Volume 88 — Texas Reports

<p>1. Charge—Practice.</p> <p>A charge correct so far as it goes, and deficient in not covering the law in fall applicable to the case, when not sought to be corrected by request for a more specific charge, is not ground for reversal............................. 4</p> <p>2. Evidence of Fraud—Fraudulent Conveyance.</p> <p>Great latitude is allowed in the introduction of evidence upon the questions of fraud. It seems where the transfer of possession is in issue that it was competent as a circumstance to show the sale of part of the property the subject of the controversy, by the maker of the alleged fraudulent conveyance, and after its date............................................. 4</p> <p>3. Charges Requested—Practice.</p> <p>It is apparent from articles 1319,1320,1321, and 1303 of the Revised Statutes, that it was intended that the trial judge should pass upon each instruction asked separately, noting Ms action thereon; and therefore that the charges requested by counsel can not be refused as a whole because of an error in one of them...................................................... 6</p> <p>4. Duty of Court in Acting Upon Requested Instructions.</p> <p>Counsel presented instructions which were in distinct propositions. Some were clearly proper. The court indorsed the paper: “The foregoing special charge requested by the defendants is refused by the court to the jury, for the reason that the same as a whole does not present the law applicable to the case.” In this the court did not comply with the requirements of the statute, article 1320, Revised Statutes............................ 5,7</p> <p>5. Preparation of Instructions by Counsel.</p> <p>In preparing instructions, attorneys must take the risk of putting them in proper form for the court to act upon separately. If two propositions be so united that the court must pass upon them at the same time, one being correct and the other not, the judge will not be required to reconstruct the charge, but may refuse it as asked, stating his reasons................. 7</p> <p>6. Error in Refusal of Charge.</p> <p>Distinct paragraphs in a charge refused supplied defects in the general charge given by the court, that to avoid .the assignment for fraud it was necessary that the vendee or assignee participate in the fraud, and that if the assignee, who also was a creditor, took possession of the goods in good faith, it was . not void. Held, the refusal of the entire charge was reversible error..... 7</p> <p>7. General Assignment.</p> <p>If an instrument be a general assignment under the statute, then the fraud of both assignor and assignee would not render it void. It would take effect in favor of creditors........................................... 8</p> <p>8. Fraudulent Contract.</p> <p>A fraudulent conveyance is good between the parties to it. See illustration.8</p> <p>9. Same.</p> <p>An insolvent mercantile firm conveyed to a creditor their stock in business, the trustee to take possession and sell, proceeds of sale after payment of assignee’s debt to be pro rated among other named creditors, is an assignment, not a mortgage. The property is not subject to attachment, but will be administered under the statute..................................... 8</p>

<p>1. Jurisdiction of Supreme Court—Amount.</p> <p>The petition for writ of error must show that the amount in controversy is beyond the jurisdiction of the County Court............................ 10</p> <p>2. Same—Case in Judgment—Practice.</p> <p>Application for writ of error ip case where the judgment of the District Court, which had been affirmed by Court of Civil Appeals, was for §862.50. Nothing in application or accompanying records showed the amount claimed. Held, that jurisdiction was not shown. (By amendment, the defect was supplied.) 10</p> <p>3. Practice—Pleading.</p> <p>Smith v. Telegraph Company, 84 Texas, 359, limited. The case was contested upon the testimony, and it was held that the facts showed liability of the telegraph company. No question of pleading was raised.......... 12</p> <p>4. Charge—Mental Anguish—Negligent Delay.</p> <p>It was sufficient to charge the jury on the subject of damage for mental anguish suffered from not reaching his father before his death, that the plaintiff, upon proving negligent delay, etc., was entitled to recover for such anguish as was occasioned by his being deprived of the privilege of attending his father before his decease. It sufficiently limits the recovery to damages caused by the delay....................................... 13</p> <p>5. Burden of Proof—Excusing Delay.</p> <p>It being proven that the dispatch was received, or that it reached the office of destination in time, by the use of ordinary care, for its delivery in time for the addressee to have reached his father, and that it was not so delivered, it was not error to charge, that if there were any facts or circumstances excusing the delay, it devolved upon the company to show them............ 13</p> <p>6. Cause of Action.</p> <p>It devolved upon the plaintiff to prove the contract, and the negligence of defendant in failing to keep it; and also to prove, that if the message had been delivered with reasonable dispatch he could have reached his father. The intervening distance and means of travel and consequent time required for the journey are not of such general interest as to be determined without evidence...................................................¡........ 13</p> <p>7. Allegata et Probata.</p> <p>A cause of action proved hut not alleged will not support a verdict: An express contract alleged as ground of action must be proved. See example of variance, requiring reversal........................................ 14</p>

