Volume 87 — Texas Reports

<p>1. Evidence Relevant. Action in trespass to try title. The plaintiff exhibited title to the lot in controversy from one who had owned and used it as a business homestead as liquor dealer. The defendant offered in evidence attachment issued against vendor of plaintiff three days subsequent to the deed, levy upon the lots, judgment and decree foreclosing, order of sale, sale, and the purchase by defendant and deed by sheriff to him. It was error to exclude this testimony on ground that it was irrelevant, as attacking the sale of the business homestead....................... 2</p> <p>2. Sale of Homestead. If the sale of the business homestead on November 17 was intended to pass the title to it, the lot could not have been such homestead on the 20th of November, when the attachment was levied.................. 3</p> <p>3. Fraud—Evidence. Issue that a sale of business homestead was fraudulent, attacking the sale. Evidence was erroneously excluded as irrelevant in behalf of a purchaser under subsequent attachment proceedings, ‘ that the conveyance was made for the purpose of defrauding his (vendor’s) creditors, and that this was known to the vendee, and that no consideration was paid, although the deed recited a part payment in cash.”4</p> <p>4. Colorable Sale of Business Homestead." If the deed for the business homestead was not made with intent, as between the parties to it, that thereby title and right to the property should vest in the vendee, in accordance with its terms, but was made for the purpose of giving apparent right only for the purpose of protecting it against the claims of the vendor's creditors after he should cease to use it for the purpose that gave it exemption, then it was subject to seizure to pay his debts when the exemption ceased. If such deed was a security for debt, a mortgage, the lot was subject to execution ; and whatever the effect intended as between parties, if it. was made for the purpose of hindering or delaying the creditors of the grantor, effect will be denied and the facts may be shown............ 4, 5</p> <p>5. Error in Excluding Evidence. If evidence was offered relevant to a material issue, and is improperly excluded by the trial court-, it becomes the duty of the appellate court to reverse the judgment if the rejected evidence might have changed the result.......................................................... 6</p> <p>6. Pleading—Fraud. In trespass to try title the defendant pleaded not guilty. Under this it was competent for defendant to prove fraud in the title of the plaintiff without specially pleading it; for under the plea of not guilty defendant is entitled by evidence to present any issue of fact that would defeat plaintiff’s right to recover..................................... 6</p>

<p>1. Negligence, Stipulations Against. A telegraph company can not impose terms upon its patrons relieving itself from liability for negligence of its servants in failing to deliver messages with reasonable diligence.................................. 11</p> <p>2. Notice—Telegram. A dispatch, “ Grace is very low; can you come and bring Maud?” signed “Kate,” was on its face sufficient to notify the telegraph company that the plaintiff (the addressee) had a serious interest in the condition of “ Grace,” and of relationship of the parties named to each other.............................................................. 11</p> <p>3. Damages—Breach of Contract. Adhering to the rule in Hadley v. Baxendale, 9 Exchequer, 341, the court adds: “ It is not necessary that the injurious result will surely follow from the breach of contract or tortious act, but it must be such as might be anticipated as a probable consequence thereof.”............ 12</p> <p>4. Notice from Words of Telegram. While the words of the dispatch charged the telegraph company with knowledge of the serious illness of the party named as ill, and of relationship of the parties, they did not charge it with knowledge of the death of Grace, or that she had a husband who probably would have delayed the funeral until plaintiff’s arrival. Damages for result of these causes (distress for not being able to attend the funeral, etc.,) can not be regarded as contemplated by the parties, looking only to the face of the dispatch............................................. 13</p> <p>5. Postponement of Funeral. Mental anguish followed inability to attend funeral of a relative. The telegraph company had been negligent in delivering a dispatch announcing the serious illness of the deceased. Plaintiff could not have attended the funeral had the delivery been prompt, and it was insisted that a postponement could have been secured until such time as the addressee could have arrived. Held, that damages for failure to secure a postponement of the funeral were too remote, and could not be considered as in contemplation of the parties, from the face of the dispatch .............................................................. 13</p>

<p>1. City May Sue to Collect Taxes. A city incorporated under the general law for the incorporation of cities and towns of one thousand inhabitants has the right to maintain a suit to recover a personal judgment for the ad valorem taxes due. and also to foreclose the lien upon the particular property upon which the tax is assessed ......................................................... IS</p> <p>2. Void Tax Sale—Equities. That a void tax sale had been made at which the city was purchaser, would not preclude the right of the city to such personal judgment and foreclosure.................................................... 19</p> <p>3. Sale Under City Tax Laws. Article 447, Revised Statutes, applies to tax sales the equitable rule that where a purchaser at a void sale has discharged a lien upon the property, the owner will not be permitted to recover the property without first paying the sum applied to the discharge of the lien. It was also within the power of the Legislature to require the payment of all taxes due upon that property as a condition to the right of the delinquent to set up defects in the title of the city purchasing at its own tax sales............................................................... 19</p>

In the petition for writ of error, jurisdiction of the Supreme Court was claimed “ by virtue of article 1011 of the Revised Statutes of Texas, as amended by an act approved April 13, 1892, and section 5 of an act approved April 13, 1892, entitled, an act to organize the Courts of Civil Appeals, etc., both of said acts being acts of the Legislature, being chapters 14 and 15, General Laws of the first called session of 1892.” The litigation involved the validity of the statute…

<p>1. Variance Immaterial. That an agent to sell land contracted it to a purchaser at slightly more onerous terms than reported by the agent to the principal, is not a matter of complaint by the purchaser; and there being evidence tending to show ratification of the acts of the agent, a verdict should he sustained finding such ratification................................. 26</p> <p>2. Agent’s Bight to Maintain Action. The general rule is that one who contracts as agent can not maintain an action in his own name and right upon the contract. To this rule are conceded exceptions, (1) where the agent contracts in his own name; (2) where the agent does not disclose his principal, who is unknown; (3) where by the usages of trade the agent is authorized to act as owner of the property; and (4) where the agent has an interest in the subject matter of the contract; and in this case whether he professed to act as agent or not............................................... 28</p> <p>3. Case in Judgment. Rogers and wife owned certain city outlets. They placed the land in Dowell’s hands to be sold, they to convey to such purchaser as Dowell should indicate. Dowell to receive 2% per cent commissions and all above a stated price. Dowell made a contract with Tinsley at a price aggregating $900 above his limit. Tinsley failed to comply with the contract, although Rogers and wife were ready to convey upon the terms Dowell had agreed upon. Dowell sued for the excess over the limit. Rogers testified that the land was of equal or greater value than the amount Tinsley had agreed to give. Held, that Dowell having shown only an interest in the proceeds of the sale not made, did not show an interest in the property, and could not recover against Tinsley............................................................ 29</p> <p>4. Measure of Damages. In such suit it was not alleged that at the time of the default by Tinsley the land had fallen in value below the price agreed to be paid; for that cause the demurrer should have been sustained...................... 32</p>

<p>1. Right to Impose City Taxes and Assessments. A city or town has no inherent right to assess upon property abutting on a street the cost of the improvement of the street. Such power must be given by its charter or some law of the State. And in the exercise of the power when conferred the requirements of the law must be strictly followed, or the assessment will be void................... 36</p> <p>2. Enactment of City Ordinances. The city charter empowered the city council to grade * * * any street, etc., “ whenever by vote of two-thirds of the aldermen elected they may deem such improvement for the public interest.” This did not impose upon the city council as a prerequisite to such action a formal declaration that such improvement was for the public interest. Action taken towards such improvement evidences that it is so deemed. 36</p> <p>3. Special Laws. A city ordinance providing for improvement of a street, and imposing taxes to defray the cost, is not a special law within the meaning of article 3, section 57, of the Constitution. No notice of such action is required other than that prescribed by the charter................... 37</p> <p>4. Practice—Costs. Where on appeal the judgment below is reversed and judgment rendered not for same amount nor of same nature, it is error to impose costs of the appeal upon the appellant and the sureties upon the appeal bond.. 37</p> <p>5. Interest, when Allowed. A city ordinance imposed assessments for street improvements, payable in yearly installments. Interest was collectable. From this condition interest would not be allowed upon the installments before maturity.. 38</p> <p>6. Practice in Supreme Court—Error not Assigned. When it devolves upon the Supreme Court to enter such- judgment as the District Court should have entered, an erroneous judgment will not he entered because the point of objection had not been assigned. See example........................................................ 38</p>

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

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

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

In the petition for writ of error it was complained of rulings of Court of Civil Appeals: 1. “ The court erred in not holding as reversible error, and in finding as a fact and as a matter of law, that all of the defendants were bona fide purchasers for value from the mother of the plaintiffs, without notice of plaintiffs’ equitable title as heirs of their deceased father, David H. Brown, to his one-half of the community property of the estate of their father and mother.” 2.…

Original Proceeding in the Supreme Court against the Commissioner of the General Land Office, to compel the issuance of patents upon surveys made under a Confederate land certificate.

