale. The court controlling the matter has jurisdiction to approve such items and to provide for their payment upon a sale of the property........ 112</p> <p>3. Receiver’s Certificates—Statute—Mortgages. Since the Act of 1889, page 56, empowering receivers to contract debts in the administration of the estate to bind the property, all mortgages would be subject to the law giving priority to a receiver’s certificates over the mortgage................................................. 113</p> <p>4. Costs—Master in Chancery. An allowance to a master in chancery in payment for his services is included under the term costs of court...........'...................... 113</p> <p>5. Order of Sale by Sheriff. In a receivership, upon final order closing out the proceedings and ordering sale, it is competent to order sale to be made by the sheriff, even though a bondholder secured by deed of trust with power to sell may be party, and desire to make such sale under his trust deed.......... 114</p> <p>6. Receivership as Affecting Legal Proceedings. After property has been placed in the hands of a receiver it is not subject to levy and sale under execution. In this ease the levy upon real estate existing at the time of the appointment was suspended, and a sale under such execution and levy, pending the receivership, passed no title........................................................... 115</p> <p>7. Liens as Affected by Receivership. The receivership does not destroy any liens that may have been acquired before the appointment, but the remedy for their enforcement should be sought in the court in which the whole estate is being administered ............................................................. H6</p>

<p>1. Notice. Upon the death of the husband, it does not devolve upon a purchaser of • community property from the widow to inquire as to what persons inherit the separate property. She is, however, put upon inquiry as to who inherits the husband’s share of the community property...... 117</p> <p>2. Purchase from Widow—Community Property. The husband dying leaving no child or children, the law casts upon the widow the community property, and she can sell property apparently community and convey good title against any equitable claim or estate of which the purchaser did not have notice..................... 118</p>

<p>Certified Question from Court of Civil Appeals for First District, in an appeal from Shelby County.</p>

<p>Certified Question from Court of Civil Appeals for Second District, in an appeal from Hardeman County.</p>

<p>1. Construction of Deed—Fee Simple. A deed for certain town lots purported to be in consideration of $5, and granted the property to C. M. Dubois, bishop of Galveston, and his successors in office, for the use of the Roman Catholic Church. The habendum clause is as follows: “To have and to hold, all and singular, the premises above mentioned, unto the said C. M. Dubois, bishop of Galveston, for the use aforesaid, and to his successors and assigns forever.” Under this deed the grantee took a fee simple title in trust for the benefit of the church. No conditions subsequent were expressed ............................................................ 124</p> <p>. 2. Conditions Implied. The mere declaration of the uses to which the granted premises are to be applied do not ordinarily import a condition...................... 125</p> <p>3. Assigns. The use of the word assigns in the habendum clause indicates that it was contemplated that the trustee should have the power to sell the lots, and thus to divert them to a purpose other than that primarily intended ............................................................. 125</p> <p>4. Mortgage and Foreclosure. A purchaser at foreclosure sale of all the lots at a certain place owned by the mortgagor takes no title to lots sold by the mortgagor prior to the lien................................................................ 125</p> <p>5. Presumption of Regularity in Official Acts. The presumption is that public officers do as the law and their duty require them (Lawson on Presumptions of Evidence, 53), and the same rule prevails as to the authority and acts of private officers. Ibid, GO. This obtains as to the official acts of the Roman Catholic clergy in managing trust property held by them.................................. 126</p> <p>6. Coadjutor Bishop—Acts by Attorney. A deed by Bishop Gallagher, attorney in fact for C. M. Dubois, bishop of Galveston, also as administrator bishop, will pass title to property held in trust by Bishop Dubois—at least the legal title............... 126</p> <p>7. Recitals as to Motives of Grantor as Affecting His Deed. Bishop Dubois, by attorney Bishop Gallagher, by ordinary deed with special warranty, conveyed the lots in controversy to Olcott, who had bought at the foreclosure sale under subsequent mortgage. After the deed appears a recital that the motive was to restore the lots not used by the church to their owner, etc. Held, that this recital did not restore the property to the railway company, the grantor of Bishop Dubois, so as to enure to the benefit of a purchaser under execution against the railway company........................................ 127</p> <p>8. Moral Duty. There was no legal or equitable obligation upon Bishop Dubois to re-convey the lots to the railway company, as it had passed title by its deed. The effects of the railway company had been sold out. In discharging the moral obligation, as there was no legal or equitable one, the choice by him between the railway company and the purchaser at ' foreclosure sale could wrong no one. The deed did not accrue to the benefit of the railway company.................................... 127</p>

<p>Homestead Donation—Actual Settler. On October 2S, 1889, L. and C. went upon a strip of vacant land, and each worked upon the land selected by him for half a day. Next day each made affidavit of claim as actual settler, and application for survey. Each was head of a family. One returned in January and the other in February, 1890, with his family, built residence, enclosed and cultivated part of the land. March 10, 1890, B. applied to buy the land, including the claims of both. March 20, 1890, the land was surveyed under all the claimants. The Commissioner of the Land Office issued patent to B. He sued L. and C............................... 130</p> <p>Held: 1. The applications, October 29, gave no right, as neither was an actual settler............................................... 131</p> <p>2. The survey, March 10,1890, without an application that can be considered for any purpose, gave no validity to the claims for homestead donations..................................................... 132</p> <p>3. If L. and C., at the time they had become actual settlers, had made affidavit of such facts, and applied for survey, their claim would have been valid against B., a purchaser under what is known as the Scrap Act. Laws Twenty-first Legislature, ch. 54, p. 48............. 132</p>

<p>1. Facts Agreed to and Embodied in the Judgment. An agreed statement of facts upon which a case was tried in the court below, and which the court embodied in its judgment, is sufficient, in the absence of a statement of facts, findings of fact by the court, or agreed case for appeal under the statute, to authorize a revision of the judgment upon matters growing out of such facts................... 136</p> <p>2. Agreement as to Facts. See agreement, taken in connection with the information referred to, held sufficient for judicial action; it being an agreement that 1747 unnumbered ballots had been cast in the election; that if said votes should not be counted relator should have judgment, and if they should be counted the respondent should have judgment....................... 137</p> <p>3. Numbering Ballots—Constructive Repeal. The Act of April 12, 1892, entitled "An act to provide for the registration of all voters in all cities containing a population of 10,000 inhabitants or more, and to protect the purity of the ballot in such cities, and to provide penalties for the violation of the same,” provides that “ any elector, or any one who shall, contrary to the provisions of this act, place any mark on or do anything to his ballot by which it may afterward be identified as the one voted by any particular individual, upon conviction shall be punished,” etc. Held, that this does not repeal or control articles 1694 and 1697. Revised Statutes, which prescribe that all ballots shall be numbered, and that ballots not numbered shall not be counted................................................ 138</p> <p>4. Same. The Legislature did not intend, in passing the Act of April 12,1892, to prohibit the numbering of ballots in accordance with article 1694, Revised Statutes. The clause in section 28 of the Act of 1892, prohibiting the marking, etc., did not apply to the numbering as provided by the general law............. 139</p> <p>5. Unnumbered Ballots. The article 1697 prescribes that ballots not numbered as prescribed in article 1694, Revised Statutes, shall not be counted. The Legislature, under the Constitution, had the power to make such rule, and courts can not disregard it................................................ 142</p> <p>6. Right of Suffrage. The right of suffrage is conferred by the Constitution, and is not one of the natural and inalienable rights which are excepted out of the powers of government. The elector takes the right subject to the limitations imposed by the Constitution and such as the Legislature may impose, not inconsistent with the fundamental laws.......................... 142</p> <p>7. Mandatory Statute. The law commands that the number shall be written on the ballot, and forbids those not numbered to be counted. Taking the two articles together, with section 4, article 6, of the Constitution, there can be no doubt that they are mandatory...................................... 143</p>

<p>1. Corporations Under General Incorporation Law. Corporations organized under the general laws of the State have no powers other than such as are given by the laws of the State regulating such incorporations; embracing powers, although not expressly given, that are necessary to the exercise of those that are................... 149</p> <p>2. Same—Limitations Upon Corporate Powers. The proposition that a corporation created under the general incorporation laws of this State may do any act in reference to its property which a natural person may do with his own, is expressly negatived by the statute. The purpose for which formed, article 567, must be stated,in charter. Funds can not be used for any other purpose, article 589. Power is given to purchase, etc., such real and personal estate as the purposes of the corporation shall require, article 575. This power to buy, sell, etc., seems to exist only as required to carry on the business or purpose of the corporation. In this we do not find a grant of power to an insolvent corporation, having ceased operations, to convey to preferred creditors........................................... 151</p> <p>3. General Incorporation Law—Contracts. The statute, article 575, prescribes that corporations have power “to enter into any obligations or contracts essential to the transaction of its authorized business.” This restricts the power to contract to the business authorized in the charters. And when that business ceases without intent by the corporation to resume, the business no longer exists, nor the right to contract therein.................................... 152</p> <p>4. Authorized Business—Cessation of it. That business was authorized which its charter stated it was formed to pursue. Business is synonymous with employment, and when that ceases, with no intent that it be resumed, the business no longer existed ............................................................. 153</p> <p>5. Same—Borrowing Money, etc. Article 577, authorizing the borrowing of money and securing same, evidently refers only to a corporation doing business................... 154</p> <p>6. Insolvency of Corporation. The mere insolvency of a corporation, followed by a cessation of business with no intent to resume, will not operate what is technically known as dissolution; but it has been held in many cases, with much reason, that such condition of affairs will confer on creditors practically the same rights as they would have under a technical dissolution......... 155</p> <p>7. Same—Trust—Trustees. Article 606 establishes the proposition that a trusteeship exists in every dissolution to which it is applicable; and this fixes upon the property a trust primarily for payment of debts. It would seem that such trust relation would result from insolvency and cessation of the business.155,163</p> <p>8. Statutes Discussed. Revised Statutes (Sayles" edition), article 1461, on receivers; articles 3460, 3461, limited partnerships; and article 61i, on assignments, discussed ............................................................. 156</p> <p>9. Assets of Insolvent and Suspended Corporation. The assets of an insolvent corporation which has ceased to carry on business, and does not intend to resume, is a fund from which all creditors not secured by valid liens existing before the condition was fixed, have the right to be paid on terms of perfect equality..................... 158</p> <p>10. Same. The right of an insolvent corporation, having ceased operating in its business, to prefer its creditors, is not expressly given by statute, and it can not be implied, for it is not necessary to the accomplishment of any'purpose for which such corporation maybe created.............. 162</p> <p>11. Same. A private trading corporation chartered July, 1884, under the general law, having become insolvent, ceased to carry on its business, without any intention of resuming the enterprise, has no power to prefer creditors by mortgage or otherwise. Such condition, under the recognized rules of equity, conferred upon every unsecured creditor the right to a ratable share of the proceeds of all the assets of the corporation lawfully existing when the condition arose..................: 166</p>