<p>Error to Court of Civil Appeals for Second District, in an appeal from Hardeman County.</p> <p>This litigation involved the liability of the newly incorporated city of Quanah for the debts of a defunct corporation occupying the same territory, but declared void. Judgment was rendered in the District Court in favor of the defendant, the new corporation. On appeal, the judgment was reversed by the Court of Civil Appeals and judgment rendered for the plaintiff for his debt, and against the new corporation. It was assigned as error, that “the legal effect of the decision and judgment of the Court of Civil Appeals is to sanction the creation and imposition of a debt and lien upon the property of the taxpaying-property holders without their consent, and in a way not provided or sanctioned by law.”</p>

<p>1. Parties.</p> <p>A widow, joined with her children, sued for damages for personal injuries suffered by her before her husband’s death. It not appearing that injury resulted to defendant from the fact that the children were-joined as plaintiffs, the court will not determine whether they were proper parties. The joinder is no ground for reversal..................................... 23</p> <p>2. Duty of Railway Employes to Keep Outlook—Trespassers.</p> <p>The doctrine held by some courts, that a railway owes no duty to a trespasser wrongfully on its track, has never been adopted in this State, but has been expressly repudiated................................................. 24</p> <p>3. Same.</p> <p>It is the duty of the servants of the railway company operating its trains to use reasonable care to discover persons on its track, and a failure to use such care is negligence on the part of such company, for which it is liable in damages for an injury resulting therefrom, unless defeated by evidence of contributory negligence by the person injured........................ 24</p> <p>4. Same—Case in Judgment.</p> <p>The plaintiff was injured while walking upon the line of defendant between its tracks at a place much used by the public as a passway. A failure to use ordinary care at such place to avoid inflicting injury would be negligence. A greater diligence and watchfulness was required to prevent injury to persons walking, where there was such constant presence of pedestrians, than on a portion of the track where persons were less likely to be. 25</p> <p>5. Ordinary Care May Require a Varying Diligence.</p> <p>While the degree of care imposed upon both the plaintiff (if a licensee) and the road was that of ordinary care, yet to constitute ihis degree of care, the exercise of more vigilance was required at a public place than would have been required of either at any place where there was less probability of collision ........................................................... 25</p> <p>6. Rashness Induced by Fright.</p> <p>Where one by his own wrongful act has so terrorized another that such other is thereby impelled to do an act resulting in his injury, the wrongdoer can not shield himself from liability by showing that the person so terrorized did not act as a reasonably prudent person would have acted under similar circumstances. Applied where plaintiff was walking between two railway tracks at a much frequented place, and was frightened by a train passing her without signalling its approach; in her fright she jumped against the passing train and was injured........................................ 26</p>

In the petition for writ of .error it is alleged, that “the precise and only question for adjudication in this case is, when does a chattel mortgage take effect as against the creditors of the mortgagor, where it is forthwith deposited with and filed in the office of -the proper county clerk? From the moment of its execution and delivery, or from the moment that it is filed?” In the trial court, it was held that the mortgage took effect from its execution.

The facts are given in the opinion. The litigation involved the validity of a deed of trust executed by an insolvent debtor to secure the beneficiaries. The deed of trust was held fraudulent by the trial court, which decision was reversed by the Court of Civil Appeals.

The city of Sherman, a municipal corporation, organized under the general laws of the State of Texas, filed its suit in the District Court of Grayson County, alleging, in substance, that it was the owner of a tract of land, described in the petition, upon which had been constructed and placed engines and pumps, boilers, and all necessary machinery to operate a system of waterworks for said city, with divers wells, for the purpose of supplying water; in the said city was…

Bbbob to Court of Civil Appeals for Fifth District, in an appeal from Bexar County. Suit for damages for unlawfully, etc., placing obstructions upon sidewalk, to injury, etc. Plea, general denial and contributory negligence. Verdict and judgment for defendants, which was affirmed in the Court •of Civil Appeals. The petition for writ of error complained: “1.