<p>Error to Court of Civil Appeals for the Second District, in an appeal from Wichita County.</p>

<p>1. Receivers in United States Courts—Discharge. When a receiver appointed by a court of the United States is by that court discharged, and the property delivered over according to the orders of the court, the official existence of the receiver ceases; and suits pending against him in the State courts, upon a plea of the discharge, must be abated............................................... 82</p> <p>2. State Legislation—Receiverships. The several acts of the Legislature upon the subject of receivers do not purport by their language to affect receivers appointed by the Federal courts, in their official capacity; and courts will construe them so as to embrace such objects as the Legislature had the authority to legislate upon. These acts were not intended to affect the procedure of Federal courts as to receivers appointed by them....................' 82</p> <p>3. Legislative Preference of Claims. Section 6 of the “ Receivers ” Act, chapter 59, Acts of Twenty-first Legislature, page 55, does not give to the holder of a judgment rendered in a State court for personal injuries against a receiver acting under appointment by a Federal court, a lien upon the corpus of the property, as against a prior mortgage to secure bonds. Having no lien, the property passed free of lien to the purchaser under foreclosure sale in the receivership proceedings............................................ 82</p> <p>4. Case Adhered to. Giles, Receiver, v. Stanton, 86 Texas, 620. adhered to, as to rights of mortgagee of railway, as against claims for personal injuries......... 83</p>

<p>1. Description in Deed—Bounty—Headright. Under a deed for land patented under a headright a recovery can not be had in action for land patented under a bounty warrant. In this case it appeared that a patent upon a headright and a bounty warrant for 1280 acres each had been granted to same person upon lands in same county and adjoining each other.................................... 88</p> <p>2. Estoppel—Recitals in Deed. Two parties claimed a tract of land, each an undivided one-half under same source. To supply defects in the title one of the claimants obtained a deed from the heirs of the original grantee, they releasing their claim in it to the two claimants. This release recited that the grantors were the heirs of the said grantee. Under such facts, persons holding under the active claimant who had obtained the deed were esestopped to deny that the makers of the deed were the heirs of the original grantee, as against the plaintiff holding under the other claimant.. 89</p> <p>3. Delivery of Deed. A deed on its face conveyed the land jointly and equally to Cook and Spofford. Cook obtained the deed but claimed the entire tract under it; held, that the delivery to him enured to the benefit of both grantees. The title having vested in both by the delivery of the deed, Cook could not impose conditions upon Spofford so as to defeat the operation of the deed upon its delivery; e. g., that his cotenant pay half the expense of obtaining such deed..................................... 90</p>

<p>1. Common Source of Title. The rule as to the common source of title is that when the plaintiff has . proved that he and the defendant claim title to land from a common source, and that of the two titles emanating from that source his is the superior, he shows a prima facie right to recover; and it may be conceded that it is a rule of evidence and not of estoppel................. 92</p> <p>2. Same—Defense. Since the plaintiff in trespass to try title must prove his title in order to recover, it would seem that when he has shown title under the common source, that proof by defendant, however made, that the common grantor had no title ought to he a defense; but evidence merely of title in some one, anterior to the conveyance of the common grantor, does not make such proof. See example................................. 93</p>

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

<p>Unfenced Track Evidence of Want of Care. A receiver having exclusive control and management of an unfenced railway is liable for the value of cattle killed on it by cars, as would be the railway company, without further proof of negligence........... 100</p>

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

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

<p>1. Parties—Foreclosure—Removal of Cloud. While it is the general rule that a claimant of land under a different title from that under which the mortgagor held is not a proper party to a foreclosure suit, yet where it may be necessary in order to render a sale available, to remove a cloud from the title, it is allowable to join in the foreclosure suit the parties holding the adverse claim, and to obtain a decree condemning such title. See example.............Ill</p> <p>2. Same. Such proceeding is analogous to a suit in which a creditor seeks to have a fraudulent conveyance set aside in order that property so conveyed may be sold at a fair price. In such suit the adverse claimant is a proper and necessary party......................................... 112</p> <p>3. Res Adjudicata. See example where judgment condemning title to land against the maker and the payee of vendor’s lien notes was not conclusive against the bona fide holder of such notes not a party to the suit................. 112</p>

<p>1. Practice—Certifying Questions to Supreme Court. Under the statute authorizing issues of law arising in cases before a Court of Civil Appeals to be certified to this court, the very question to be decided must be certified; and it was never contemplated that practically all of a complicated case should be so certified................114</p> <p>2. Same. A statement of the pleadings, and of numerous questions arising, with questions involving matters of law and of fact; of pleadings, of evidence, of construction of clauses in an insurance policy, of mode of empanelling jury, etc., can not be considered as a compliance with the statute. The United States statutes formerly in force were as broad as that now in force in this State, and under those statutes such certificates as that now in question have been constantly refused consideration................................................................ 114</p> <p>3. Certifying Questions. It is not held that several questions of law may not be certified when essential to the decision of a case; but we do wish to be understood to hold that none other than purely questions of law can be considered; that these must be clearly stated, and that in no case does the statute contemplate that an entire case, with questions controlling and dependent, in effect be thus transferred to this court for decision............ 115</p>

<p>1. Questions Certified—Practice. A Court of Civil Appeals certified the question: “ Under the pleadings and evidence as stated, did the court err in instructing the jury to return a verdict for defendant?” A synopsis of the pleadings and of the evidence accompanied the question. Held, this is the whole case, on law and fact, and can not be considered.........................116</p> <p>2. Same. A hill of exceptions to the ruling of .the trial court upon the evidence is certified, with question as to the correctness of the-ruling of the trial court upon it. Held, that the question is one of mixed law and fact, and can not he considered, even if all the testimony in the case was certified........................................................... 116</p> <p>3. Same. Five charges are set out as having been asked by the plaintiff and refused by the trial judge, with the question-, “ Do any of the special charges requested announce correct propositions of law in this case; and if so, which of them should have been given in charge to the jury ?” Held, that this does not state “ the very question to be decided by the Supreme Court,” and it can not be considered....................... 117</p>

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

<p>1. Private Corporation—Contract. A contract made by a number of stockholders in a corporation, by which they transfer a controlling amount of the stock in consideration of work, etc., is not a contract with the corporation; even though it was stipulated in the contract that the by-laws of the company should he altered, as a part of the contract.................................... 130</p> <p>2. Paid.up Nonassessable Stock.The words paid up nonassessable stock have a different meaning from non-assessable stock. The latter may mean stock upon which nothing has been paid, although not legal under our State Constitution. But “paid up and nonassessable stock” can only mean stock that is made nonassessable by reason of the fact that the amount for which it calls has been fully paid.................................................. 131</p> <p>3. Same—Construction. See contract-held to obligate the return of stock of the concern actually paid up and therefore nonassessable. Such stock can not be created by vote of board of directors; such action is forbidden by the Constitution of the State, and would be null and void...................... 131</p> <p>4. Board of Directors. A director is without authority to act as such in a matter in which his interest is adverse to that of the corporation. It seems that acts of directors so disqualified would not bind the corporation.............132</p>

<p>Error to Court of Civil Appeals for Third District, in an appeal from Bell County.</p> <p>Justice Key, of the Court of Civil Appeals, dissented from the judgment in that court.</p>

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

<p>1. Presumptions—Recitáis in Deed. Sale by widow and her daughter of land that' was community property. They claimed the land as sole heirs of the husband, and the sale was made many years after his death. In suit by vendees of other children of the marriage, the purchasers from the widow set up as defense her sale as marital survivor. Held, the deed reciting that the grantors were the heirs, and that as such they sold the land, the assumption that the widow sold as surviving wife is excluded................... 143</p> <p>.2. Limitation—Tacking Possession. The defendant and its vendor together had had possession long enough to confer title by limitation, but the possession of the defendant was adverse to its vendor until less than one year before suit was brought. Held, that limitation of five years was not made out, as its possession was adverse against the recorded title held by its vendor............. 143</p>

<p>Liability of Railway for Act of Employe. A brakeman on a freight train in line of duty opened a switch, and leaving it open fell asleep. A passenger train was diverted from the main track by the open switch, and a collision ensued. Plaintiff, who was conductor on the passenger train, leaped from it to avoid approaching danger, and was injured. It seemed that the inefficiency of the brakeman was known to the company. Held, that the railway company was liable for the injury............................................ 145</p>

<p>1. Common Source of Title—Practice. The theory of the doctrine of common source of title is, that proof of a claim of title by one under another is prima facie evidence as against the claimant that the title was at one time in that other; so that when the plaintiff shows that he has a valid chain of title from a certain grantor, and that the defendant claims under the same grantor, without proving what the defendant’s title is, he shows prima facie that he is owner of the land; and it then devolves upon the defendant to show the superiority of his own title. See example....................... 147</p> <p>2. Fact Case. It was agreed upon the trial that plaintiff and defendant claimed under common source. Plaintiff then proved levy of attachment upon the land in suit against the common source, judgment, foreclosure, sheriff sale, and deed for the land to plaintiff. The defendant introduced no testimony. Held, error in the trial judge to instruct a verdict for defendant ............................................................ 148</p>

<p>Error to Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>Judgment for $4500 against the plaintiff in error for negligently causing death of the mother of the plaintiffs. The judgment was affirmed by Court of Civil Appeals.</p> <p>The opinion gives a statement of the case.</p> <p>Upson & Bergstrom, for plaintiff in error, argued: The main question presented on appeal is the measure of damages, if any, the plaintiffs are entitled to recover, and appellant contends that appellees’ pleading, as well as the charge of the court, is based upon the erroneous theory of the measure of damages they are entitled to recover.</p> <p>Appellant contends, that the true measure of damages is such an amount of money as will compensate them for the loss they have sustained by reason of the death of their mother; that is to say, such a sum as deceased could probably have earned by her mental or bodily labor during the remain dev of her life, whether such earnings were devoted to the support of her children or were added to her property and tended to increase her estate which her children had a right to inherit upon the death of their mother; and for the purpose of enabling the jury to arrive at the proper measure of damages, it was competent to show the age of the deceased, her habits, her occupation, if any, and her ability to earn and accumulate money and property; and it was immaterial whether such earnings were being then devoted to the support of the plaintiffs or whether they were added to the estate.</p> <p>The lower court, however, submitted the cause upon the theory that the plaintiffs’ damages were to be measured by- the pecuniary aid and support which they had a right to expect to receive from their mother during the balance of her lifetime, judged by sums of money and articles of value which she had been furnishing them prior to her death, regardless of the question whether such articles of value and money were furnished them out of her personal earnings or the principal or income of her estate; and that conclusion is arrived at from the proposition that the defendant company had no right to show, in diminution of damages, that such contributions were derived solely as income from deceased’s property, and that said property which had produced the income vested in the plaintiffs by the will of the deceased.</p> <p>The proposition is not denied, that where a railway negligently causes the death of a person, it is bound to respond in damages to his children such an amount of money as the deceased could have earned during the balance of his life and to the extent it would have increased the estate of the deceased, and that such damages could not be diminished by showing that such surviving children received a direct benefit by the death of the injured person, and the immediate inheritance of his property or otherwise; but that is not the question presented in this case. The sole question is, Are the surviving relatives limited in their recovery to such sums of money as the deceased would have earned by her mental and bodily labor during the balance of her life, less the amount thereof which she would have used for her own support ? This we contend must be answered in the affirmative and must require a reversal.</p>