<p>Certified Question from Court of Civil Appeals for Second District, in an appeal from the County Court of Tarrant County.</p>

<p>Certified Questions from Court of Civil Appeals for Fifth District, in an appeal from Smith County.</p>

<p>Certified Question from Court of Civil Appeals for First District, in an appeal from Jackson County.</p>

<p>1. A Father Adversely Interested to His Children can not Submit their Interest to Arbitration. William Killebrew claiming a tract of land in his own right, could not submit the claims of his minor children to said land to arbitration by-signing for them an agreement to submit the matter to arbitration. Their interests were adverse to his.................................. 175</p> <p>2. Submission to Arbitration—Parties. An agreement submitted to arbitration the matter of settlement by heirs with the executor of the will of the testator, and also between one another as tó their interest in the estate. There had been advancements and a partial partition. The arbitration involved the settlement of the amount each heir (or devisee) had received, and the amount each was entitled to out of the general assets in hands of executor. In this state of facts, minor children entitled to a share were necessary parties to the arbitration, and without them the award was invalid, binding nobody......................................................... 176</p> <p>3. Award in Excess of Authority. An award in excess of the authority of the arbitrators is void unless the matter in excess is such as may be disregarded and a valid award left standing. See example............................................. 177</p> <p>4. Jurisdiction to Enter an Award. In cases in which an extraordinary power, as of entering an award in an arbitration, is conferred by statute upon a court of general jurisdiction, we are-of opinion that the jurisdiction should be treated as special; that the statutory authority should be substantially followed; and that if that authority be exceeded the judgment upon the award should be held void................................................. 177</p> <p>5. Necessary Parties. If there he no agreement binding upon all the parties to the submission, or if there be necessary parties to a suit to determine the issues, then the award is void. So also if the arbitrators failed to act upon the matters submitted or proceeded to determine matters not submitted. See example............................................................ 177</p> <p>6. Recitals in Entry of Judgment upon Award. Recitals of consent of parties in the judgment entry upon an award filed upon submission outside the court, do not have the conclusive effect as if the reference to arbitrators had been made in a suit pending with all parties before the court.......................................... 178</p>

<p>1. Cattle May Bun at Large—Duty of Owner of Land. Neither the courts nor the Legislature of this State have ever recognized the rule of the common law which requires every man to restrain his cattle, either by tethering or by enclosure. If cattle of one person wander upon the unenclosed lands of another, or upon his lands imperfectly enclosed, they are not trespassers, and the owner is not liable for any damage that they may inflict. It follows, that one who desires to secure his lands against the encroachments of livestock running at large, either upon the open range or in adjoining fields or pastures, must throw around it an enclosure sufficient to prevent the entry of all ordinary animals of the class intended to be excluded. A charge in conflict with this rule held reversible error...............185</p> <p>2. Kind of Fence. It may be admitted, that if the owner’s enclosure be sufficient to exclude all cattle of an ordinary disposition, he would have the right to recover for the trespass of such as are peculiarly vicious and prone to break fences........................................................ 186</p> <p>3. Bight of Owners of Livestock. It is the right of every owner of domestic animals in this State, not known to be diseased, vicious, or breachy, to allow them to run at large, and this without reference to the "size or class of such animals kept by others in the same neighborhood; e. g., a stock owner may turn his calves and yearlings out, although adjoining a pasture built to secure older and larger kinds..................................... 186</p> <p>4. Statutes Defining Lawful Fences, etc. Title 43; title 93, chapter 5, and act amendatory, March 26, 1887, apply to lands in cultivation, and not to pasture lands...................... 186</p> <p>5. Diseased Cattle. An owner of diseased cattle would be liable in damages caused by placing them in his pasture adjoining another into which it was probable the diseased cattle might intrude.................................... 187</p> <p>ON MOTION FOR REHEARING.</p> <p>11. Same. An assignment of error, that 11 the court erred in the fifth paragraph of his charge to the jury, which is as follows” (setting it out), is sufficient, without allegation wherein is the error complained of..... 189,1^2</p> <p>12. Same. An assignment, that “ the court erred in overruling the defendant’s general demurrer to plaintiffs’ petition,” should be held good, and should be considered on appeal............................................. 192</p> <p>13. Cause of Action. ! Allegation that plaintiffs’ land was securely fenced and that defendant permitted its cattle to break through their enclosure, states cause of action on general demurrer......................................... 192</p>

In the District Court, Batsell sued to recover back money paid by him upon a subscription made for purpose of securing a railway, etc., to Sherman. The nature of the litigation is given in Darnell v. Lyon, 85 Texas, 456-458, in which the purpose and nature of the same contract are discussed. The demurrer of the defendant was sustained. This action was reversed on appeal.

<p>Questions Certified from Court of Civil Appeals for Fifth District, in an appeal from Grayson County. ¡</p>

<p>1. Charge—Care by Railway for its Passengers. The charge that it was the duty of the carrier to a passenger “ to use the greatest possible care and diligence to provide for his safe conveyance,” is not a correct statement of the law. See discussion of authorities................................................................ 204</p> <p>2. Same. The rule on this subject in Railway v. Halloren, 53 Texas, 53, adhered to. Railway companies, however, are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances. 204</p> <p>3. Charge—Practice. . The charge in paragraph first is error, and it did not devolve on the defendant to ask an explanation. A counter-charge would have confused ¡ the jury. Under article 1361, Revised Statutes, it stood as if excepted to. 207</p>

<p>Error to Court of Civil Appeals for First District, in an appeal from the County (Probate) Court of Rusk County.</p>

<p>Original Proceeding for mandamus. _ The opinion gives the facts.</p>

Original Application for mandamus. It was sought by this proceeding to obtain a mandamus requiring district judge F. G. Morris to vacate an injunction issued by him prohibitjing the counting and certifying of the vote in an election upon local option held in Williamson County. Judge Morris filed answer, among other things urging the grounds sustained in the opinion of the court. . The facts sufficiently appear in the opinion.

<p>Application for Mandamus to compel the Court of Civil Appeals for Fourth District to certify a dissent to the Supreme Court, to the end: that the Supreme Court take jurisdiction of the case. The appeal is from Bexar County.</p>

<p>Application for Writ of Error to Court of Civil Appeals for First District, in an appeal from Harris County.</p>

<p>Certified Questions from Court of Civil Appeals for Fifth District, in an appeal from Rockwall County.</p>

<p>Certified Questions from Court of Civil Appeals for Fifth District, in an appeal from Hunt County.</p>

<p>1. Record in Supreme Court. j This court will look to the uncontroverted facts in the record for a full j understanding of the questions to be decided when the Court of Civil Appeals omits findings upon material points........................ 246</p> <p>2. Bodily Presence of Injured Before the Jury—Age. j In suit for damages for personal injuries to a wife, verdict was rendered for $5000. The trial judge had instructed the jury 11 that it could take into consideration the diminished working capacity of the plaintiff.” On appeal, this charge was attacked on alleged grounds “that there ! was no proof showing either the age of the plaintiff, the probable duration of her life, or the value of her labor either before or after the injury.” There were circumstances in evidence from which opinions could be formed. Held, in such case, in which age is but a help to ar~ [ rive at the conclusion sought, the fact of the presence of the party before the jury is proper to be considered on appeal in determining the sufficiency of the evidence...................................... 246</p> <p>3. Case Adhered to. | Brunswig v. White, 70 Texas, oil, approved, and the rule announced applied to jury estimating value of services of a wife from circumstantial testimony....................................................... 247</p> <p>4. Value of Services of a Wife. ¡ From a detailed statement of the position of the wife, her family, her ordinary duties and labor, a jury can estimate the value of such services as well as any witness likely to be called. It is not necessary that witnesses should give money estimate of such value............. 248</p> <p>5. Wife’s Services. The wife’s services are not to be computed as of a servant or hireling; and a verdict based upon the circumstances and condition of the wife, and guided by the sound judgment and discretion of the jury, should not be disregarded, unless upon evidence of abuse of such discretion. 249</p>

Associate Justice Ket did not sit in the case in the Court of Civil Appeals. The opinion was delivered by Associate Justice Collard. This suit was filed in the District Court of Travis County, June 13, 1891, in the name of the State of Texas, upon the relation of the Attorney-General, against the Queen Insurance Company and fifty-four other fire insurance companies doing business in the State of Texas, and the Texas Insurance Club.

<p>Certified Questions from Court of Civil Appeals for Fifth District, in an appeal from Dallas County.</p>

<p>Notice—Maps—Case in Judgment.</p> <p>Sale by common source to the railway company of blocks 50 and 55-, and so described in deed, and its road was built through number 55. It seems that this sale was made according to a map never recorded. The vendor subsequently sold to those under whom the defendants hold, certain lots according to another map, and not conflicting with blocks 50 and 55 as shown thereon. The vendees paid the purchase money, and had no actual notice of the extent of the claim of the railway under its purchase. Action by the railway company for the land claimed as part of block 55.................................................. 2Í35</p> <p>Held: 1. The operation by the plaintiff of the railway upon the track through number 55 could only be notice to the extent the deed would be, if recorded............................................... 286</p> <p>2. The defendants purchasing according to the only map known, ¡ or that could be known by searching the records, could not be charged with knowledge of any other map................................... 287</p> <p>3. The railway company having failed to describe their purchase other than by block numbers of a map never described or recorded, are in greater fault than the subsequent purchasers shown to have given great care to ascertain the facts, they should not suffer.............287</p>

<p>Certified Questions from Court of Civil Appeals for Second District, in an appeal from Hardeman County.</p> <p>The matters certified are as follows:</p> <p>“ First. The Sidney Smith one-third league certificate was located in Van Zandt County in 1854, and afterwards, with field notes, returned to and filed in the General Land Office, where it remained till 1869, when it was floated and withdrawn by one Cundiff for the owners, with the consent of the Commissioner, and in 1874 located on the land in controversy and ‘afterwards returned, with field notes, to Land Office within propel1 time. If the surveys first made in Van Zandt County were in conflict with any other survey, it was the Mississippi & Pacific Railway reservation. . I</p> <p>“1. May we, without proof, know judicially that these surveys in Van Zandt County were then covered by this reservation ? If so, would that fact prevent the certificate from being merged in the land and lost by the subsequent withdrawal from the Land Office ?</p> <p>“2. If not in conflict with the reservation or other survey, was it so merged and lost ? ■</p> <p>“ Second. Appellee claims in opposition to the Sidney Smith location under railway certificates, upon some of which patents issued in 1876? while appellants claim under the Sidney Smith location upon which no patent ever issued. Appellants filed their suit in court below, July 6, 1889, to recover the land thus covered by conflicting locations. When located, the lands were in an unorganized county, and the location for appellees was made in 1873 by the surveyor of the wrong land district, but was afterwards (Act of 1881) validated so far as the Legislature had the power to do it. The surveyor of the proper district approved in his office the work and field notes as done and made out by the agent who located for appellants, but did not himself go on the ground and do the work.</p> <p>“1. In such case, if all the land certificates be valid, which location should prevail ?</p> <p>“2. Does the defense of stale demand have application? In other words, does the fact that appellee claims under a patent issued more than ten years before the institution of the suit enable them to interpose the defense of stale demand to prior location of appellants which has never been patented ? It is important that this question be answered, because of its application to other cases as well as this.</p> <p>“ Third. Appellants recovered a part of the land. Appellee has submitted cross-assignments of error, but did not perfect any appeal by giving bond or otherwise.</p> <p>“1. Can we consider these cross-assignments except to sustain the judgment ? •</p> <p>“ 2. Can appellee have a reversal in such case of that part of the judgment rendered against it?”</p>