<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 Third District, in an appeal from McLennan County.</p>

Justice Hell, of said court, not sitting. Suit by Ball, Hutchings & Co. against Presidio County on certain -coupons for interest upon county bonds delivered to Britton & Long. The trial court, without a jury, gave judgment for the county. The judgment was reversed and judgment rendered by Court of Civil Appeals for the plaintiffs.

<p>Error to Court of Civil Appeals for Fourth District, in an appeal from El Paso County.</p> <p>This was an effort by Perkins to establish an equitable lien upon money in receiver Davis’ hands, arising from the sale of the Kansas City, El Paso & Mexican Bailroad, etc. The basis of the equity was, that the claim owned by the plaintiff was for rails furnished the contractors. The contractors were to be paid in bonds secured by mortgage upon the road, etc., to be delivered at the rate of twenty bonds of $1000 each for each mile, to be delivered on completion of each section of ten miles. The grounds of the equity are sufficiently set forth in the opinion. The trial court, acting without a jury, gave judgment in favor of the plaintiff for amount claimed against the contractors and the receiver, but refused the prayer for the lien.</p> <p>On appeal, the Court of Civil Appeals reversed the decree of the District Court refusing the lien, and ordered the payment of the judgment out of funds in hands of the receiver.</p> <p>The opinion of the Court of Civil Appeals complained of in the petition for writ of error (so far as necessary to be stated) is as follows:</p> <p>“The firm of Morris R. Locke & Co., by virtue of the contract, had an equitable lien on the property of the railroad company as soon as that portion of the road which they had constructed had been received by the chief engineer, and having transferred the contract to appellant, he was the holder of the equitable lien as collateral security for the amount due him by Morris R. Locke & Co. ‘Equity considers that done which one has distinctly agreed to do, and is in conscience bound to do. Equity, therefore, treats a mortgage of things not in esse as a contract which attaches itself to the things when they come into being, and enforces it. Upon the principle, that upon every acquisition of property within the description contained in the mortgage a chancellor would decree the mortgagor to execute a mortgage of such subject, it will be considered as though it had been done, and that of every article of property so acquired there was an actual mortgage then executed.7 Jones on Railroad Securities, sec. 122; Jones on Chat. Mort., sec. 175.</p> <p>“We are of the opinion, that the contract is not an entirety, for it is expressly provided, that ‘when any five miles of said road are completed, ready for the rolling stock, upon the certificate of the chief engineer to that effect,7 that the bonds should be issued. We do not think the requirement of the road being ‘ fully completed and equipped7 applies to the five-mile sections for each of which bonds were to be issued, but applies to the condition of the road when taken as a whole. The condition prescribed for each intermediate five-mile section is, that it is ‘ready for the rolling stock.7 The certificate of the chief engineer is a full compliance with the terms of the contract. The provision is, that he shall certify that the road is ‘completed ready for the rolling stock;7 and he does certify that ten miles of the track were laid, that trains had been over the same, and that it was in a condition suitable for traffic. There is in the contract an implied promise on the part of the parties to it to be bound by the award of the engineer, and they are bound by it, unless it was alleged and proved that there was fraud or mistake in the award made by him. 1 Rorer on Rys., 233.</p> <p>“ ‘In short, except for fraud or mistake in matter of computation, it is final. This principle is based not only on the fact that such engineer is the chosen arbiter of the parties, and whose decision is to be final, but also upon the ground of his superior capacity of judgment between them, and the necessity, in such extensive works, of closing-up the accounts at short intervals, beyond the necessity of subsequent inquiry, so that the respective parties may know the true state of their pecuniary matters.7 1 Rorer on Rys., 461, 462.</p> <p>“There was no attempt on the part of the chief engineer to construe the contract; he merely certified to a fact, and by the certificate of that fact the railway company was bound. Railway v. Dilley, 65 Texas, 685.</p> <p>“There was no allegation of fraud or unfairness upon the part of the engineer, or that he made any mistake in giving his certificate, and there is no proof to establish either of these matters. In the absence of both allegation and proof on these matters, the decision of the engineer was final and bound the parties. No fault at any time seems to have been found with his decision, the only objection being that the certificate is not the one required by the contract. From our standpoint, it does not matter whether the parts of the contract referring to What should happen in certain contingencies intended a ‘penalty7 or a ‘forfeiture.7 The railway company first failed to comply with the -terms of the contract in refusing to issue the bonds and pay the subsidy, and rendered it impossible for Morris R. Locke & Co. to finish the railroad. It was agreed between the parties that the receiver should sell the railroad property, the lien, if any, of appellant to follow the proceeds, and we are of the opinion that the money should be subjected to the lien. The judgment of the lower court will be affirmed as to Morris B. Locke & Co., but will be reformed as to the receiver and railway company, so as to foreclose a lien on the $60,000 received for the railway property.”</p> <p>The contention turned upon the effect of the certificate of the chief engineer of the railway, who by the contract had unlimited power to pass upon disputed questions as to the material and work performed under the contract. The certificate is as follows:</p> <p>“OFFICE OF CHIEF ENGINEER</p> <p>“OF</p> <p>“Kansas City, El Paso & Mexican Bailway Company “OF TEXAS.</p> <p>“ To whom, it may concern: “November 30, 1888.</p> <p>“I hereby certify, that on this date ten miles of the track of the Kansas City, El Paso & Mexican Bailroad are laid; that trains have been run over the same, and that it is in a condition suitable for traffic. . [Signed] “C. S. Maston,</p> <p>[l. s.] “Chief Engineer.</p> <p>“Attest: Henry Kevins, Secretary.”</p> <p>There was no other sufficient testimony to the construction of the road according to contract. The bonds were never delivered to the contractors.</p>