<p>1. Freight Trains—Passengers—Notice. A railway company has the right to carry passengers and freight by different trains, and when such provision is made the conductor and brakemen have no implied authority to receive passengers upon freight trains; it is not within the scope of their authority. When one gets on a train made up exclusively of cars appropriate alone to the carrying of freight and the employes on such train, he must take notice of the fact that the train is not provided for passengers................161</p> <p>2. Conductor and Brakeman on Freight Trains. A conductor of a freight train, made up of cars suitable alone for carrying freight, without authority of the railway company'expressly or tacitly given, can not receive passengers upon such train and bind the railway for the risks of transportation. Such assent may be inferred if the railway company permits its freight trains to carry passengers, or if the servants carry passengers and such acts are known or should ' be known by the management of such railway....................... 164</p> <p>3. Fact Case. See facts which fail to establish that the injured party upon a freight train was a passenger, or that the act of a brakeman causing the injury was in line of his duty, so as to bind the company for his wrongful act. 165</p>

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

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

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

<p>1. Judgment Lien—Indexing—Names of Parties. Judgment was rendered in favor of ‘D. & A. Oppenheimer.” Indexing an abstract of the judgment the names of the plaintiffs were given “D. & A. Oppenheimer.” Held, that it was a compliance with the statute, equally as if the names of both plaintiffs had been given..... 177</p> <p>2. Community Property—Presumption. Purchase was made by the wife, and for her separate estate, she giving her note for the purchase money and taking deed in her own name. Held, in favor of a purchaser under execution against the husband, that the land was community property. Adhering to Cook ,v. Bremond, 27 Texas, 457................................................ 178</p> <p>3. Notice from Recorded Deeds. Subsequent to. the record of the abstract of the judgment the husband and wife conveyed the land, the wife’s privy acknowledgment appearing on the deed. The record of this deed and acknowledgment was not notice of the wife's claim to the land, affecting purchaser under the judgment...................................................... 178</p> <p>4. Testimony Relevant. The purchaser under execution sale off ered to prove that he had no notice of the wife’s claim and equities. It was objected that the testimony was immaterial. This was sustained, and was error. The court will presume that the bill of exceptions gives the objections and rulings as they were......................................................... 178</p>

<p>1. Belease of Vendor’s Lien—Mortgagee Without Notice. A mortgagee without notice acquires alien superior to the vendor’s lien recited in the deed, where the vendor has executed a release of the lien and such release is recorded, although the vendor’s lien note had been assigned to a hona fide holder before the execution of the release. 184</p> <p>2. Preservation of Lien. It is within the power of the endorsee of a vendor’s lien note to take a written assignment of the vendor's lien and to place it upon record, and thus secure himself against the acts of the original owner of the lien. A subsequent mortgagee has no such opportunity for guarding against the wrong, and it must he held that he who neglects a duty enjoined or the exercise of a privilege granted for his security, must suffer the loss, rather than one who was not in position to secure that protection........................................................184</p>

The lots in controversy, claimed by plaintiffs in error as homestead, were lots 4 and 5 in block number 2, fronting on Bridge Street, city of Waco; also lots 10, 11, and 12, on same block, but across an alley from the first named lots. The annexed plat shows the situation of the buildings, etc., upon lots 4 and 5. There was no controversy about the character of use to which the lots numbers 10,11, and 12 were applied.

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

<p>1. Mortgage—Limitation—Trespass to Try Title. In an action to try title the defendant holder, through a deed on its face subject to prior liens, may show that the title exhibited by the plaintiff was a mortgage, and whgn plaintiff amends and asks foreclosure, may plead limitation to the debt secured by such mortgage............... 199</p> <p>2. Same. That a purchaser from a mortgagor may as a general rule plead the statute of limitations to the debt secured by the mortgage, is settled in this court. A purchaser at an assignee’s sale in bankruptcy proceedings by the mortgagor is not an exception........................... 200</p> <p>3. Oases Adhered to. Mann v. Falcon, 25 Texas, 271; Boggess v. Brownson, 59 Texas, 417; and Cason v. Chambers, 62 Texas, 305, adhered to....................... 200</p>

<p>Question Certified from Court of Civil Appeals for First District, in an appeal from Brazoria County, upon the following statement: •</p> <p>To the Honorable Supreme Court: In the above entitled and numbered cause, there is pending a motion for rehearing, asking this court to set aside its judgment rendered in said cause affirming the judgment of the court below, and to reverse same.</p> <p>There arises upon said motion, as upon our first consideration of the case, a novel question of law.</p> <p>Appellant, L. Winston, brought suit in the District Court of Brazoria County against the appellees, C. Davis and H. Masterson, to enjoin the execution of a judgment obtained against him by the said C. Davis in the County Court of Brazoria County. As one of the grounds for the injunction, the appellant alleged that the judgment was void, because the county judge, before whom the cause of C. Davis v. L. Winston was tried, was disqualified by reason of his relationship to the said H. Master-son, a party to the cause.</p> <p>When the judgment in the cause of C. Davis v. L. Winston was rendered, Hon. A. R. Masterson, a brother of said H. Masterson, was the judge of the said County Court, and the cause was tried before him. Said H. Masterson was the attorney for the plaintiff, C. Davis, in bringing and prosecuting said suit. H. Masterson does not appear from the record to have been a party to the cause, but he had a contract with the plaintiff for his fee as attorney therein, by which he was to receive a contingent fee equal to one-half the amount recovered by him upon the judgment or claim against Winston. The question of disqualification was not raised in the cause of Davis v. Winston, and Judge Masterson was not aware of his brother’s agreement for a contingent fee.</p> <p>We certify to the Supreme Court the question, whether or not by reason of the contingent fee that H. Masterson had in the case of Davis v. Winston, his brother, Hon. A. R. Masterson, was disqualified to sit therein. * * *</p>

<p>1. Persons—Partnerships. It is a general rule that suits can only be maintained against persons, natural or artificial; that is, individuals or corporations. Unless otherwise provided by statute, a copartnership is not considered a person, and must sue or be sued by its partners.............................. 205</p> <p>2. Suits Against Partnerships—Citation. Articles 1224 and 1346 regulating suits against members of partnerships do not invest such firms with any of the characteristics of corporations ; nor are they expressly or impliedly authorized to sue or be sued in their firm names independently of their members................. 206</p> <p>3. Parties—Partnerships. In suits against partnerships all the members are necessary parties, although service of citation upon one or more is sufficient to support judgment against the firm, and the defendant served................. 206</p> <p>4. Same—Dismissal. The dismissal of suit against one or more members of the firm operates as a dismissal of the suit against the partnership. Such dismissal leaves the remaining individual member or members to answer as individuals........................................................... 207</p> <p>5. Final Judgment. After dismissal as to members of all the partnerships named as constituted by the defendants, and upon final trial, judgment was final when disposing of the matters in controversy between the plaintiffs and the remaining defendants. It is not necessary that any entry be made as to the partnerships................................................. 207</p> <p>6. Same. Judgment of dismissal is a final judgment from which error to Court of Civil Appeals will lie from Supreme Court.......................... 208</p>

<p>1. Suit to Recover Homestead. Action in trespass to try title against the husband alone to recover their homestead. Pending suit the defendants abandoned the property. Held, that such abandonment should be set up by the plaintiff; otherwise, proof of the abandonment could not be made, and the judgment would be void as to the wife........................................ 209</p> <p>2. Dissent in Court of Civil Appeals—Jurisdiction of Supreme Court. In order to authorize the certificate of dissent, the question upon which the judges disagree must be material to the decision of the case. If not material the Supreme Court acquires no jurisdiction of the appeal upon such certificate. See example................................. 210</p>

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

<p>1. Fellow-Servant—Negligence—Section Gang. Allegations that B. was foreman of a section gang to which plaintiff belonged, having power to employ and to discharge the hands subject to his control, and that he directed plaintiff to take a standing position upon a handcar upon which they were moving, and that while plaintiff was in that position, B., who was directing the movements of the car, permitted it to be run at a dangerous speed; and that while it was so running, without warning to plaintiff B. caused the car to be suddenly stopped, whereby plaintiff was thrown off and injured without fault on his part, show a cause of action for injuries so suffered, against the railway company.................... 224</p> <p>2. Vice-Principal. The rule of vice-principal applies to any special business of the master which is carried on by a number of employes under charge of another with power to employ and discharge the servants employed in the particular business in which they are engaged.......................................... 224</p> <p>3. Section Boss—Mode of Appointment. It is immaterial through what agency the power of employing and discharging hands may be given to a section boss; the material thing is that he has such power. That such power was given through the roadmaster is of no consequence in a litigation by a member of a section gang injured through negligence of his superior, the section boss................................ 225</p> <p>4. Immaterial Error. An erroneous charge can not be ground for reversal on complaint of the party favored by such charge. See example............................223, 225</p>

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

<p>1. Fire Insurance—Vacating Premises. Suit upon insurance policy in which was the following clause: “Art. 2. This policy shall become void unless consent in writing is indorsed by the company hereon in each of the following cases: Sec. 3. If the risk be increased by any change in the occupation of the building or the premises. * * * Sec. 4. It is a rule of this company not to insure any vacant or unoccupied building; and if any building herein described be or become vacant or unoccupied for the purpose indicated in this contract without the consent of the company indorsed thereon, this policy shall at once become null and void, and any unearned premium on the same will be refunded to the assured on the surrender of this policy.” Under this policy it was error to hold that a temporary vacancy of the insured premises, without consent, would not render the policy void.................................... 236</p> <p>2. Insurance Policy—Construction. While it is the rule for construing a policy of insurance that the language used in it must he liberally construed in favor of the assured, so as not to defeat without a plain necessity his claim to indemnity, still it is equally well settled that where the language is plain and unambiguous courts must enforce the contract as made, and can not make a new contract for them... 236</p> <p>3. Same. The terms of the policy in discussion clearly express the contract, that upon vacancy of the premises the relation of assured and assurer was then and there to terminate.................................................. 237</p> <p>4. Vacancy—Temporary. Such clause includes temporary as well as permanent vacancies of business houses. Courts in case of vacancy can not prescribe a time within which a policy should or should not be avoided thereby........................ 238</p>

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

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

The petition in its material parts is as follows: “The petition for writ of error by B. F. Cameron, who resides in Liberty County, David Boaz, who resides in Tarrant County, and A. Swartz, who resides in Travis County, Texas, shows: ‘ ‘ That they were each separately sued in the District Court of Liberty County, Texas, but the pleadings are the same in all the cases except the description of the lands.