<p>1. Variance. j Instrument declared on as executed by Anlcerman and wife. A paper answering in all other respects as alleged, was admitted in evidence, but signed by AnJcenman and wife. The execution of the paper by de- , fendants was proved, and there was no doubt as to the identity of the persons who signed. It not appearing that the defendant, a purchaser of the property encumbered by them, had been misled by the allegation, the admission of the evidence was not reversible error..............293</p> <p>2. Mechanic’s Lien—Express Lien on Homestead. Under the Constitution the homestead may be encumbered for improvements thereon. A contract executed in the manner prescribed by law | to a lumber company for labor and material to be used upon the homestead, and duly acknowledged, gives an express lien on the homestead to secure the value of the labor and material expended in improving ¡ such homestead.................................................... 294</p> <p>3. Filing Lien on Homestead for Record. The filing of such express lien on the homestead for record operates as j notice to subsequent purchasers. It is immaterial that such paper ! may have been recorded in a book kept for the record of deeds....... 295</p>

<p>1. Land Certificate—Nonreturn of Field Notes—Forfeiture. A land certificate was located in 1869. The survey was forfeited for non-return of the certificate to the General Land Office. The certificate was not thereby invalidated. It could be used to appropriate other land in 1874. See Act November 29,1871, Pasch. Dig., art. 7097...... 297</p> <p>2. Construction of Statute—Forfeiture. Where there are several rights that might be affected by failure to do some particular act or acts, the declaration that such failure shall operate a forfeiture of one or more of these rights shows the intent that no other right but those named shall be thus lost or forfeited.......298</p> <p>3. Validation of Land Certificates—Constitution of 1869. Article 10, sections 2, 3, and 4, of Constitution of 1869, recognized the right of every owner of an unsatisfied genuine land certificate through it to acquire the quantity of land called for.......................... 298</p> <p>4. Unsatisfied Land Certificate. A land certificate can be said to be satisfied only when the obligation imposed by it is discharged in the manner contemplated when it issued; that is, until the land called for is secured to its owner by survey and return of its survey to the Land Office.............................. 298</p> <p>5. Case Adhered to—Location of Certificate by Other than Owner. Beatty v. Masterson, 77 Texas, 171, adhered to. The owner of a land certificate may assert title to land secured under a duplicate obtained and located by one in fraud of such owner. His want of knowledge or consent does not prevent his assertion of ownership............... 299</p>

<p>1. Protest on Last Day of Grace. In order to fix by protest the liability of an endorser upon a promissory note, the protest should be made on the last day of grace............. 300</p> <p>2. Protest—Statutes Construed. Articles 273 and 276, Revised Statutes, relating to days of grace and protest, discussed and construed........................................ 301</p>

<p>Illegal to Mortgage Salary or Fees of Office. It is contrary to public policy in this State for a public officer to assign or give a lien upon bis unearned compensation which is given by law, whether such compensation be salary or fees. Any such assignment or lien is void...................................................... 304</p>

<p>1. Liens Given by Law—Foreclosure—Practice. When the issues submitted to a jury embrace only such claim or claims as by law are given a lien upon property, it is not necessary to submit the question of lien to a jury. Day v. Cross, 59 Texas, 608.......... 309</p> <p>2. Same—Other Issues—Practice. If more than one issue be submitted involving several different claims upon which recovery is sought, and upon one or more no lien would attach by law, and none exists by undisputed contract, if the jury return a general verdict the court can not declare a lien upon such verdict; for it is not certain that the amount found to be due is upon a claim entitled by law to a lien....................................... 310</p> <p>3. Compensation in Condemnation Proceedings—Constitution. Compensation which the Constitution requires to be made in advance, includes such damages as might be estimated on condemnation proceedings, which are “ all damages, present and prospective, that are the natural, necessary, or reasonable incident of the improvement, not including such as may arise from negligent or unskillful construction or use thereof.” Without such payment title does not pass.......____312</p> <p>4. Same—Lien. If a railway, either with or without condemnation proceedings, take the land of another for right of way or other use, then the owner will have a lien upon the land to secure the payment of all damages which the Constitution and the law require to be paid before the right to use it vests. The value of the land, damages caused to the balance of the tract, and any other damages that with reasonable certainty might be known as the result of the proper construction and operation of the railway, would be included......................................... 313</p> <p>5. Where Lien not Given. But the Constitution and laws of the State give no lien for damages arising from negligence or unskillful construction or operation of the railway. 313</p> <p>6. Liens Given by Law—Practice—Case in Judgment. Suit by land owner against the railway company for damages for land taken, damages to tract remaining, for failure to make crossings stipulated, and for insufficient culverts and sluices causing overflow. These were all submitted as bases for damages, and a gross sum was given plaintiff in the verdict. The pleadings and evidence warranted the submission of these issues....................................... 310 Held: 1. The facts pleaded and prayer for general relief authorized judgment foreclosing the lien for the damages given by the Constitution and laws for the taking of property............................ 312 2. It being impossible to determine from the verdict that the damages were such as the law gives lien, it is ground for reversal that a decree foreclosing the lien was rendered............................. 314</p>

<p>1. Description Insufficient in Deed. The order confirming an administration sale described the land sold as “ 1800 acres of land, it being the upper part of said survey.” The ad- ¡ ministrator made a deed for 1800 acres of land described as “being the upper part of the league and labor of land granted to the heirs of Mary Bird, situated on the waters of Pecan Bayou, in Travis.” Held, that by the description, “toe upper part of said survey,” nothing would ! pass, for want of certainty as to what was intended to be conveyed... 317</p> <p>ON REHEARING.</p> <p>2. Same. In an administration sale the order of sale may he looked to in aid of the description given in the confirmation or deed. But in this case the order of sale directed that the sale be made of laud on the upper line. This in no way aided the description upper part; rather was it contradictory or confusing.............................................. 320</p> <p>3. Affidavits in Supreme Court. Affidavits to facts to which no testimony was adduced in the trial court can not be considered by the Supreme Court........................ 320</p> <p>4. Practice on Appeal. This court will not reverse a judgment properly rendered merely to give the losing party an opportunity to introduce testimony not used on the trial, and especially when he claims no interest under the title he seeks to establish................................................ 320</p>

<p>1. Proceedings to Disbar a Licensed Attorney. Such proceedings are not criminal prosecutions, and an appeal lies in such cases from the District Courts to the Courts of Civil Appeals____322</p> <p>2. Case Overruled. The State v. Tunstall. 51 Texas, 81, can not be authority in proceedings to disbar an attorney instituted under the provisions of the Revised Civil Statutes...................................................... 323</p>

Associate Justice Ket did not sit in the case in the Court of Civil Appeals. The suit was brought October 11, 1889, by L. M. Crooker, surviving partner, etc., against R. B. Lignoski and his wife, Ella Lignoski, and against their vendee, A. G-. Creath, to enforce an express lien for material and labor furnished. , The petition set out and the evidence showed two contracts, signed by-said Lignoski and wife, with privy acknowledgment of the wife.

The application for writ of error was based upon the action of the Court of Civil Appeals holding, “that the Act of 1893, regulating the sale of spirituous, vinous, and malt liquors, repeals the Act of 1887 upon the same subject; and that the penalties accrued by reason of any breach of a bond executed under the Act of 1887 are pardoned thereby.” This presented the only question discussed and decided by the court.

The opinion gives a statement of the case in the District Court. Held: that deeds (original) introduced by the plaintiff only to show common source of title, the defendants not having introduced them in evidence, could not be considered for any other purpose.

<p>Compensation for Assessors—Funded Indebtedness. Under section 3 of chapter 79, Acts of Twenty-first Legislature, page 89, authorizing counties to fund their indebtedness and to provide means of payment, it is prescribed that the assessor, etc., “ shall receive for I their services one-fourth the rate of commissions allowed for assessing * * * the State tax.” The general laws allow commissions upon the amount upon the rolls, and provide that the State pay two-thirds j and the county one-third of the expense. Under these laws, the assessor for the special assessment would be entitled to receive one-fourth of two-thirds of the commissions allowed for the assessment of State and county taxes.............................................. 349</p>

<p>1. Promoter of Proposed Incorporation—Agency.</p> <p>j A promoter, though he purport to act in behalf of the projected corporation, and not for himself, can not be treated as agent, because the nominal principal is not then in existence; and hence, where there is nothing more than a contract by a promoter, in which he undertakes to bind the future corporation, it is generally conceded that it can not ¡ be enforced......................................................... 353</p> <p>2. Same—Acceptance of Contract. It is also generally held, that contracts by promoters made in behalf of the corporation, within the scope of its general authority, may be adopted by the latter after its organization; and that if a contract be made in behalf of a corporation by its promoters, and the corporation after its organization, with a knowledge of the facts, accepts its benefits, it must assume its burdens; and if the other party has performed the stipulations binding upon him the contract may be enforced as ¡ against the corporation.............................................364</p> <p>3. Same. j Having exercised rights and enjoyed benefits secured to it by the terms • of a contract made by its promoters in its behalf, a corporation should be held estopped to deny its validity............................... 355</p> <p>4. Corporation Adopting Acts, etc. j It is generally held, that in the absence of such provision (for payment of expenses of organization) in the charter, no implied promise can be imputed to a corporation to pay for the services of a corporator or promoter before the corporation comes into existence. A contract made by a promoter may be adopted by a corporation expressly, or impliedly by exercising rights under it, but otherwise it is not binding upon such corporation.............................................. 356</p> <p>5. Contract in Behalf of Corporation. ! The proposition out of which the matter in dispute arose was to construct a railway between named points upon receiving a named bonus. Acceptance of the bonus imposed the burden proposed. This is different from the contract by a promoter for services in getting upthe bonus, preparing the articles of incorporation, and the'nécéssary expenses of the organization ..; .VI V'................................. 356</p> <p>6. Case in Judgment. A promoter of the defendant company, prior to the incorporation, employed the plaintiff, who aided in getting_up_.a_bonus for the proposed l corporation, and by advice otherwise aided the enterprise before and after the incorporation, on the employment of the promoter. Held, that for the services before the incorporation he could not recover. The judgment below including gross amount for services before and after incorporation, a.reversal is necessary.......................... 357</p> <p>7. Case Overruled. McDonough v. Bank, 34 Texas, 309, overruled, in holding that merely by accepting the benefits of the plaintiff’s labor the defendant relied on and became bound under the promoter’s contract................. 358</p>