The petition claimed damages to city lots of the plaintiff abutting upon a public street, along which the defendant had constructed and was operating an electric street railway. The District Court sustained the demurrer and' dismissed the suit. This was reversed by the Court of Civil Appeals.

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

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Smith County.</p> <p>This was an appeal from a judgment for $500 recovered by Coffin for mental anguish suffered from inability to attend the funeral of his wife’s brother, caused by delay in delivery of a message notifying him of the death and inviting him to attend the burial. Relations of great friendship existed between plaintiff and the deceased. The judgment was affirmed by the Court of Civil Appeals. In the application for writ of error it is alleged, that “the relationship, if any, existing between Coffin and the deceased was not such as justified Coffin’s mental distress or entitled him to any recovery therefor. And the fact that plaintiff in error was negligent, thereby causing the breach of the contract (for delivery of the message), would not entitle Coffin to recover, unless he was of such relationship to the deceased as to justify his mental distress.”</p>

In the petition for writ of error, it is stated that the defendants in error (except Mrs. E. L. Gage and the Presidio Live Stock Company) instituted suit in District Court of Brewster County, Texas, on February 10, 1893, against said Mrs. E. L. Gage and the Presidio Live Stock Company, for the sum of $87,665 and the foreclosure of a mortgage lien on 49,960 acres of land situated in Brewster and Buchel Counties; alleging that said Presidio Live Stock Company had given said…

This was an appeal from a judgment for $10,000 damages in favor of Bancy J. Gay and her daughter against the plaintiff in error for negligently causing the death of the husband and father. The principal matters discussed in this case were decided in answer to certified questions. Railway v. Gay, 86 Texas, 571. The facts are sufficiently stated in the opinion.

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

<p>1. Substitute Deed.</p> <p>A deed reciting, “this deed is a substitute for a deed made heretofore, in which the situation of the land was not properly described,” was competent to pass title against the grantor, at least by estoppel................ 123</p> <p>2. Description—Deed.</p> <p>An assignee in bankruptcy executed a deed for “all the right, title, and interest which L. C. Cunningham (the bankrupt) had and claimed in and to apart of bounty warrant number 2930, for 1280 acres of land, issued to Robert B. Owens, April 13, 1838, by B. E. Bee, Secretary of War, to have and to hold unto him, the said G. W. Levine, his heirs and assigns forever, all the aforesaid right, title, and interest which the said L. C. Cunningham had and claimed in and to a part of the above described bounty warrant.” This deed was not void for want of description of the land.................... 123</p> <p>3. Common Source of Title.</p> <p>In trespass to try title, the defendants claimed under an assignee’s sale in bankruptcy proceedings; the plaintiff, under a subsequent deed from the discharged bankrupt. The parties thus claimed under a common source, and defendants were not required to show title in the bankrupt......... 124</p> <p>4. United States District Court in Bankruptcy Proceedings.</p> <p>The United States District Court in Bankruptcy was not a court of special or limited jurisdiction. The act itself provides, that the court shall be a court of record, and that certified copies of its records shall be evidence of the facts therein stated............................................... 125</p> <p>5. Schedule of Property in Bankruptcy.</p> <p>The title to all the bankrupt’s property which was not exempt passed by the deed of assignment, whether it was properly scheduled or not............ 125</p> <p>6. Power of Assignee in Bankruptcy.</p> <p>Under the bankrupt act of 1867, the duly appointed assignee in bankruptcy of one adj udicated a bankrupt had power to sell the property of such bankrupt. No special order of sale was required under the law.............. 125</p> <p>7. Assignee’s Power to Sell.</p> <p>The statute conferred full power on the assignee to sell without order of sale, and he could sell at private sale. Such sale was not void because not in conformity with General Order No. 21 of Supreme Court, made under the provisions of section 10 of the act..................................... 126</p> <p>8. Sale of Located Certificate Carries the Land.</p> <p>A conveyance by a person in his private capacity of a land certificate conveys the land located by it; and as the bankrupt act prescribed that the assignee shall have the same authority to sell and dispose of the estate as the bankrupt might or could have had if no assignment had been made, it follows that such sale by an assignee would also convey the land................ 126</p>