<p>Application for writ of error to Court of Civil Appeals for Fifth District, in an appeal from Collin County.</p>

<p>1. Jurisdiction of District Courts—Habeas Corpus. Under the present Constitution the District Courts have jurisdiction to issue the writ of habeas corpus at instance of the parent complaining that his infant child is illegally withheld from him; and has also the power in such proceeding to decide to whom the custody of the child rightfully belongs.. 251</p> <p>2. Habeas Corpus—When a Civil Action. Where a father and mother, having released the custody of their infant daughter to another, and subsequently desiring to resume the custody, secure the writ of habeas corpus to that end, such proceeding is a civil case of which the Courts of Civil Appeals have jurisdiction on appeal.................. 251</p> <p>3. Same—Criminal or Civil Proceeding. If in the proceeding by habeas corpus it appears that the applicant is restrained by reason of his supposed violation of some criminal law or quasi-criminal law (as an offense against the person or contempt of court), then the proceeding must be classed as a criminal case; but if such person is not restrained by reason of some supposed violation of law, then the proceeding must be classed as a civil case........................................ 251</p> <p>4. Parent’s Custody of Child. The law recognizes the parent as the natural guardian of and entitled to the custody of the minor child so long as he discharges the obligations imposed upon him, by social and civil law, of protecting and maintaining his offspring. It does not recognize a property interest in the child, but accords to the parent the benefit of the child’s services during minority, etc....... 252</p> <p>5. State’s Power over Child. The State, as the protector of organized society, is interested in the proper education of the child, * * * and it has the right, in proper cases, to deprive the parent of the custody of his child when demanded by the interests of the child and of society. And when the existing facts confer upon the child rights to personal advantage as to moral, mental, and physical culture, the child can not lawfully be deprived thereof.................. 252</p> <p>6. Status of Child as Against Custody of Parent. While a contract yielding the custody of the child by a parent can not be enforced, yet it is not void; the new relation between the child and the adopting father is not unlawful; and when the parent seeks to retake control of his child, as a matter of lawthe child is entitled to the benefit of that home and environments which will best promote its welfare. Which of two homes offered the child is best is matter of fact to be determined from the evidence tending to throw light upon the two homes and the people inhabiting them, including their entire connection with, affection for, and present and future ability to care for and provide for the child..................253</p>

The errors complained of in the petition for writ of error were: 1. Error in the trial court and Court of Civil Appeals in holding that a transfer of the land certificate under which the land was surveyed after its survey did not convey the land. 2.

<p>1. Jurisdiction to Grant Writ of Error. The Supreme Court is without jurisdiction to grant the writ of error in cases brought, or which might have been brought, in the County Court, save in the cases expressly excepted by the statute............................. 261</p> <p>2. Same. Injunction in District Court to restrain proceedings, under an alleged void judgment of a justice of the peace, levied on personal property of the value of §109, could have been brought in the County Qourt; the Supreme Court, therefore, is without jurisdiction of the case, and the judgment of the Court of Civil Appeals is final............................................ 261</p>

The petition for writ of error is here given: Mary W. Lake, who is joined herein by her husband, Joe Lake, shows that Mildred Ann Coapland, who resides in the city of Marshall, * * Texas, is… Held: in the opinion reversing the case, that the daughter was not entitled to recover an interest in said property, but merely a personal judgment for money.

The opinion sufficiently sets out the. facts. The errors complained of in application for writ of error are here given: 1., Our Court of Civil Appeals erred in its opinion in this case in holding that the evidence on the last trial did not make a different case from the case as formerly decided by the Supreme Court. 2.

<p>Duty of Railroad. Company to Prevent Escape of Eire—Practice.</p> <p>The law enjoins upon railway companies the duty of providing engines with the best approved appliances for preventing the escape of fire, and careful management thereof by their employes; and a failure to perform such duty constitutes negligence as matter of law. A charge which directs the jury to find for the plaintiff, upon finding from the evidence that the fire escaped from the engine of the defendant and caused the damages alleged, there being no evidence to show a compliance by defendant with the legal requirement as to the equipment of the engine, is not a charge upon the weight of evidence; it simply gives to the evidence, which is prima facie proof of negligence in the first place, that conclusive force which the law attaches to the failure of the defendant to make proof showing a compliance with its duty in that particular ...................................... 276</p>

<p>1. Error in Charge—Burden of Proof. On trial in action for personal injuries inflicted in a railroad wreck from alleged negligence of the railway, after a proper charge as to the plaintiff’s case, and having given the law as to contributory negligence, the court was in error in instructing as to the defense, ‘ that if they (the jury) believe from a preponderance of evidence that the train was not run at a dangerous rate of speed, and that the piles (constituting the load) were not negligently loaded on the cars, and that the employes of the company did not fail to keep a proper lookout, they should find for the defendant.” This shifted the burden of proof, and placed it upon the defendant................279</p> <p>3. Presumption of Negligence from the Injury. When a passenger is injured by an accident, such as the derailment of a train, at a place where the track and train are entirely under the control of the company-—that is to say, where they are not interfered with by any extraneous force, a presumption of negligence arises, and in order for the company to exonerate itself from liability for the injury, it must adduce evidence to show that the accident could not have been avoided by the exercise of the utmost care and foresight reasonably compatible with a prosecution of its business ......................................................... 280</p> <p>3. Facts Not Negativing Negligence. See facts which are discussed and held not to rebut the presumption of negligence arising from a derailment of a train of cars. Duty of employes in charge of train.................................................... 280</p> <p>4. Immaterial Error. Where plaintiff showed injury to himself while a passenger by a derailment, and the defendant offered testimony tending to prove facts which could not rebut the presumption of negligence, an error in the charge upon the burden of proof of the facts in defense is not ground for reversal............. 281</p> <p>5. Record and Practice on Appeal. The statement of facts will not be affected by a quaere by the trial judge in overruling a motion for new trial upon the sufficiency of the testimony to sustain the verdict................................................... 281</p>

This was a suit brought by J. K. P. Thomas and Jennie Thomas, his wife, for damages for personal injuries received by her under circumstances as given in application for writ of error, as follows: It appeared that Jennie Thomas was travelling in a wagon driven by her brother upon a public road, leading from Denison to Colbert’s ferry, running on the west side of defendant’s railway, which turned east and crossed from the west side, passing underneath a trestle fourteen to…

The facts are stated in the opinion. The contention, as stated in the petition for writ of error, is as follows: “The exact point of contention presented for… Held: that upon the cessation of the partnership existing between Chilton and Cheeves the latter had no insurable interest in the life of Chilton, and therefore was not entitled, to recover, although he was a direct beneficiary named in the policy. The Court of Civil Appeals affirmed the judgment of the District Court.

July 2 and 3, 1891, W. F. Lake, a hardware merchant doing a large business, and being insolvent, executed several conveyances, conveying all his property not exempt. Held: that the several deeds constituted an assignment under the statute; also that at the levy of the attachment the property was in custodia legis, and not subject to attachment.

<p>1. Mandamus to Court of Civil Appeals—Statement. What should be omitted and what inserted in the statement required to be made by the Court of Civil Appeals in cases in which writ of error may lie, are questions which necessarily involve discretion on part of the court. And when the court has acted, and in the exercise of their discretion have filed what they consider a sufficient statement of the case, in ordinary cases they can not be compelled to file additional conclusions................. 298</p> <p>2. Practice in Writ of Error—Extracts from Transcript. It has been the practice of this court to permit applicants to bring up in the transcript from the Court of Civil Appeals, and to file as a part of their application, such extracts from the transcript of the trial court as their counsel may deem proper, and to consider such extracts in determining the propriety of granting the writ of error.................................... 298</p>

Eeros to Court of Civil Appeals for Second District, in an appeal from District Court of Clay County. The facts are given in the opinion. The substantial matters complained of in the petition for writ of error are: “1.

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

<p>Issues Must Be Submitted to Jury. The defense of contributory negligence was raised in the testimony. The court in its charge failed to submit the issue. Instruction supplying the defect was asked by the defendant. The refusal of such instruction was error, for which judgment must be reversed..................................... 310</p>

This is an appeal from a judgment against the International & Great Northern Bailway for damages caused by delay, etc., in carrying a shipment of sheep from Kerrville, Texas, to Chicago. It was alleged that by special contract with an agent of the receiver, Campbell, then in charge of the road, the sheep were to be delivered via the Iron Mountain Boad within four days.

„ This is an appeal from a judgment for $100 as a penalty against the plaintiff in error for its alleged failure to sufficiently feed and water certain cattle shipped over the railroad. The shipment was from Santa Anna, Texas, to West Point, Miss. The negligence was alleged to have been between Santa Anna and Fort Worth, in Texas. The judgment was affirmed by the Court of Civil Appeals.