<p>1. Fact Case—Loan—Reservation or Limitation. In 1885, Templeman entered into an oral agreement with the wife of A. J. Ward by which he delivered to her, upon her farm in Texas. 239 head of sheep, which were put with 172 head of sheep, the separate property of Mrs. Ward, in a common flock. Templeman having more sheep than Mrs. Ward, their interests were equalized by the care, control, and keeping of the sheep by her. They became equal owners of the flock, each owning an undivided one-half interest thereof. The proceeds of the wool and the profits were to he equally divided between the parties. The sheep remained on the farm and were in the possession of A. J. Ward for more than two years. Templeman's interest in the proceeds of the wool was accounted for annually. September 2,1891, the sheep were levied upon and sold as the property of the husband, A. J. Ward. Gibbs & Gibbs were the purchasers....... 360 In contest between Templeman and the purchasers, Held: 1. The intention was to make the combined flock common property of the contracting parties, and that each should share equally in profits resulting from it. The contract when executed made the combined flock common property of Mrs. Ward and Templeman, and made them tenants in common......................................................... 362 2. The contract did not show a loan by Templeman................ 361 3. From such a contract and such relation no reservation or limitation by way of condition, reversion, remainder, or otherwise could arise, whether these words be used in a technical or in any popular sense............................................................... 363 4. The increase and profits of Mrs. Ward's share became subject to debts of the husband, as community property........................ 363</p> <p>2. Loan—Statute Construed. The transaction referred to in article 2468, Revised Statutes, as a loan, is evidently one in which the owner places some specific thing in the hands of a borrower to be used by him without compensation, but at some future time to be returned....................................361</p> <p>3. Same—Reservation or Limitation. Both these words “ reservation or limitation,” as used in article 2468, Revised Statutes, imply a divestiture of title, partial or entire, of the person who creates the reservation or imposes the limitation. The words are more frequently defined in their relation to real property, or some right growing out of it, yet the same meaning may be given them when used in relation to goods and chattels....................362</p> <p>4. Same. As used in the statute, article 2468, the word reservation necessarily applies to the real or pretended right or interest of the owner out of possession; while the word limitation must apply to the restriction, real or pretended, on the right of the person in possession to the property or its use...................................................... 362</p>

<p>Error to Court of Civil Appeals for Second District, in an appeal from Parker County.</p> <p>Justice Stephens, being disqualified, did not sit in the case in Court of Civil Appeals.</p>

<p>Certified Question from Court of Civil Appeals for First District, in an appeal from De Witt County.</p>

<p>1. Time within which Writ of Error May be Sued Out. The Act of April 13,1892, chapter 17, Laws of Twenty-second Legislature, page 43, prescribing that writs of error from judgments in the District and County Courts, in cases where the same is allowed, may be sued out at any time within twelve months after the final judgment is rendered, and not thereafter, applies to judgments rendered before that law took effect................................................. 377</p> <p>2. Construction of Statute. Our courts have adopted the rule, that upon the adoption of a new term of limitation, the time which elapsed under the former law will be counted in the ratio that it bears to the whole period, and the time of the new law will be computed upon the basis of the ratio that the unexpired time under the old law bears to the whole time. Buie in Gautier v. Franklin, 1 Texas, 732 ....................................... 378 .</p>

<p>1. Railways Liable for Negligence of Receiver. A railway company is liable for damages if the receiver controlling the i road at the time of the injury was liable; not as being liable for his negligence, but because the earnings of the road while in control of the receiver had been used to make' permanent and valuable improvements upon the road, which with its improved conditions had been I restored to the railway company.......................,.......... 379</p> <p>2. Assignment of Error. An assignment thatthe court erred in refusing special charges num- , bered from one to four inclusive, asked by the defendant,” is too gen- ! eral. The charges embodied different propositions of law........... 379</p> <p>3. Market Value—Telegrams and Trade Journals. It is competent for a witness to testify as to market value of livestock ! at Chicago on a given day, although the witness at the time was in Texas. His means of knowledge were stated to be his daily receipt and inspection of telegrams and stock journals from Chicago, giving prices j from day to day.................................................... 380</p>

<p>Certified Question from Court of Civil Appeals for Fourth District,, in an appeal from Bexar County.</p>

<p>1. Application for Writ of Error. ¡ The law contemplates and requires that “ the petition (for writ of error) shall be accompanied with a certified copy of the conclusions of law and of fact filed in the cause by the Court of Civil Appeals with the : opinion thereof.” It further requires: “After a cause is decided in ! the Court of Civil Appeals, a conclusion of the facts and law of the case shall he filed in said cause within thirty days after the decision of the same.” Without such exhibit a writ of error will not be allowed. 383</p> <p>2. Same—Practice. The case was postponed for thirty days to enable the applicant to secure action by the Court of Civil Appeals on his motion to have filed conclusions of law and facts............................................ 383</p> <p>3. Mandamus to Court of Civil Appeals. On application for mandamus to the Court of Civil Appeals to compel the filing of conclusions of fact and law in case decided by it, the Supreme Court, as in other cases, will examine the application in order i to determine whether it discloses a case which would justify upon the hearing a peremptory writ.......................................... 384</p> <p>4. Filing Conclusions of Fact and Law. The statute does not impose upon the judges of the Courts of Civil Ap- ' peals the duty of filing conclusions of fact and of law in cases over which their jurisdiction is final; as in a case of boundary............384</p> <p>5. Same. The opinion of the Court of Civil Appeals that the case is one of boundary is conclusive on the Supreme Court, in absence of facts showing otherwise. If the applicant had accompanied his application with a copy of the statement of facts, certified from the transcript in the Court of Civil Appeals, or with extracts from that statement duly certified, showing that this is not simply a boundary case, the ruling would have been different.......................................... 386'</p> <p>6. Same—Practice. When application is made to the Court of Civil Appeals to file conclusions of fact and law, and the court declines to accede to the request, upon the ground that no writ of error lies to their judgment, and the nature of the case is not such as to make it apparent that their jurisdiction is final, it is a useful rule to file1 with the petition for writ of error a statement of the character of the controversy, and of the issues involved, with sufficient fulness of detail to enable this court to determine whether it has power to grant a writ of error in the event application should be made.............................................. 385-</p>

This was a suit by Kountze Bros., as creditors of Cargill & Dennis, to-compel them to make discovery of their assets. The District Court sustained a demurrer to the petition and dismissed-the bill. On error the Court of Civil Appeals reversed the judgment.

<p>Error to Court of Civil Appeals for Third District, in an appeal from. McLennan County.</p>

<p>Mental Anguish as Ground of Damages—Fright. In response to the following questions, viz.: (1) In an action for damages based upon tortious and negligent conduct of a defendant, where | the wrongful act causes damages to plaintiff’s property, but no physical injury to plaintiff, is mental suffering an element of actual damages? (2) Can actual damages be recovered for mental suffering when there is no physical injury, no injury to property, nor other element of actual damages ? The court responded: We are of opinion that these questions should be answered in the negative. So far as we have been able to discover, all the cases involving the question of the right to recover for fright alone are in accordance with that holding. Authorities are discussed..................................... 41$</p>

The ground of application in error was the alleged conflict with other-decisions in the decision of the case by the Court of Civil Appeals.

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Kaufman County.</p> <p>Justice Rainey did not sit in this case.</p>

<p>1. Partnership. See contract held to constitute the parties a firm, a partnership........427</p> <p>2. Contract of Partnership—Construction. The contract out of which litigation arose distinctly expressed that a partnership of three persons was formed, the members to share losses and gains in a ranch enterprise. The clause, “ in stocking said range no member shall, except by consent, put thereon exceeding one-third the capacity thereof, as may be determined by the firm,” did not inject into the contract the obligation of the firm to care for such stock put in the pasture by individual members of the firm, at the expense of the firm........................................................ 429</p>

Chief Justice Fisher being disqualified, Hon. L. J. Storey was appointed special judge in this case, and he delivered the opinion in the Court of Civil Appeals.

<p>1. Issue of Fact. A finding of fact by Court of Civil Appeals will not be inquired into by this court on error, where it is not claimed that there is no evidence to support the finding.............................................441</p> <p>2. Parol Contemporaneous Agreements Affecting Written Contract. A parol contemporaneous agreement intentionally omitted from a written contract can not be pleaded to alter the written by incorporating into it such parol contract.......................................... 441</p> <p>3. Immaterial Error. Where it does not appear that time was of the essence of a contract, the ■ admission of illegal or exclusion of legal testimony affecting a short delay in entering upon the performance is immaterial; especially so when such delay was condoned by the adverse party................. 442</p> <p>4. Statute of Frauds—Rescission of Conveyance of Land. The general principle that cancelling, altering, or redelivering the title deeds of corporeal interests in lands does not operate to revest the land in the grantor, is too familiar to require the citation of authorities. Brown’s Statute of Frauds, sec. 59............................ 443</p> <p>5. Same—Equities. See facts held not to bring the case within any of- the exceptions to the general rule of the law, nor showing equities calling upon a court to interfere........................................................... 445</p> <p>6. Right to Plead Statute of Frauds. Plaintiff sued to recover certain town lots. The defendants interposed as defense a contract by the plaintiff to convey them, under which contract the defendants held. Plaintiff sought to avoid the contract by showing a parol rescission of it. Held, that the defendants could urge the invalidity of.the rescission by parol under the statute ............ 446</p>

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Hunt County.</p>

<p>1. Leading Question—Practice. A witness was asked on direct examination: “From your knowledge- ' and experience as an engineer, was it possible to have stopped the train after you saw plaintiff in his wagon coming on the track at the crossing, and prevented a collision with it?” On objection, Held, that the question was leading; it admitted of an answer, yes or no, and not only suggested the negative response, but was calculated to put in the mouth of the witness the very words of the examining counsel. It j was properly excluded. After the objection, the question should have been so framed as to have permitted the witness to state the fact or opinion in his own way............................................ 452:</p> <p>2. Argument of Counsel. It is the duty of the court to confine the argument of counsel, at any ■ stage, to the evidence before the jury; but with the propriety of an argument upon testimony which has been adduced the court has no concern; especially when the opposing counsel has the right to reply. See example........................................................ 453-</p> <p>3. Remittitur. Evidence was admitted and the issue submitted to the jury as a basis for damages (among others), the amount paid for medicines during recovery from the injury. This was not alleged in the pleadings. There was direct evidence that the injury and consequent suffering were great. The largest estimate of costs of medicines did not exceed $500. Held, that a remittitur of that sum cured the error in admitting the [ testimony and submitting the issue in absence of pleadings........... 454</p> <p>4. Practice—Exclusion of Illegal Testimony from Record. The rule is, that the exclusion by the court of illegal evidence will cure the error of its admission. To the rule there may be rare exceptions. 454</p> <p>5. Argument of Counsel. In the closing argument counsel for plaintiff used improper language; the court promptly checked counsel, and instructed the jury to disregard the improper argument. There was testimony sufficient to sustain the verdict, which was not excessive. Held, that in such cases the appellate court will not interfere................................ 454</p>

<p>Application for Writ of Error and Mandamus to Court of Civil Appeals for Third District, in an appeal from County Court of Brown ■County. The case originated in a Justice Court.</p>

The litigation was as to ownership of a tract of 320 acres of land, survey 333, Kinney County, made and patented under bounty warrant number… Held: that James, Chief Justice, was in law disqualified to sit in the said cause because he was interested in the subject matter of the litigation, and that the remaining members constitute a legal and constitutional court to hear and determine the said cause; and that a proper construction of section 11, article 5, of the State…

<p>1. Condemnation Proceedings—Conclusiveness of Judgment-Pleading. A widow brought suit for recovery of town lots, alleging that the defendant, a railway company, had obtained a judgment for the lots for a freight depot against her husband and herself; that she and her husband continued to occupy the lots, and that the railway company had .prosecuted to judgment in theDistrict Court an injunction suit against herself and husband; that subsequent to her husband’s death she had been arrested for contempt in violating the injunction;, and that upon ■a second arrest for contempt proceedings her house had been removed from the lot, the railway thereafter having possession; that the condemnation proceedings “ were illegal,” and the injunction proceedings 41 contrary to law.” The petition also alleged abandonment of the lots as a freight depot. Held, that exceptions to the petition, save as to the right from the abandonment, were properly sustained; there being no allegations showing the invalidity of the judgments attacked; 463</p> <p>2. Limitation. Defendant in condemnation proceedings remained in possession of the land condemned subsequent to the condemnation. Injunction was I perpetuated restraining their further occupancy. Contempt proceedings followed, in which in defense limitation was pleaded. Held, even if such possession can be construed adverse, yet the contempt proceedings concluded the issue as to limitation............................. 463-'</p> <p>3. Condemnation Proceedings only Affect the Use. Condemnation proceedings by a railway company pass only the right to i the specific use for which the property is sought, and it seems that upon a permanent abandonment of the use for which the condemnation was had, the land is relieved of the burden cast upon it, and the owner of the fee is restored to his complete dominion over it............... 464-</p> <p>4. Abandonment of Use—Practice. When property condemned to a special use by a railway corporation has never been appropriated to such use, and there are circumstances ! tending to show that the intention to use it for the special purpose has been permanently abandoned, it would devolve upon the corporation to explain the nonuser, and to show that the abandonment is temporary if in fact it be not permanent................................ 464-</p> <p>5. Owner of the Pee in Land Condemned. Until the property condemned is applied to the use for which it was I taken, the owner of the fee has the right to the possession and enjoyment.............................................................. 465</p>

<p>1. Misjoinder of Actions and Parties. Action of trespass to try title against railway company. The defendant, in cross-action, asked that the land sued for be condemned as right of way and depot grounds. It also alleged the execution of two bonds by parties named, conditioned that the obligors would procure depot grounds at Stephensville and right of way through Erath County; asking that the obligors be brought in as defendants, and for judgment for amount ascertained upon condemnation, etc. These obligors demurred, and among other grounds of demurrer urged that the pleading by the railway company “ was insufficient to maintain the action sought to be maintained against them on the two bonds sued upon, or to make these defendants parties to this suit.” Held: 1. The demurrer raised the question of misjoinder.......... 466 2. The objection was well taken; as the recovery sought upon the bonds was entirely different from that sought by plaintiffs against the defendant. The latter was in tort, the former on contract...........467</p> <p>2. Application for Writ of Error. It seems that in acting upon an application for writ of error only the grounds of complaint urged will he considered. See example....... 467'</p>

The conclusions of fact filed in Court of Civil Appeals are here given: 1.

Eeeoe to Court of Civil Appeals for Fourth District, in an appeal from Bexar County. The by-laws of the building and loan association, so far as involved in this case, are given in the case of Abbott v. Building and Loan Association, supra. Other facts are given in the opinion.

<p>1. Constitutional Law—Title of Act. The title to an act approved March 28, 1893, is “An act to amend an act to regulate the condemnation of property in cities and towns, for the purpose of opening, widening, or changing public streets, or avenues, or alleys, or for water mains or sewers.” In the act provision was made for condemnation of grounds for “reservoirs or standpipes.” Held, that these subjects were not expressed in the title, and were not covered by the term “ water mains,” and that the act gave no power to condemn for reservoirs or standpipes............................. 486</p> <p>2. Same—Amending Act. The title to the amending act should be construed not only as pointing out the law it was intended to amend, but as stating the subject of the amendatory act in the same terms which were employed in the title to the act amended.................................................... 488</p>

<p>Error to Court of Civil Appeals for First District, in an appeal from Harris County.</p>

<p>1. Testimony Relevant—Fraudulent Combination. In suit by purchasers from an insolvent debtor against a sheriff for ! seizing the property so conveyed, it was in issue that there had been a fraudulent combination between the plaintiffs and the debtor. Held, competent to show the confidential business relations between them.. 494</p> <p>2. Circumstances in Taking Depositions. | A party to the suit testified by depositions. Held, competent on cross-interrogatories to show the manner in which the answers had been prepared and taken down, and as to the persons present at the time of taking the depositions.............................................. 495'</p> <p>3. Officer Taking Depositions Employe of Party Testifying. * It seems that a deposition taken by an employe of the witness testifying in his own behalf, on motion, should be suppressed. But if such deposition is not suppressed, the party offering it is entitled to have it [ read without the discredit which may attach to it in the minds of the jury by proof of the fact that-the officer, by reason of his relations to the parties, was not legally authorized to take it..................... 495</p> <p>41 Incompetent Evidence as to Value. A sale by an insolvent debtor to a creditor being attacked on the ground that the value of the goods was greater than the price allowed and paid: Held, that the valuation made by the debtor in obtaining insur- , anee on the stock prior to the sale was not competent against the pur- i chasing creditor, it not appearing that the insurance had any connection with the alleged fraudulent combination which resulted in the sale of the goods.................................................... 496</p> <p>5. Reading Law Books to Jury. As a general rule it is a matter of discretion with the trial judge to permit or to refuse to permit counsel to read from books of law during the argument. But where the matter read is calculated to have the . effect of evidence, the rule does not apply, and the reading should not I be permitted...................................................... 497'</p>

<p>1. Malicious Prosecution—Facts Negativing Criminal Intent. A tenant having a money claim against his landlord, sold cotton grown upon the land, in which the landlord had one-fourth interest; the proceeds of the sale the tenant held in satisfaction of the claim. This was not a crime, and the facts may be shown in an action for malicious prosecution by the tenant against the landlord, who had caused the tenant’s arrest upon a charge of theft of the cotton; explanatory of the act of the tenant in appropriating the proceeds of the sale of the cotton, and to show malice on part of the landlord................... 499</p> <p>2. Same—Using Criminal Process to Collect a Debt. See facts in which it was proper to charge the jury that “ no one can invoke the criminal law to merely have decided any civil question affecting the indebtedness due from one citizen to another, or any other civil right; and if you And from the evidence that S. knew that 0. did ¡ not steal or embezzle his cotton, but his object in instigating the criminal prosecution * * * was to obtain the payment to him by C. of his part of the rent cotton, then the .defendant (S.) is liable to the plaintiñ" (C.) in damages.”.......................................... 500</p> <p>3. Advice of County or District Attorney. ¡ When honestly sought, and a fair statement is made to the official prosecutor, his advice upon such statement is a defense against an action for malicious prosecution grounded on the advice so given........... 504</p>

<p>Error to Court of Civil Appeals for Fourth District, in an appeal from Guadalupe County.</p> <p>The opinion gives a sufficient statement of the case.</p>

<p>1. Roadbed—Construction of Contract. A contract for the construction of a roadbed for a railway under the supervision of an engineer, at stipulated rates for clearing, excavation, embankments, etc., can not be made to include clearing and grubbing the right of way beyond the space necessary for the roadbed and its support......................................................... 514</p> <p>2. Power of Supervising Engineer. The contract for roadbed included specified prices for items of labor according to profile, plans, and specifications made part of the contract. Under such contract the supervising engineer could only control the work necessary forthe roadbed, and certify labor, etc., upon it. He could not direct other work outside the roadbed and bind his employers thereby. It was error in such condition of facts to instruct the jury that the engineer had power to bind his employers for clearing and grubbing a space greater than necessary for the roadbed and its support ............................................................... 515</p> <p>3. Charge. Where a charge is erroneous or misleading it does not devolve upon the party injured to request its correction in another charge. It is only where a charge is incomplete, but correct so far a.s it goes, that the defect must be sought to be corrected by asking a charge supplying the defects........................................................ 516</p>

<p>Certified Questions from Court of Civil Appeals for Second District, in an appeal from Jack County.</p>