The plaintiff in error complains, that “the Court of Civil-Appeals erred in its second conclusion'of law in saying: There being no allegation in the issues tendered of fraud or collusion between the plaintiff and defendant in attachment, the appellant could not go behind the process and inquire into the validity of the debt upon which it was founded.’ The case cited by the court to sustain this proposition is one in which judgment by default had already been rendered.

<p>1. Conflict in Testimony on Appeal. The testimony being conflicting, upon a verdict for the plaintiff, the issue being the substance and effect of a conversation between the parties as a contract or not, on appeal the testimony of plaintiff will be considered as true, in determining whether the verdict can be sustained............... 321</p> <p>2. Contract—Effect of Words Used. Where words are relied upon as making an offer of compensation for doing an act, and the parties at the time stand face to face, the intention to make the offer should be manifested in the language used, at least with reasonable certainty. See example......................................... 321</p> <p>3. Practice. Where, after viewing the transaction in the light most favorable to the plaintiff, the conclusion is reached that the language used does not justify the inference that a contract was made, it is the duty of the trial court to instruct a verdict for the defendant...........'.......................... 322</p> <p>4. Commission for Making Sale—Case in Judgment. , Dunn stated in presence of Price, a land agent, that he wanted to sell the Mansion hotel, naming his price. After some conversation between them, Price asked, “if he was in earnest.” Dunn replied that “he was in earnest; that he meant business, and that if I did not think he was to bring him a purchaser, and see how quick he would make deed.” Held, that this did not constitute a contract upon which Price could recover commissions upon procuring a purchaser at the price named............. 320, 322</p>

<p>1. Negligence—Duty of Owner—Measure of Damages. The general rule is, that where one is injured by the negligence of another the person injured must use all reasonable means at bis command to avert or lessen the damages which would otherwise result from such negligence, and his failure to do so will limit his recovery to such damages as would have resulted from such negligence had such means been used, plus a sum as would reasonably have been expended in the use of such means ....... 337</p> <p>2. Same—Contributory Negligence. The failure to use such means would be contributory negligence, but only as to such portion of injury and resulting damages as would have been averted by the use thereof, less the reasonable cost of such means, and could only prevent a recovery to that extent......... ■............................ 328</p> <p>3. Same—Excuse for Want of Care. If it reasonably appears that the cost of such means, added to the damages which would not probably be averted thereby, would equal or exceed the damages which could reasonably be expected to result from the negligent act, then the injured party would be excused from the use of such means, and could recover the entire damages resulting from such negligent act... 328</p> <p>4. Duty by Owner of Injured Property. It-is not the negligence of the carrier, but the extent of the injury that might reasonably be expected to flow therefrom, and the expense likely to be incurred in an attempt to avert loss, which must be looked to in determining whether a shipper in case of a railway wreck and delay incident and injury resulting to live stock shipped had the right to rescind the contract of shipment and to refuse to feed and water the stock as he had agreed to do. See facts held not to relieve a shipper from the duty of caring for his stock although delayed by wreck..............■............................... 328</p> <p>5. Negligence. Where there was slight delay of a train carrying live stock, and where but little injury could have resulted merely from the delay, it was negligence in the shipper for his agent in charge of the live stock to refuse to feed and water the stock when facilities therefor were furnished by the railway company, and the wants of the cattle demanded such attention. Failure to afford such facilities is negligence on part of the railway................ 328</p> <p>6. Feeding and Watering Dive Stock. . A special contract by which the shipper assumes the duty of feeding and watering the stock relieves the carrier from such duty; and the shipper is bound to such duty when reasonable facilities therefor are furnished by the carrier. This duty is imposed upon the shipper under Act of Congress. Rev. Stats. U. S., sec. 4387 ........................................... 329</p> <p>7. Agent in Charge of Stock. The abandonment of charge of live stock by the agent of the shipper does not impose the burden of such care upon the carrier to the extent of relieving the shipper of his duty to care for his stock under his shipping contract. His failure to provide for the care of the stock is negligence on his part.... 329</p> <p>8. Evidence of Negligence. There being evidence of delay and of the intermingling of the cattle so as to destroy the grading for the market which had been made in the shipment, the defendant was not entitled to judgment, although its liability for the greater amount of damages claimed was negatived on the ground of want of care on part of the plaintiff. The plaintiff is entitled to recover for loss the result of the negligence of the defendant........................... 329</p> <p>9. Injuries Beyond its Line—Limited Damages. A shipping contract which exempts a carrier “from liability of every kind after said stock has left its road,” does not relieve against the results arising from negligent acts upon its own line, although such damage developed or became apparent after the stock left its line.......................... 330</p>

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

' Echols sued for damages for personal injuries suffered from alleged negligence of the railway company, while he was in its employ. The nature of the employment and the circumstances of the injury are set out in the opinion of the court. On the trial in the District Court verdict was rendered for plaintiff for $15,000. Pending a motion for new trial by the defendant the plaintiff filed a remittitur for $6000, and the judgment was rendered for $9000. The defendant appealed.

<p>Question Certified from Court of Civil Appeals, in an appeal-from Second Supreme Judicial District.</p>

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

<p>1. Nonresident Minor—Local Guardian May Sell Land. Under article 2515 of the Revised Statutes the lands of nonresident minors may be sold by a local guardian under proceedings in guardianship of the estate of such minors. Sale may be made to provide for education of the minors............................................................. 365</p> <p>2. Probate Courts are of General Jurisdiction—Fraud. The Probate Court being a court of general jurisdiction within the scope of the power conferred upon it in matters of guardianship, its proceedings cannot be collaterally attacked for fraud.................................. 366</p> <p>3. Same—Presumption. The law, in absence of proof, presumes that all jurisdictional facts existed. If notice (of application for sale of land) was a jurisdictional fact, it devolves upon the party attacking the sale to prove the want of notice. In absence of such evidence, the law would presume notice................. 366</p> <p>4. Construction of Deed—Limitation. Land was conveyed to certain minors, “to be held in common and unsold until the youngest of said boys shall become of age—that is, the age of twenty-one years.” Two of the grantees died, their parents surviving. In guardianship of survivors their interest was sold while they were minors. After their majority they sued for the land. Held: 1. The language does not amount to a condition the breach of which would defeat the estate of the grantees and cause same to revert to the original grantee....................................................... 366 2. In absence of such condition, the grantees being vested in fee, were not limited or restricted from conveying the estate granted; for unlimited power of alienation in the holder to the extent of his ability to convey under the law is a necessary incident to an estate in fee simple..........367 3. In event that a valid condition was contained in the deed against sale until majority of the youngest of the grantees, a sale by the grantee in breach of the condition would he binding between the parties to the sale, and in absence of entry by original grantor for condition broken would be valid against him..................1................................. 367 4. There being no valid condition against alienation, the probate sale would be valid against both the original grantees and the original grantor, 367 5. Since the unlimited power of alienation is a necessary incident to an estate in fee, and since there is no person who can enforce the attempted limitation on the power to sell, it follows that the words of limitation in the deed above cited are ineffectual in law, and the deed must be construed as if they had not been written therein................................ 368</p>

<p>1. Warranty on Partition of Assets by Corporation. The shareholders of a corporation dealing in real estate agreed to withdraw and to divide a portion of its lands. In.accordance with and to carry out such agreement conveyances were executed by the corporation to the several shareholders for the lands so allotted. The title to the lands conveyed to one upon a consideration of §2 failed in part. Suit against the corporation for breach of warranty. Held, that testimony to the value of the lot at time of the conveyance was properly excluded. The corporation was not liable for the failure of title..................................'........ 371</p> <p>3. Same—Fact Case. From the fact that a corporation determined to release a portion of its assets for division among its shareholders, no presumption will arise that it intended to make good the title of the property so relinquished............ 372</p>

<p>1. Appeal by Administrator Without Bond. An administrator may appeal to the District Court without bond from an order of the County Court denying Mm Ms statutory commissions. Such appeal is concerning his official acts................................... 373</p> <p>3. Commissions in Administration. Article 2190, Revised Statutes, allows the administrator 5 per cent upon all money actually received, and the same upon money paid out. An administrator upon making a sale under foreclosure proceedings against lands of the estate is entitled to these commissions, although the amount of the bid was not paid by the creditor who bought the property at less than Ms judgment, but credited upon the judgment................................ 373</p> <p>3. Same—Cases Overruled. James v. Corker, 30 Texas. 617, and Watt v. Downs, 46 Texas, 116, overruled in respect to commissions of an administrator making sale under foreclosure decree when the purchase money is not actually paid by the purchaser, who is the judgment creditor............................................. 374</p>

<p>1. Caption of Statute—Reservation of Public Lands. The caption of chapter 52, Laws Sixteenth Legislature, special session (July 14, 1879), is “An act to provide for the sale of a portion of the unappropriated public lands of the State of Texas, and the investment of the proceeds of such sale.” This caption includes the creation of the reservation therein provided. To provide for the sale of a part of the public domain implies reasonably, if not necessarily, a provision that it shall not be subject to appropriation in any other manner. The act therefore does not conflict with section 35, article 3, of the Constitution, which prescribes, that “no bill * * * shall contain more than one subject, which shall be expressed in its title.” The reservation was valid................................. 377</p> <p>2. Same—Reservation—Construction of Statutes. So much of the Act of January 22, 1883 (chapter 3, Laws Eighteenth Legislarture), entitled, “An act to withdraw the public lands of the State of Texas from sale, ’ ’ as undertakes to continue the reservation of the former laws upon the same subject is not repugnant to either section 35 or section 36 of article 3 of the Constitution. The withdrawal from sale did not necessarily affect the reservation from location by certificates. The Legislature under the title had the power to limit the effect of the withdrawal, and to provide that it should not have the effect of restoring the reservation to the public domain............................................................. 378</p> <p>3. Amendment of Statutes. Section 36, article 3, of the Constitution, is: “No law shall be revived or amended by reference to its title, but in such case the act revived or sections amended shall be re-enacted and published at length.” This does not mean that every act which amends the statutory law shall set out at length the entire law amended. It is intended to prohibit the amendment of a statute by reference to its title, and by providing that it should be amended by adhering to or striking out certain words, or by omitting certain language and inserting in lieu thereof certain other words. Nor does it prohibit the passage of a law which declares fully its provisions without reference to any other act, although its effect should be to enlarge or restrict the operation of other statutes .................................. 378</p> <p>4. Legislative Interpretation of Statute. The Legislature has the power to declare in the hody of an act the construction which shall be put upon it. It is but a mode of expressing its intent; that intent, however expressed, is binding upon the courts. A Legislature may not construe a former law so as to give such construction a retroactive effect ............................................................. 379</p> <p>5. Statute Construed—University Funds. The sole purpose of the Act of April 10, 1883 (chapter 72, Laws Eighteenth Legislature, p. 71), was to endow the University of Texas with one-half of the net proceeds of the sale of two million acres of land in the reservation, provided that quantity should remain after the payment of the debts provided for in the Act of January 22,1883, by same Legislature. Theformer act must be construed in connection with the existing laws upon same subject. 379</p> <p>6. Construction of Statutes—Sale of Public Lands. We may say, that viewing the legislation passed at the same session in 1883 all together, it becomes apparent that the purpose of the Act of January 22nd was merely to suspend the sales, and was not to change radically the policy of the State in reference to the lands in question. Both the Act of February 23rd and that of April 10th clearly indicate that the Legislature contemplated future sales, although there was no law in force at that time which provided for such sales......................................... 380</p>

Questions Certified from Court of Civil Appeals for Third District, in an appeal from Travis County. The statement and questions submitted are'given in full: The land involved in this certificate was located by virtue of duplicate certificate number 30/191, issued to the Buffalo Bayou, Brazos & Colorado Railroad Company. The date of the location is not shown, but the land was patented to said railroad company May 22, 1876.

<p>1. Settles the Case—Jurisdiction. In an action of trespass to try title against two or more defendants, each of whom claims the land sued for, or a part of it, the decision of the Court of Civil Appeals against the right of one of the defendants and in favor of the plaintiffs, while conclusive between the plaintiffs and the losing defendant, does not settle the case. The case can not be settled until the rights of each of the parties in the subject matter of litigation are determined. Such action is not severable ............................................. 386</p> <p>3. Same—Same—Action Severable. In an action in trespass to try title against two or more defendants, each of whom claims a distinct part of the tract and disclaims as to the balance, the suit becomes several, and although tried as one, the case as to each defendant is a separate case. A decision of the Court of Civil Appeals settling the case of one such defendant settles a distinct case, and may give the right of appeal to this court by an application for a writ of error by the losing party . '............................................................ 386</p>

<p>Immaterial Error—Fraud—Motive—Competent but Immaterial Testimony. Suit by Hudson against P. J. Willis & Co. for damages for conversion of a stock of merchandise in Hudson’s possession. The defense was, that the goods belonged to Hudson & Son, an insolvent firm which had used the name of plaintiff to cover the property from their creditors. The ownership of the goods was the issue. The plaintiff offered evidence that Hudson & Son had paid or settled the debt to the defendant under which it seems the goods had been seized. The trial court excluded the testimony. Held: 1. As testimony to insolvency of Hudson & Son was competent on issue of motive on their part, it was competent in rebuttal to prove the payment of any or all of its debts ....................................'......... 395 3. It appearing by direct testimony that the firm was insolvent, and that its members could not hold property in their name or of either of them, and that the goods for that reason had been transferred to the plaintiff, the exclusion of testimony to the satisfaction of the judgment in favor of Willis & Co. could not have injured the plaintiff, and is no ground for reversal of a judgment for the defendants........................................ 396</p>

<p>1. Venue—Crime as Cause of Action. An agent of money lenders and brokers who was furnished with funds to be delivered to a creditor of the firm, having failed to deliver the money, is not liable to said creditor under section 8 of article 1198 of the Eevised Statutes. If the crime was embezzlement, it was not against the creditor- but against the firm. Besides, the mere failure to pay over of itself does not show a crime against the firm, it not appearing that the money had been appropriated or otherwise disposed of............:......I.................. 398</p> <p>2. Venue—Liability for Debt of Another. When one, for a valuable consideration, agrees with another to pay the debt of that other person to a third person, such agreement inures to the benefit of the third party. Upon default in such payment the creditor may join both the original debtor and the party promising in one suit, and residence of one will carry jurisdiction against the others.......................... 400</p>

<p>Original Application for mandamus against the judge of District Court for McLennan County.</p>

The instrument construed in the opinion is as follows: “State of Texas, County of Says.—Know all men by these presents, that whereas I am indebted to divers persons and firms in different sums of money, which will be shown by an inventory annexed hereto and marked 'Exhibit A;’ and whereas I am insolvent and unable to pay said debts in full.

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

<p>1. Notice of Appeal a Jurisdictional Fact. Without a notice of appeal actually given in open court the appellate court can not acquire jurisdiction of the case, even by consent of the appellee ... 426</p> <p>2. Practice Where Notice was Given, but Not Entered of Record. The statutes expressly confer upon the Court of Civil Appeals “the power, upon affidavit or otherwise, as by the court may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.” Laws 1892, p. 27, sec. 7. Under this provision the Court of Civil Appeals may hear evidence showing that notice of appeal had been given in a case where none appears in the transcript, and upon being satisfied that the notice had been given in open court, it may exercise jurisdiction of the case. The better practice is to allow the appellant time to perfect thejecord, so as to show notice................................ 427</p> <p>3. Same—Jurisdiction on Appeal. Jurisdiction in an appeal depends upon the fact of notice, and not upon the record of the fact................................................... 427</p> <p>4. Same—Case in Judgment. The Court of Civil Appeals of its own motion dismissed an appeal for want of notice, none appearing in the transcript. On motion to reinstate, appellant showed by affidavit and certified docket entry made by the trial judge, that the appellant had given notice of appeal in open court, and time was asked to perfect the record. The court refused the motion: Held, error, and the case is remanded to the Court of Civil Appeals; the motion to be allowed, giving time to perfect the record...................................... 428</p>

The complaint made in the application for writ of error alleges as errors: 1.

The suit was for personal injuries and shame and mortification alleged to have been inflicted on the negress, Lucy Miller, by excessive violence and abuse by the conductor of the Columbia Tap Railway, and by a passenger who, at the conductor’s request, assisted him in putting her out of the white people’s car or compartment, and into the negro division. The defendant filed a general denial.

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

<p>Conflict in Decisions as Ground for Writ of Error. An order was made in the District Court, as follows: “This day came on to he heard the motion to set aside the judgment rendered in the above cause and to reinstate the same upon the docket of the court. Both the plaintiff and the defendants being represented by counsel, and the motion being heard, it is hereby ordered, adjudged, and decreed by the court, that the case be reinstated, upon the condition that the plaintiff pay all costs that have accrued in said cause up to date, together with the costs of this order, and that the case is to be continued to the next term of this court upon application of plaintiff.” This order on appeal was affirmed hy the Court of Civil Appeals, the court in its opinion recognizing the rule in Secrest v. Best, 6 Texas, 199, that an order reinstating a case or granting a new trial must be absolute and not contingent upon payment of costs, and holding that the order which set aside the former order of dismissal, and which reinstated the case, was not conditional, but was absolute. Seld, that this decision was merely upon the construction of the order, and whether right or not, it was not in conflict with the rule which it recognized. The action of the Court of Appeals did not confer jurisdiction by writ of error to Supreme Court....................................................... 437</p>

The complaint in the application noticed in the opinion is as follows: “That the verdict of the jury was contrary to the evidence, and especially was it contrary to it in these particulars: (1) The evidence fails to show any negligence on the part of the railway company, and shows on the contrary that its engines were operated in a skillful and prudent manner, and were provided with appliances for preventing the escape of fire shown by the experience of railway companies to…

<p>1. Building Contract—Stipulated Damages—Fact Case. A contract for building a house required that it be completed by October 1, 1889. In case of failure to complete it by the day specified the contractor was to pay the owner, as liquidated damages, §10 for every day its completion should be delayed. On November 12th the owner by consent occupied two rooms of the building, which was not completed until January 14,1890. Suit on the contract for balance due. The defendant pleaded the stipulated damages and the delay. On the trial there was no testimony to the amount of damages other than the contract. The trial judge charged, that defendant be allowed damages upon his counter-claim at the rate of §10 per day from October 1 to November 12, 1889. The jury under the instruction found for defendant §420 to be offset; balance for the plaintiff. Held, that whether the stipulation be considered as liquidating the damages or as a penalty, the defendant has no grounds of complaint of the charge. The charge properly limited the damages to the date of the entry, and there was no proof of actual damages...........................441, 443</p> <p>2. Stipulated Damages. Although a sum be named as “liquidated damages,” the courts will not so treat it unless it bear such proportion to the actual damages that it may reasonably be presumed to have been arrived at upon a fair estimation by the parties of the compensation to be paid for the prospective loss. If the supposed stipulation greatly exceed the actual loss—if there be no approximation between them, and this be made to appear by the evidence—then and then only should the-actual damages be the measure of the recovery. The record here does not give a basis for estimating actual damages....... 442</p>

This was an action of trespass to try title for lot 531, in section 1, Galveston, containing twenty-six acres, brought by M. M. Crosby, Dixie Crosby, and William P. Crosby, claiming one-half, and A. Sampson, claiming the other half against M. Marx. Marx impleaded on their covenants of warranty his immediate vendor William Eeppen, and Steuart, Beppen’s vendor, praying for judgment for his purchase money and interest in case plaintiffs should recover.