<p>.1. Title in Action for Trespass upon Lands. Possession of land under a claim of title is sufficient evidence of title in a plaintiff to enable him to sustain an action for an injury to the premises. But possession is only prima facie proof of title, and it is competent for the defendant to rebut such presumption by showing that the land, notwithstanding such possession, belonged to another......527</p> <p>2, Documentary Evidence Introduced may be Used by Both Parties. Deeds and patents introduced by plaintiff in evidence for all purposes could be used in behalf of the defendant as if offered in its own behalf. See example........................................................ 528</p> <p>3. Limitation—Exceptions to Statute—Practice. Where facts are established giving title under the statute of limitations, in order to defeat the title so established the burden is upon the adverse claimant to show the disability of coverture or other statutory exception.......................................................... 528</p> <p>4„ Evidence. Plaintiff in suit for damages proved the alleged injury by burning grass upon a survey in which plaintiff, owned the south half. The testimony was insufficient; it devolved upon plaintiff to prove the burning was upon the south half owned by him.......................... 528</p> <p>5. Limitation of Five Years. In action for trespass upon land, where the right to recover depended upon plaintiff proving title by limitation of five years, it was necessary that plaintiff prove that the five years possession, etc., had ended before the trespass; it is not sufficient that the time ended before the trial. 529</p> <p>6. Same—Practice. Where the testimony as to possession or as to the payment of taxes is controverted, or not clear and specific, the issue should be submitted to the jury........................................................ 529</p> <p>*7. Action by Tenant in Common—Abatement. The rule is well settled by decisions of this court, that in a suit to recover damages for an injury to real property all the tenants in common must join; but advantage of the defect must be taken by plea in abatement. In absence of such plea the plaintiff may recover damages in amount proportionate to his interest in the property................ 529</p> <p>8. Tenant at Will—Damages to the Land. A tenant at will has no claim against a trespasser upon the land; the right for damages is in the landlord. A subsequent contract of lease between the parties in which the landlord yielded to the tenant the claim for injuries during the term, will have no effect upon the right of the landlord for injuries during the tenancy at will............... 530</p> <p>Q. Negligence by Railway—Combustible Materials on Track. It is not negligence per se for a railway company to permit grass and weeds or other combustible material to accumulate upon its right of way. In the work of clearing off the right of way, if an employe, under the existing circumstances, acted in a prudent and careful manner in starting a fire (from which damage resulted), the railway would not he liable, although there had been negligence in allowing the grass, ! etc., to accumulate. The facts are to be passed upon by the jury in determining whether proper care was taken.........................531</p> <p>10. Charge—Negligence—Burning Grass. ! In an action against a railway company for negligently permitting the escape of fire from its right of way, to the injury of adjacent lands, the court did not define negligence in its charge to the jury. It was 1 therefore proper for the defendant to request an instruction covering the omission. In this case a charge not accurate was asked, but held sufficient to call the attention of the court to the omission, and thus present the defect for revision on appeal. See example.............. 532:</p> <p>11. Pleading Title by Limitation. It seems that in an action for injury to lands the plaintiff should not be 1 permitted to prove title by limitation without having pleaded it, provided objection be made to the testimony............................ 533</p>

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Dallas County.</p>

<p>1. Railway Company may Extend its Track Across Another. Article 10, section 1, of the Constitution of the State, prescribes, that “ every railway company shall have the right -with its road to intersect, connect with, or cross any other railway, etc., * * * under such regulations as shall be prescribed by law.” This applies to every railway thereafter constructed...................................... 542</p> <p>2. Same—Right of Way. In Revised Statutes, title 84, chapter 8 (Right of Way), articles 4175 to 4193, the regulations governing the rights of the railway companies when one road is extended across another are prescribed. The mode of condemnation of right of way across that of another railway is the same as in crossing other lands...................................... 544</p> <p>3. Same. The jurisdiction of the County Court is invoked in manner prescribed in article 4182, Revised Statutes. This obtains as a tribunal to adjust the differences between the two roads, as in article 4177, and for acquiring right of way, article 4180.................................... 545</p> <p>4. Point of Intersection. In the nature of things, the crossing railway must be built in one general direction, controlled by the character of the country, and the point at which the line intersected the other would be the place of intersection to which the statute applies. In case of contest as to the locality of the crossing, it could be adjusted in the condemnation proceedings. 545</p> <p>5. Disagreement as to Terms. • The application in condemnation proceedings being in accordance with article 4182, Revised Statutes, the County Court had jurisdiction of the matter, and it was not necessary to allege disagreement about the manner and terms of the crossing................................... 545'</p> <p>6. Objection to Commissioners. In article 4202, Revised Statutes, it is prescribed that a dissatisfied party in condemnation proceedings may, within ten days after the decision of the commissioners is filed, file his opposition setting forth the causes of his objection. This not having been done, it will be conclusively presumed that the county judge had performed his duty according to law in appointing disinterested parties as commissioners. An objection subsequently made that commissioners were interested comes too late, when the facts were known before the end of the ten days... 545, 546'</p>

<p>1. Distress Warrant—Petition. ¡ Distress warrant was obtained and issued January 19,1891, returnable-May 11,1891, to District Court Tarrant County, the first day of the- • next term. The writ was levied and returned. May 9,1891, plaintiff ( in distress warrant filed petition. The county in the meantime had been divided into two judicial districts, and it did not affirmatively appear that the petition was filed at the first term after the return of j the warrant. Motion at subsequent term to dismiss was properly overruled . Held, the suit was commenced by the issuing of the distress warrant, the citation, and return. The petition was simply the declaration , of the cause of action in detail, required to be filed before the first ap- ! pearance day. But if the petition be filed before the case is dismissed by the court, there is no good reason why the cause should be dismissed because of delay in filing the petition............................ 552, 553:</p> <p>2. Parol Lease of Land to Begin in Future. A lease for a term not longer than one- year may be made to commence in the future by verbal contract, and will be held binding under the j statute. Bev. Stats., art. 2464 ...................................... 554</p> <p>3. Same—Case in Judgment. ¡ M. by verbal contract leased to Bateman & Bro. a store house, term be- ' ginning December 1,1888, at $400 a month for first year, at $500 a month for next two years, and at $600 a month for next two years, les-' see to give ninety days notice of quitting. B. & Bro. entered, paid the rent as stipulated, and remained one month of the third year, and then assigned for benefit of creditors. No notice of terminating the lease had been given. Distress warrant sued out against trustee for rent for balance of third year. Held, that having continued in possession for second year and part of the third year, Bateman & Bro. were liable for the stipulated rent for the third year; as they had the right to retain the premises for that year, and under the contract they could not surrender or abandon the premises without consent of the landlord, and thus terminate the lease............................... 555</p>

<p>Forfeited Bail Bond—Criminal Case. Proceedings on a forfeited hail bond constitute a criminal case, within the meaning of the Constitution and laws of the State, and a Court of Civil Appeals, having only civil jurisdiction, has no jurisdiction therein............................................................. 557</p>

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Collin County.</p> <p>The opinion gives a full statement of the case.</p>

Certified Questions from Court of Civil Appeals for Fourth District,, in an appeal from Bexar County. The case is an appeal from the District Court. -The cause of action was a money demand in sum of $200.70, evidenced by a promissory note. Suit was begun by petition filed in the District Court of Bexar County for the Forty-fifth Judicial District, on November 11, 1893. The judgment appealed from was rendered November 29, 1893, by said court.

<p>1. Texas & Pacific Railway—Eastern Terminus. The laws under which the Texas & Pacific Railway operates digested. The eastern terminus of the road is at the eastern line of the State of Texas, and no part of the road is in the State of Louisiana. This is not aifected by the provision in the supplementary act requiring that it secure and maintain railway connection between Marshall and Shreveport..................................................... 578, 580</p> <p>:2. Receivership of the Texas & Pacific Railway. The case presented is one in which a receiver was appointed by the Circuit Court of the United States, sitting in and for the Eastern District of Louisiana, to take possession of, operate, and control a railway no part of which was in the State of Louisiana...................... 581</p> <p>S. Presumptions—Jurisdiction. Jurisdiction must depend upon the laws creating and prescribing the powers of the tribunal; and if it attempt to exercise a power not thus conferred, its judgments are not binding. If the fact on which jurisdiction depends is determined by law, then resort to the presumptions ordinarily indulged in favor of the power of a court of general jurisdiction which has assumed to act in a given case is neither necessary nor admissible...................................................... 581</p> <p>4. Conflicting Courts—Jurisdiction. Where one court has assumed the power to act in a given case, every lawful presumption that it did not act without jurisdiction ought to be indulged; but where it is clear that either has acted without lawful power, the other, when called upon to adjudicate the right of litigants, can not lawfully refuse to make inquiry even as to the jurisdiction of the other when this becomes necessary to the determination of the questions before it.............................................. 582</p> <p>5. Jurisdiction of United States Circuit Courts. In a case in which a railway chartered by act of Congress is a party, jurisdiction of a Circuit Court of the United States ought to be presumed, if the action be not one local in its nature, or the relief sought-in whole or in part be not such as can be given only by a court sitting where property is situated through which the court’s judgment may be enforced......................................................... 582</p> <p>6. Receiver, when Appointed. A receiver can not, lawfully be appointed unless deemed necessary for the preservation of property, the preservation or enforcement of rights of persons having claims against it, or to have it applied to some lawful purpose from which it has been or is likely to be diverted........582</p> <p>7. Local Jurisdiction of United States Courts. The intention of Congress to limit the jurisdiction of Circuit Courts of the United States to persons and things within the district [in which the court sits, as well as to restrict their process, whether original or final, to the same territory, is manifested in several statutes. These statutes are cited and discussed...................................... 583</p> <p>8. Jurisdiction of United States Circuit Courts. Circuit Courts of the United States having only such jurisdiction as Congress has conferred upon them, these statutes (cited above) bear evidence of a broad recognition by Congress not only of the impropriety of permitting the adjudication of rights to, or in reference to property situated in one State by a court sitting in another, but also of the propriety of having the rights of citizens adjudicated by courts sitting in the States of which they are citizens or inhabitants........ 584</p> <p>9. Same. Article 738, United States Revised Statutes, amended March 3, 1875, regulates proceedings relative to enforcement of liens against real or personal property situate in the district where suit is brought, and the defendant is a nonresident, and limits the effect of the decrees in ' | such cases to the property within the district. These acts recognize the rule that property, whether real or personal, can be affected only by judgments or decrees of courts sitting within the State in which the property is situated; that jurisdiction over the property, as well as of the litigants, is essential; and that the former can exist only by reason of the fact that the property is situated within the territory over which the court is given jurisdiction, and the latter by virtue of service of process made in the manner prescribed by law............584</p> <p>10. Judicial Districts in Louisiana. By act of Congress, March 3,1881, two judicial districts were created in Louisiana, the courts in the eastern to be held in Hew Orleans. Courts in the other district were held in four places, one at Shreveport. This act also recognizes the fact that all suits of a local nature must be , brought in the district in which the thing to which it relates is situated .............................................................. 585-</p> <p>11. Receiver an Officer of Court—Powers. The rule is well settled, that ordinarily a receiver appointed by a court having jurisdiction to make the appointment is an officer of the court, having only such power as the order of the court under the general principles of law and due course of procedure may confer upon him.. 585-</p> <p>12. Same. From these considerations it must follow, that a court can not confer upon a receiver power outside of the territory over which it has jurisdiction; for its process can not be effective beyond that; * * * and where the process of a court can not go and tie entitled to enforcement and respect, its officers can not have power....................585</p> <p>13. Jurisdiction Ascertained by Power to Enforce. The highest test of the jurisdiction of a court in a given case is found in the answer to an inquiry whether it has lawful power thus to enforce its judgments...................................................... 688</p> <p>14. Same. There are classes of cases in which courts of chancery may, through action on persons over whom they have jurisdiction, indirectly affect title to property, real or personal, situated in a State not within their jurisdiction; e. g., suits for specific performance, enforcement of trusts, relief on ground of fraud, accounting in partnership, etc. But where the suit is strictly local, the subject matter is specific property, and the relief when granted is such that it must act directly upon the subject matter, and not upon the person of the defendant, the jurisdiction must be exercised in the State where the subject matter is situated... 588</p> <p>15. Jurisdiction of Courts of Equity. Jurisdiction of courts of equity over the classes of cases affecting property situated without its local jurisdiction exists only when the relief sought is such that it may be given by the act of the person over whom the court exercises jurisdiction. But if the right arises from the decree and execution of its process, then the court is directly acting upon the thing over which it has not jurisdiction, and in such case the rule is inoperative.............................................. 590</p> <p>16. Cases Discussed. Muller v. Davis, 94 United States, 444; McElrath v. Railway, 55 Pennsylvania State, 189; and Mead v. Railway, 45 Connecticut, 223, discussed ............................................................. 591</p> <p>17. Judicial Acts Affecting Lands. It is conceded by the United States courts, as well as by the State courts, that jurisdiction over real property exists only in the tribunals of the country in which it is situated, and that it can not be taken possession of or sold under the order, license, or decree of a court having jurisdiction only in another State................................... 592</p> <p>18. Judicial Sale—Foreclosure. A decree foreclosing a mortgage, and the process through which it may be' enforced, act upon the property directly; the sale when made is essentially a judicial sale, or sale by the court, not by mortgagor..... 693</p> <p>19. Judicial Sales. In judicial sales, a valid decree, sale by authorized person, and confirmation are ordinarily essential to the right of the purchaser to a conveyance. The deed is but evidence of a right, and unless the court directing and confirming a sale have jurisdiction, the purchaser has no title. These depend upon power over the thing sold....................... 593</p> <p>20. Right to Appoint Receiver. Mo case can arise in which a court will have power to appoint a receiver unless there be property of which the court may take possession through its receiver. And where the property to be administered is ¡ immovable, the power to authorize the receiver to take it into possession necessarily is local in character............................... 594</p> <p>21. Local Jurisdiction. • The line between local and transitory actions in some oí the decided cases seems shadowy, but in no case can a suit the purpose of which is to subject certain property, whether real or personal, to payment of j a debt, or to have it placed in possession of and under the control ‘ of a court for any purpose of administration, be termed alocal action.. 5.94</p> <p>22. Railways, etc., Real Estate. Under the laws of Texas, as well as from the nature of the property itself, a railway, which includes right of way, rails, and all material placed thereon, necessary structures, etc., must be deemed real estate, or immovable property. Rolling stock and other movable property 1 are personal property. It seems that equal reasons exist why the rolling stock, as well as the track, should be under local jurisdiction..... 595-</p> <p>23. Locality of Texas & Pacific Railway. But neither the track nor rolling stock of the Texas & Pacific Railway was in the State of Louisiana........................................ 596-</p> <p>24. Same. But even if the Texas & Pacific Railway Company owned a continuous line from Texas into Louisiana, a court in Louisiana could not, through its officers, cross the State line into Texas, or otherwise send | its process into Texas. Uor can it deliver possession of land in another jurisdiction, which want of power results from absence of jurisdiction over it..................................................... 596-</p> <p>25. Ancillary Jurisdiction. Admission of necessity for the resort to a jurisdiction now frequently termed “ ancillary,” is simply a concession that the tribunal which is in such case termed that of primary jurisdiction is destitute of power I over property situated in another State.............................. 602:</p> <p>26. Same—Source of Judicial Power. One court can not acquire power over property not within its territorial j jurisdiction through the action of another court having jurisdiction where the property is; for the jurisdiction of every court must depend on the law, and can not rest on the friendly action of another court, | which is sometimes termed “ comity.”.............................. 60S-</p> <p>27. Question in Judgment. We are forced to the conclusion that the Circuit Court in Louisiana had : not jurisdiction over property in Texas, such as to confer upon it the power to take possession of and administer the Texas & Pacific Railway, through a receiver or otherwise................................ 603</p> <p>28. Liability of Railway for Acts of Receiver not Legally Appointed. A receiver acting upon a void order must be deemed to have been simply the agent of the railway company, and it is liable for injuries result- | ing while the railway was managed by such person, in all cases in which it would be liable had he been made its agent in the ordinary manner.......................................................... 603-</p> <p>29. Collusion. The power of a court to appoint a receiver is based on the fact of real litigation between the parties, in which it becomes necessary in the opinion of the court to take possession of property to which the controversy in some manner relates, in order to preserve it, or if necessary to administer it for the benefit of all persons interested. If the parties have no real controversy, and desiring no lawful relief institute a suit and have a receiver appointed, * * * such receiver must be treated as the agent of the parties................................... 604</p> <p>30. Consent Proceedings. When a receiver is appointed by consent between the parties to a suit, in order to accomplish a purpose not lawful in itself, the receiver must be considered the agent of the owner of the property................ 605</p> <p>31. Collusive Appointment of Receiver. If a receiver was appointed by collusion of the parties interested in the property, it is unimportant whether the court making the appointment had jurisdiction; for in either case the receiver so appointed will be treated as the agent of the parties............................... 607</p> <p>32. Employes. The rights of an employe of such receiver would be the same as if he had been employed by an authorized agent engaged in the management of the railway........................................................ 607</p> <p>33. Liability of Railway for Acts of Receiver. After the discharge of a receiver against whom suit has been brought, if there be facts to fix liability on a railway company’s property for acts occurring during the receivership, it is proper to make the company a party and continue the litigation ............................ 608</p> <p>34. Case in Judgment. This suit could not be maintained as if against a receiver duly appointed, nor against the acting receiver as agent of the railway. Suit should have been against the railway...................................... 60S</p> <p>35. Limitation—Fraudulent Concealment. Fraudulent concealment of a plaintiff’s cause of action takes the case out of the bar of the statute of limitations. Plaintiff, however, is chargeable for neglect to ascertain the facts or ground of action...... 608</p> <p>36. Deficient Charge of Court. It has been held in a long line of decisions, that a charge correct so far as it applies to the facts, but omitting to state the law applicable to an issue raised by them, furnishes no ground for reversal, unless proper instruction relating to the matter omitted be asked and refused. Whatever exceptions there may be to this rule, none of them embrace a case in which the undisputed evidence establishes the facts to which the omission relates.................................................... 609</p> <p>37. Receivership—United States Statutes. The act of Congress of March 3,1887, relating to Federal receiverships, has no bearing upon suits only against a railway company........... 609</p>

<p>1. Trustee Sales. The Act of March 21,1889 (chapter. 118, Laws of Twenty-first Legislature), applies in terms “to all sales of real estate which may hereafter be made in this State under powers conferred by any deed of trust or other contract lien,” and there can be no reasonable doubt of the intent of the Legislature to make it apply to sales made before its passage, as well as to those afterwards made. The act required such sales to be made in manner prescribed for sheriff sales.................... 611'</p> <p>2. Obligation of Contract—Retroactive Law. A contract securing to a creditor a right to a specific remedy whereby he may enforce a pecuniary obligation without resort to the courts of the country, is not subject to such modifications and changes as may lawfully be made in the ordinary remedies prescribed by law........ 612 ■</p> <p>3. Contract Remedies. That persons may contract for a remedy lawful in itself, but not given by law for the enforcement of a right, will not be questioned. But if a party desires to resort to a remedy existing only by contract, he must take it in accordance with the agreement that gives it; for the Legislature has no power to change the contract..................... 613</p> <p>4. Same. It is obviously true that such remedies as rest on contract alone must he exercised as provided by the contract, or not at all; and it is equally clear that the Legislature has no power to change such a contract, and in its changed condition to make it obligatory on either party, simply because it has no power to make contracts for parties .......'........ 615</p> <p>5. Legislative Power over Remedies. While the Legislature has power to prescribe what process shall be used for enforcement of rights through the courts, and what notice of judicial sales shall be given, it certainly has no power to confer on any private person power to sell the property of another at such time and place and on such notice as it may prescribe, without regard to or in violation of any contract parties may have made....................616</p> <p>6. Same—Case in Judgment. The Act of March 21, 1889, can not be given effect as to contracts executed before it was operative in cases in which the remedy therein prescribed differs from the remedy prescribed by contract. In this case the power to sell required ten days notice of sale, and was executed before the law went into effect...............................617</p>

<p>1. Conclusion of Facts, When Bevised. If there is no evidence to support a finding by a Court of Civil Appeals, its findings maybe disregarded by the Supreme Court; but when there is only a conflict the findings are conclusive........................ 618</p> <p>2. Same—Practice on Application for Writ of Error. Where an- application for writ of error does not attempt to set out the evidence, and it is complained that there was no evidence to sustain some of the material findings, credence must be given to the findings made.............................................................. 618</p>

<p>1. Jurisdiction—Residence of Endorser. Suit on vendor’s lien note payable to bearer. The note had passed by delivery from the payee. This holder endorsed- the note and the bank became holder. It sued the. maker and endorser in the county of the residence of the endorser. The maker by plea contested the jurisdiction of the court over him. Held, the court had jurisdiction of the case, and to foreclose the lien....................................... 619</p> <p>2, Case Qualified. The opinion in Berrendo Stock Company v. McCarty, 85 Texas, 412, was delivered without reference to the Act approved April 1, 1887. This act provides for nonjudicial forfeiture, by the Commissioner of the General Land Office endorsing on the obligation of the purchaser in default the words land forfeited.” The decision is not conclusive of the matter....................................................... 619</p>

<p>Error to Court of Civil Appeals for Third District, in an appeal from. Travis County.</p>

<p>Error to Court of Civil Appeals for First District, in an appeal from Anderson County.</p>

<p>Description—Herd of Cattle—Increase. A mortgage was executed upon “ My herd of fifteen hundred cattle, located upon my ranch pasture in McCulloch County, Texas, each and all of such cattle being marked and branded with the following mark and brand, F+H, and consisting of bulls and breeding and grazing, cattle of one year old and upwards.” Subsequently the mortgagor executed another mortgage upon his entire herd. In a contest between the two mortgagees it appeared that at the date of the first mortgage there were in the herd 200 calves under one year old, and that at the trial the increase numbered about 1800 head. Meld: 1. The description in the first mortgage included the increase.............................................................. 638 2. The description did not include the calves under one year old, and they were subject to the second mortgage....................... 640-</p>

Justice Williams did not sit in this case. This is an application for writ of error to revise the judgment of the Court of Appeals in a second appeal. The report of decision on the first appeal is in volume 1, Texas Civil Appeals, 214. The decision on the second trial and appeal corrected the foreclosure decree so as to relieve the homestead from its effect. In petition for writ of error the following grounds were relied on: 1. That the court erred in holding that.