<p>Obiginal application for mandamus.against Court of Civil Appeals for Second District.</p> <p>The opinion gives a sufficient statement of the ease.</p>

The verdict and judgment in the trial court for damages were affirmed in the Court of Civil Appeals. Among the matters complained of in the petition for writ of error is the following: 4.

<p>1. Bill of Exceptions in Absence of Statement of Facts. In the absence of a statement of facts, the rulings of the trial court in admitting and excluding evidence will not he revised, unless it appear from the bill of exceptions and the record that such ruling is erroneous, and that it caused injury to the party complaining.......................'......... 469</p> <p>2. Same—Case in Judgment. The condition of the railway track at the place of the inj ury in litigation being in issue, and it appearing by hill of exceptions that testimony over objection had been admitted, that subsequent to the injury a culvert had been placed there, and that none was there before, there being no statement of facts, a verdict for plaintiff will not he set aside on grounds of the admission of such testimony, it not appearing that the testimony was inadmissible, or that injury resulted from its admission.......................... 470</p>

The contention is clearly stated in the application for writ of error, extract from which is here given: The plaintiffs below claim title to the land as the heirs of Alexander MeCown, and the… Held: that this charge was error, and that it was necessary for the purchasers to prove the existence of debts owed by the estate at the time they purchased the lands from this executor.

<p>Homestead—Intention—Acts Evidencing. Gallagher, head of a family, bought a city lot in 1884. The lot at the time was overgrown with brush. Within ten days he fenced it, and in a short time thereafter he grubbed and cleared it off and planted it in shade trees. He testified, he bought the lot and improved it with intent to occupy it as a homestead. He owned no other real estate. October, 1889, the lot was sold under execution and was bought in at a small price by the plaintiff in execution, and the bid was credited upon it. In 1890 Gallagher erected a house upon the lot and moved upon it, thenceforward residing thereon. He brought suit to remove the cloud from the title, and on the trial of the case he testified, that his intention to make the lot his own had been continuous. Held, that where such intention and its continuance are sought to be established in whole or in part by circumstantial evidence, every circumstance tending to show such intent should be considered by the court; and that the facts, that “he built the house and moved into it after the lot was sold under the execution” were competent, and should be considered by the court in determining such intent and its continuation........ 474</p>

Certified Questions from Court of Civil Appeals for Third District, in an appeal.from Brown County. The questions certified are here given: “This is a suit instituted under authority of the Act of the Twenty-third Legislature, page 124, by Brown County, to recover of Mills County its proportionate share of the indebtedness of Brown County.

This case involves the right of parties contracting with each other for the sale and purchase of vacant public land, in which neither… Held: that the measure of damages upon the nullity of the title appearing was restricted to the amount Lamb had been compelled to expend to perfect the title. The second trial in the District Court followed the decision in the Court of Civil Appeals, and on appeal this judgment was affirmed, from which the plaintiff below prosecutes error.

Questions Certified from Court of Civil Appeals for Fourth District, in an appeal from Bexar County.

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

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

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

<p>7. Partnership Incorporated—Firm Property. The incorporation of a partnership does not operate to convey the property of the firm to the corporation; especially when the act of incorporation contemplated a conveyance by the firm to the corporation. Carothers & Searight v. Alexander, 74 Texas, 327.......................................... 537</p> <p>8. Sale of Property of Corporation. Certain machinery of the corporation was mortgaged for its debts. Under foreclosure sale the purchasers did not become entitled to bounty lands earned by the corporation; nor did such purchasers become, in virtue of the purchase of the machinery, stockholders in the corporation............... 538</p> <p>9. De Facto Officer. Such purchasers of machinery of the corporation under foreclosure did not become stockholders; they had no rights as such under the charter, and they could not elect one of their number to be president of the corporation. By usurping power to which he had no color of legal right, the person so elected could not be the de facto president of the corporation.................... 538</p> <p>10. Prerequisite Conditions. The charter of the Bastrop Manufacturing Company required an appraisement by commissioners, one to be appointed by the Governor, one by the corporar tion, and they to select the third. A commissioner selected by the purchasers (as above) did not represent the corporation. An appraisement participated in by a commissioner so appointed was void. Again, as the law prescribed that upon the filing of such appraisement the Commissioner of the Land Office should issue certificates for land as indicated in the charter, the absence of such certificates was fatal to the validity of surveys made for said manufacturing company...................................... 538</p> <p>11. Equitably Owned—Case Adhered to. Adams v. Railway, 70 Texas, 269, adhered to, that lands can not be equitably owned as contemplated in section 2, article 13, of the State Constitution of 1876, when claimed without any lawful authority...................... 538</p> <p>12. Good Eaith Improvements—-Bight to Trial by Jury. A part of the sum allowed by the jury to the defendant for improvements made in good faith having been without sufficient testimony, upon reversal the question of value of such improvements must be remanded for trial by the lower court...................................................... 539</p> <p>IS. Possession in Good Eaith. See facts held sufficient basis for improvements in good faith, yet under a claim void in law................................................... 539'</p> <p>Error to Court of Civil Appeals for Third District, in an appeal from Tom Green County.</p> <p>This was an action of trespass to try title, brought by J. H. McLeary, Walter Acker, W. B. Abney, and J. C. Mathews, against T. H. Dawson and W. J. Skinner. Dawson pleaded not guilty. Skinner also pleaded not guilty, and set up improvements in good faith. On trial before a jury the plaintiffs exhibited patents under surveys made under what are called Confederate land certificates. The surveys were detached, and not as prescribed for surveys under alternate certificates. The defendant Skinner showed title under G. W. Jones, president of the Bastrop Manufacturing Company, to an older survey of the land made by virtue of the claim of the company for lands donated in consideration of the introduction into the State of machinery, etc. There was much testimony, intended to show all the facts prerequisite to the right of the corporation to acquire the land by the surveys. The court instructed the jury to find for the plaintiffs, but leaving to the jury the issue suggested by Skinner as to good faith, possession, and valuable improvements. Verdict and judgment for plaintiffs for the lands, and for Skinner for value of his improvements.</p> <p>By the Court of Civil Appeals it was held, that as to Dawson there was no error, he not having shown any claim to the land; but as to Skinner there was error in not submitting to the jury the question of title; as it was held that there was testimony tending to prove that the land was equitably owned by Skinner under the prior surveys made for the Bastrop Manufacturing Company, under which he held. It was also held, that there was error in one item of improvements allowed by the jury. The case was remanded as to Skinner. The application for writ of error claimed, that the land grant to the Bastrop Manufacturing Company was a war measure and void as in aid of the Southern Confederacy, and that the claim of the corporation for land was condemned by the State in its constitutional conventions, both of 1866 and 1869; and that there was no testimony showing that the corporation under its charter had earned any lands.</p> <p>Tlie grounds of jurisdiction in error as given in application are as follows:</p> <p>“1. It involves the validity of the Act of December 16,1863 (granting lands upon introduction of machinery, etc.).</p> <p>“2. It involves the construction and application of section 34, article 12, of the Constitution of 1869.</p> <p>“5. The Court of Civil Appeals in its decision, in many respects, overruled the decision of the Supreme Court in Maxwell v. Bastrop Manufacturing Company, 77 Texas, 233; and especially in that it practically decided that it was not necessary for appellants to show that the commissioners were appointed in the manner required by the statute.</p> <p>4. In holding that in the absence of evidence to the contrary it would be presumed that the application and the certificate of the Commissioners of the General Land Office were filed with the surveyor of the land district before the surveys were made for the Bastrop Manufacturing Company. The Court of Civil Appeals also overruled the decisions of the said Supreme Court in the cases of Ramsey v. Medlin, 55 Texas, 248; Snyder v. Sunn, 66 Texas, 255, and Martin v. McCarty, 74 Texas, 128, as well as said case of Maxwell v. Bastrop Manufacturing Company.”</p> <p>The opinion of the court gives a sufficient statement of the facts discussed.</p>

<p>Error to Court of Civil Appeals for First District, in an appeal from Harris County.</p> <p>The opinion contains a sufficient statement.</p>

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

This is an action brought in the District Court by E. 0. Pendry, against the Gulf, Colorado & Santa Fe Railway Company and the Fort Worth Street Railway Company, to recover damages for injuries sustained by the wife of plaintiff, while a passenger on a car of the said street railway company, which car was backed into by a train of the Gulf, Colorado & Santa Fe Railway at a crossing of the two railway tracks in the city of Fort Worth.

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

The petition for writ of error shows, that Bobinson was elected and qualified as sheriff of Hartley County, Texas, in the fall of 1890; and was re-elected in November, 1892, and continued to discharge the duties of his office without again qualifying and giving a new bond.

The error complained of was, that “the record in this case showing, as found by the Court of Civil Appeals, that appellee instituted this suit, during the existence of the marital relation, to recover damages to realty community property, the Court of Civil Appeals erred in holding that after the death of appellee’s wife, intestate and leaving heirs, appellee, who had never qualified as survivor of the community, could prosecute this suit alone, without any showing of the…

<p>Application for writ of error to Court of Civil Appeals for Third District, in an appeal from Williamson County.</p> <p>This was a suit for injunction brought by Threadgill against B. B. Pumphrey, J. B. Pumphrey, the Taylor National Bank, the Taylor Electric Light and Power Company, a private corporation, and the directors of said corporation.</p> <p>The purpose of the suit was to enjoin the sale of the property and franchise of said corporation by B. B. Pumphrey, a substitute trustee, under a deed of trust duly executed by the officers to secure its promissory note for $7000, executed to the Taylor National Bank for borrowed money. Threadgill was a stockholder in the corporation.</p> <p>The injunction was perpetuated in the District Court, on the ground that the said corporation was organized for quasi-public purposes; that it had no power without legislative permission to dispose of its franchise or property which it is necessary for it to own in order to discharge its public duties, which it assumed in its incorporation; the general statutes authorizing corporations to borrow money and mortgage property do not apply to such corporations; the execution of the trust deed was ultra vires and against public policy.</p> <p>On appeal, the judgment below was reversed and the petition dismissed.</p> <p>On application for writ of error, complaint is made as follows:</p> <p>“1. The court erred in holding that the Taylor Electric, Gas, and Power Company had authority to execute the deed of trust in question, and in reversing the judgment of the lower court, dissolving the injunction, and dismissing the cause; because while the Taylor Electric, Gas, and Power Company was a private corporation, it was charged with the performance of public duties, that is, furnishing the city of Taylor and its inhabitants with light; and the company had no authority by mortgage or sale to dispose of the franchises and property necessary to enable it to discharge said public duty.</p> <p>“2. The court erred in holding that articles 575 and 577 of the Be-vised Statutes expressly authorized said corporation to execute the deed of trust in controversy, because said articles were only intended by the Legislature to enable corporations which were not charged with the performance of public duties to convey their entire property, and were not intended to empower corporations charged with the performance of public duties, by sale or mortgage of its property which was being actually applied to a public use, to disable itself from carrying-out and performing its public duties.</p> <p>“3. The court erred in holding- that the statutes authorized the execution of the mortgage or trust deed in controversy, and that by reason thereof it had the right, without express legislative sanction, to dispose of the franchises, because said franchises were necessary to the beneficial use of the property conveyed.- This is erroneous, because the franchise is a right conferred by the Legislature to a corporation, and the right can not be transferred to others without the consent of the Legislature.”</p>

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

<p>Application for writ of error to Court of Civil Appeals for Third District in an appeal from Travis County.</p>

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

<p>Application for writ of error to Court of Civil Appeals, in an appeal from Dallas County.</p>

<p>Subrogation. A firm dissolved, one member taking the firm property and assuming the indebtedness. In accordance with an agreement the property was insured in the name of the firm for the benefit of the principal creditor, the purchaser obtaining the policy and paying the premium. The property was destroyed by fire. The purchasing party paid the firm debt, as security for which the policy had been obtained. He also proved up the loss. Payment being refused, suit on the policy was brought in the firm name. Held: 1. That upon payment of the firm debt the purchaser was subrogated to the rights of the firm in the policy.................................. 595 2. The payment did not discharge the policy of insurance............. 595 3. The firm could maintain an action on the policy, being the legal owners thereof...................................................... 596 4. The recovery, however, would be for the benefit of him paying the the debt ........................................................... 596</p>

<p>1. Notice of Appeal Not Entered Upon Minutes. This case was dismissed by the Court of Civil Appeals, for the reason that notice of appeal did not appear in the transcript. Motion for rehearing was urged, alleging “that the notice of appeal had in fact been given in open court and had been entered upon the judge’s docket. The motion was supported by affidavit of counsel as well as by certificate of the judge and of the clerk of the court where the case was tried. ’ ’ Held, error to overrule the motion for rehearing. The court should have set aside the order of dismissal and granted a reasonable time to amend the minutes of the trial court, and to perfect the record in the Court of Civil Appeals ............ 597</p> <p>2. Cases Adhered to—Notice of Appeal. Telegraph Company v. O'Keefe, ante, p. 423, and Cavanaugh v. Peterson, 47 Texas, 197, adhered to as to practice where notice of appeal has been given but omitted from record............................................... 598</p>

<p>1. Due Course of Law. By the law of the land is meant the general law, which hears before it condemns, proceeds upon inquiry, and renders judgment only after trial..... 601</p> <p>S. Constitutional Law—Hog Law Unconstitutional. Articles 4605, 4606, and 4607, Revised Statutes (being part of chapter 4, title 93), are in conflict with section 19 of article 1 of the State Constitution, in that the property of the citizen may he taken and disposed of without due course of the law of the land. The remedy is for a private wrong. There is no trial, no right of appeal, and the rights of the owner have no protection. 602</p> <p>3. Local Election Adopting the Hog Law. The Legislature has the power to submit the adoption of the law preventing certain animals from running at large in counties and subdivisions within a division of territory designated by person signing an application for an election upon the question of such adoption of the law to the territory...... 603</p> <p>4. Stock Laws—Constitution Construed. Under section 23, article 16, of the Constitution, the Legislature is empowered to pass a law regulating live stock—making it applicable to the entire State, or to a given county or subdivision of a county. Such law could be made effective by direct enactment or upon direct vote of the freeholders of the locality. 603</p>

<p>1. Action, in Trespass to Try Title for Land Occupied by United States Army Officers. The proposition that Stanley and his codefendants, although officers of the United States and in possession of the lot sued for, by virtue of the authority of the United States, could not be sued for the property and the rents, is no longer open to contention............................................. 605</p> <p>2. Cession of State Authority. The fact that the Governor of Texas ceded to the United States jurisdiction over the property is of no importance. Neither the State nor the United States could take plaintiff’s property without making compensation, or without due process of law........................................... 605</p> <p>3. Suit Against the United States. A suit for land by its owner against United States officers occupying it as a military post, is not a suit against the United States................... 605</p> <p>4. Improvements in Good Faith. Under our statutes, a possessor in good faith may maintain his claim for value of improvements by showing, that in the exercise of reasonable diligence he has acted upon a well-grounded belief produced by circumstances, such as advice of counsel, that he has acquired the title. It is more a question of fact than of law................................................... 606</p> <p>5. Rights of United States—Parties. If the United States were parties in the suit, they have not shown error affecting their rights in the property. If they are not parties, they are not entitled to appeal. It is therefore not decided whether they are or were made parties to this suit.................................................. 607</p> <p>6. Limitation of Five Years—Payment of Taxes—Land Exempt. Officers of the United States occupying a military post when sued for the land may defend under the statute of limitations of five years, although not paying taxes. That the land is exempt from taxation relieves the occupant from payment as a requisite to defense under the five years statute of limitations ............................................................. 608</p>

Certified Question from Court of Civil Appeals for Third District, in an appeal from Comal County. The statement, with the question certified, is here given: “This suit was brought by plaintiffs, John R. Shook, T. T. Vanderhoeven, and Emmy Dittmar, devisee and independent executrix of the estate of Albert Dittmar, to recover $3000 for legal services rendered by the firms of Shook & Dittmar, and Shook, Dittmar & Vanderhoeven, in the case of Jacob Obertv. Joseph Landa.

<p>Application for writ of error in case in District Court of Tom Green County.</p> <p>Eo statement is necessary other than the opinion.</p>

Question Ceetified from Court of Civil Appeals for First District, in a case appealed from Colorado County. The statement and question certified are here given.

<p>1. Practice in Supreme Court. An appellant can not complain of an error committed against a party who does not appeal..................................................... 626</p> <p>2. Landlord and Tenant—Subletting Includes Assigning. A covenant in a lease that the lessee had the right to sublet the premises runs with the land and authorizes the lessee to assign the lease. Such assignment conveys the term. After assignment by lessee he could not surrender the lease or any right under it........................................ 626</p> <p>3. Contract—New Relations. Rights arising out of contract can not be transferred if they involve a relation of personal confidence, such that the party whose agreement conferred these rights must have intended to be exercised only by him in whom he actually confided. Pollock on Contracts, 4 ed., 425 ............................. 626</p> <p>4. Same—Right to Buy Not Assignable. A lease conceded to the lessee the right to buy the leased premises, and gave the right to sublet. A mortgage of the premises by the lessee was good as to the term of the lease, but did not pass the privilege of buying,........ 627</p>

The pleadings and testimony are sufficiently stated in the opinion.

<p>Questions Certified from Court of Civil Appeals for Fifth District, in an appeal from Hopkins County.</p> <p>Questions submitted: Under the Revised Statutes, article 3227, as amended by the Act of the Legislature approved March 29,1893 (Acts 1893, page 48), where the requisite number of qualified voters of a county have petitioned the County Commissioners Court to order an election to determine whether or not the sale of intoxicating liquors shall be prohibited in such county, in a case where there is no contested or doubtful issue of fact, and where it is clearly the duty of the Commissioners Court under the law to issue the order for such election, and they refuse to do so, have such petitioners, as qualified voters of such county, such an interest as will authorize them to sue out a writ of mandamus in the District Court to compel such County Commissioners Court to issue the order of election?</p> <p>If so, is it necessary for them to bring such suit in the name of the State by them, as relators?</p>

J. C. Hardin, the defendant in error, recovered a judgment in the County Court of Bowie County against the Mathews Lumber Company, and W. L. Whitaker, receiver, etc., for $380.80 and costs of suit, for services rendered, and for the foreclosure of the statutory lien upon a railroad and equipments used by the defendants. It seems that the contention was over the question of the lien. The judgment was affirmed by the Court of Civil Appeals.

<p>Certified Questions from Court of Civil Appeals for First District, iu an appeal from County Court of Colorado County.</p>

<p>In Probate of Will the Wife of Legatee a Competent Witness. Under the Revised Statutes, articles 2246, 2247, and 2248, and articles 4859 ' and 4872, the wife of a legatee is competent as a subscribing witness to testify to the execution of the will in a proceeding for its probate. Neither her relationship nor interest affects her competency..................... 646</p>

The following extract from the opinion in the Court of Civil Appeals will show the matters referred to in the refusal to grant the writ of error: “The testimony of the witness had already shown relations towards A. S. Collins which were more than friendly during the time of the claimed marriage relation between him and Hortense Dix Collins.

<p>Conflict in Decisions as Ground for Writ of Error. One of the exceptional cases in which the writ of error may he granted where a judgment is reversed and cause remanded, is where “any two of the Courts of Civil Appeals may hold differently on the same question of law.” Article 1011a, Act April 13, 1892. The fifth, sixth, and seventh exceptions in the article cited were inserted for the purpose of enabling this court, upon the first opportunity, to settle questions of law upon which conflicting opinions were held by any of the courts having appellate jurisdiction. It was not the intention to give this court jurisdiction in such cases where this court has already determined the point. It will be presumed that the court whose ruling has been reversed will conform to the decision of this court.. 650</p>