<p>1. Boundaries of Cooke and Archer Counties. A careful examination of the several acts of the Legislature which throw light upon the question, satisfies us that it is impossible to determine from that source whether or not any portion of the territory now enclosed within the limits of Archer County were ever embraced within the boundary originally assigned to Cooke County. Statutes on the subject discussed..................................................644</p> <p>2. Recitals in Patent. Patent issued in 1855. It recited that the land was situated in Cooke County. Deposition of the Commissioner of the General Land Office stated that the certificate was located in Cooke, now Archer County. In absence of any other testimony; a deed for the land (now in Archer County) recorded in Cooke County January 10, 1857, will be held to have been properly recorded; and a copy admissible in evidence under the statute..................................................... 646</p>

<p>Certified Questions from Court of Civil Appeals for Fifth District,, in an appeal from Ellis County.</p>

<p>Certified Questions from Court of Civil Appeals for Second District, in an appeal from Bosque County.</p>

<p>1. Constitution—Insurance Statutes. Article 2953, Revised Statutes, prescribes that “ in all cases where a loss occurs and the life or health insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder' of such policy, in addition to the amount of the loss, 12 per cent damages on the amount of such loss, together with all reasonable attorney fees for the prosecution and collection of such loss.” This statute, in providing for the recovery of damages or attorney fees, is not violative of the Constitution of this State nor of the United States, and it is a valid law........................................................ 657</p> <p>2. Same. All persons of its class are treated alike under like conditions, and the act is not obnoxious to section 1 of the Fourteenth Amendment to the Constitution of the United States................................... 65T</p> <p>3. Same. Nor is the act in conflict .with article 1, section 3, of the Constitution of the State, relating to the equal rights of freemen. The law applies to corporations which have only such powers as are granted them; the rights extended are protected....................................... 657</p> <p>4. Same. Nor is the act in conflict with section 13, article 1, of the Constitution, prohibiting excessive fines, etc. The 12 per cent is given as damages for failure to comply with the contract, and the attorney fees allowed as compensation for the costs of collecting the debt. These are imposed only in case unsuccessful litigation is indulged in by the insurance company...................................................... 658</p> <p>5. Same. Nor is the law violative of section 19, article 1, of the Constitution, guaranteeing against the seizure, etc., of property, etc., except by due course of the law of the land. This law, enacted by the Legislature in exercise of its constitutional powers, which affords a hearing before it condemns, and renders judgment after trial, is not in violation of this clause of the Constitution....................................... 658</p> <p>6. Same. The act is not violative of section 16 of article 1, against special laws, etc. It is not special, as it applies to all cases coming under its provisions; and it does not regulate practice except as the awarding of costs may be so considered...............:.......................... 658</p> <p>7. Same. The law does not impose penalties for breach of the contract, but attaches charges as costs in cases of the unsuccessful litigation. There is nothing prohibiting the exercise of such power by the Legislature in enacting the law. The good or bad policy of the law are legislative questions over which the courts have no jurisdiction................ 659</p> <p>8. Assignments of Error. See assignments of error which are distinguished, some as sufficient and others as being too general.......................................... 660.</p> <p>9. Certified Questions. Under section 35 of the act organizing Courts of Civil Appeals, as amended May 2, 1893. these courts are required to certify the very question of law to be decided. See illustration of violation of this rule................................................................ 660</p>

<p>1. Questions Certified to Supreme Court. j The statute prescribes that “ whenever in any case pending before the Court of Civil Appeals there should arise an issue of law which said court should deem it advisable to present to the Supreme Court for adjudication, it shall be the duty of said court to certify the very question to he decided to the Supreme Court,” etc. This statutory rule is disregarded when the matter certified is whether a demurrer was properly sustained in the trial court in a case involving many issues...... 062</p> <p>2. Same—Practice. Whether a petition is sufficient to maintain an action is a question of law; but as is frequently the case the decision of that question involves the decision of many and difficult questions of law, and in order that the time of this court may not be taken up in deciding questions about which a Court of Civil Appeals may have no doubt, and desires no decision, these courts are required to certify—to make certain or definite—the very question to be decided. It was never intended that this court on certificate should determine what questions of law were involved in a cause and then decide them..........................663</p> <p>3. Same. To decide upon questions involving the entire record, jurisdiction was conferred on Courts of Civil Appeals, and neither the statute nor the Constitution contemplates the exercise of such appellate jurisdiction by this court so long as the case remains undecided by the Court of Civil Appeals...................................................... 663</p> <p>4. Cases Discussed. The numerous cases in which certified questions were discussed by the Supreme Court of the United States under laws authorizing such jurisdiction, are reviewed, and the practice of that court followed........ 664</p>

<p>1. Partnership, Relation to its Members. For partnership debts the members of the firm are liable jointly and severally, and the law recognizes no personality in the partnership other than that of the persons who compose it....................... 668</p> <p>2. Right of Member as to Payment of Firm Debts. It is the right of a member of a partnership to have the common property applied to the firm debts; other partners can not deprive him of such right.......................................................... 668</p> <p>3. Creditors Have no Lien. That a partnership creditor has no specific lien, either legal or equitable, upon partnership assets, any more than any individual creditor has upon the estate of his debtor, is so firmly established that citation of authority in support of the proposition is useless................. 669</p> <p>4. Administration of Assets by Courts. When the property of a partnership passes into the custody of a court for administration, as in case of bankruptcy or assignment made by an insolvent firm, then the court will administer it as was the right of the several partners to have it administered while controlled by themselves .............................................................. 669</p> <p>5. Parties Selling Out—Rights. One partner may in good faith convey his interest in the firm assets to another, and thereby all his equities in relation to the application of firm assets to its liabilities are lost................................ 670'</p> <p>6. Dissolution, Effect of. Upon a dissolution of an insolvent firm, the members could lawfully partition the assets among themselves in proportion to the several shares. Such act of itself is not fraudulent, for the property in the hands of each partner would be subject, as before, to the firm debts........... 670</p> <p>7. Case in Judgment—Mortgage by Firm to Secure Individual Debts. A firm of two members equally interested had assets, one-half of which exceeded the individual debt of either member. Being pressed for binds to make payment of maturing debts, the firm executed a deed of trust securing their individual debts by preference, the other creditors to share equally. The individual debts were for funds which went into the firm business. Held, that the mortgage was valid; the firm had the right when fraud was negatived............................. 671</p>

Certified Question from Court of Civil Appeals for Third District, in an appeal from Travis County. The statute involved in this litigation is the Act of April 5, 1889, relating to the purchase of scrap lands.

Certified Question from Court of Civil Appeals for Second District, in an appeal from Jack County. Justice Stephens, having been of counsel, did not sit in this case. This is a suit for the trial of the right of property, in which claim was. made by Martin et al. to property attached under a writ in favor of Hartnett & Co. against one A. J. Birdsong.

<p>Certified Questions from Court of Civil Appeals for Third District, in an appeal from Llano County.</p>

<p>1. Fact Case—Construction of Power. See a power of attorney, general in its nature, and which general powers are not limited by other clauses therein .............................679</p> <p>2. Subscription. The purpose of a suoscription as between parties to it and a third person, who on the faith of it may render services contemplated by it, but without further contract, is to ñx the sum for which each subscriber will be liable; but the fact that a subscription may have been made or is in contemplation when power is given to an agent to make a contract to which the subscription relates, can not of itself operate as a limitation of the power of the agent............................ 680</p> <p>3. Same—Security. The clause “And in consideration of the premises and the contract for the grading of said road to be entered into by our said attorney, we hereby agree and obligate ourselves respectively to secure our subscription heretofore or hereafter to be made for the grading and extension of the aforesaid road,’’ etc., did not restrict a general power to said attorney to contract for the grading, etc. The contract to guarantee the subscription did not affect the general power........................681</p>

<p>Certified Question from Court of Civil Appeals for Fourth District, •in an appeal from Wilson County.</p>

In the Court of Civil Appeals it was held, that “ There can be no doubt under our decisions that a debtor in failing circumstances can… Held: that “ There can be no doubt under our decisions that a debtor in failing circumstances can give a valid mortgage on so much of his property as may be necessary to secure the bona fide debt of a creditor; and we have seen no Texas case where it was held that a mortgage made directly to a creditor who had accepted the same could be…

<p>Guaranty—C onstr uction. Parties executed the following guaranty: “ Know all men by these presents, that we,' * * * in consideration of goods sold and to be delivered to A. E. Krempkau, of city of Laredo, by William J. Lemp, * * * do hereby guarantee full payment to said Lemp of the value of all goods sold and delivered since the first day of March, 1889, or that may be hereafter sold and delivered to said Krempkau, not to exceed, however, the sum of $3000." Executed March 25, 1889. Goods to amount of over $8000 at various times had been sold by Lemp to Krempkau, and there remained unpaid a balance of $1304.60, for which suit was brought upon the guaranty. Payment was resisted upon alleged ground that the guaranty only extended to the amount of $3000 of goods. Held: 1. The meaning not being evident whether the limitation, “ not to exceed, however, the sum of $3000,” qualified the words full payment, or value, it was a case proper to resort to parol evidence for the construction of the instrument.................................. 692' 2. Circumstances and declarations are competent to show the nature of the contemplated transaction evidenced by a written contract...... 693-3. Testimony tending to show the intention of the parties appearing in the findings of fact by the trial court on issue of fraud, such condition of the record does not prevent the application of the rule, that in absence of a statement of facts it will be presumed, on appeal, that all facts necessary to support the judgment were proved, and that such facts had been adduced in support of the judgment for the plaintiff on the guaranty ....].................................................. 693-4. Delivery and acceptance of the guaranty did not need testimony other than thejsonibnts of the paper................................ 693-</p>

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Fannin County.</p>

<p>Certified Questions from Court of Civil Appeals for Third District,, in an appeal from Runnels County.</p>

<p>Venue.</p> <p>Suit in District Court on three notes, two of them payable in the county where suit was filed; the third note named no place of payment. The defendants resided in another county, and pleaded their privilege to be sued upon the third note in the county of their residence, and they pleaded to the jurisdiction of the court, as the other two notes did not amount to $500. Held, that the suit was properly brought, and in order to avoid multiplicity of suits it was proper to embrace the third note in the suit..................................................... 706-</p>

<p>Certified Questions from Court of Civil Appeals for Fifth District, in an appeal from Leon County.</p>

<p>Error to Court of Civil Appeals for Fourth District, in an appeal from Webb County.</p>