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

The instrument discussed in the application is as follows: “Know all men by these presents, that we, Bateman & Bro., a firm composed of K. D. Bateman, W. Q. Bateman, and A. J. Bateman, all of county of Tarrant and State of Texas, being justly indebted to the following named parties in the amount set opposite their names, to wit: [Here follow the names of six creditors, and amount owing each.] The above named creditors are herein designated as ‘Class A.’ We are also justly…

<p>Law of Descent—Grandson.</p> <p>Intestate left children and a grandson, whose father was dead, as heirs. The father of the grandchild had died largely indebted to intestate. Held, that the grandchild was not chargeable in the partition with the debt of his father to his grandfather. Such is the construction given to article 1652, Revised Statutes................."................................... 139</p>

<p>Error to Court of Civil Appeals for Fourth District, in an appeal from Webb County.</p> <p>The principal contention made in the petition for writ of error was against the decision of the Court of Civil Appeals in sustaining “the doctrine, that where a tenant under a lease reserving the right to remove his improvements, takes a new lease without such reservation, he thereby waives the right of removal.”</p> <p>The opinion gives a full statement.</p>

<p>Error to CouH of Civil Appeals for Third District, in an appeal from Concho County. The suit was transferred to Concho from Runnels County.</p> <p>The opinion sufficiently states the case.</p>

Plaintiffs in error, taxpayers in city of El Paso, brought this suit to enjoin the issuance by the city of certain waterworks bonds. The injunction was refused by District Court and the judgment was affirmed by Court of Civil Appeals. The findings of fact by the trial judge, adopted by the Court of Civil Appeals, are as follows: “1. The taxable property of the city of El Paso for the fiscal year beginning March 1, 1893, is $5,359,190. “2.

<p>1. Election of Remedies.</p> <p>Where a party who has a choice of remedies upon a cause of action pursues one of them to final judgment, he thereby makes an election by which he must he held. He can not have successive suits against the same parties in order to determine whether ór not he might recover upon a phase of the case not presented in the first action................................... 182</p> <p>2. Same.</p> <p>Nor does it affect the conclusiveness of the former judgment as an election, that the facts relied upon as basis of the second suit were not known at the institution of the first suit, as they could have been set up by amendment; nor is the election defeated by the partial invalidity of the first judgment, e. g., in being a money judgment against a nonresident upon ordinary citation by publication.................................................. 182</p> <p>3. Case in Judgment.</p> <p>Green loaned money to Burleson and Gray, taking a mortgage to secure it upon lands owned by the borrowers. Gray sold his interest in the lauds . to the Wards, taking their obligation to pay his half of the loan from ''Green. Green sued Burleson, Gray, and the Wards. Service by publication on Gray, and only foreclosure asked as against the Wards. Judgment and decree accordingly. At the foreclosure sale, Green purchased at a sum less than the judgment. Green then sued tire Wards, setting up their obligation to pay executed to Gray. Held, that Green was concluded by the first suit............................................................ 183</p>

<p>1. Illegal Combination—Anti-Trust Law.</p> <p>See contract held, to show on its face a combination prohibited by the act defining trusts, approved March 30, 1889 ................................ 189</p> <p>2. Anti-Trust Law.</p> <p>Said Act of March 30, 1889, is not in violation of the Constitution......... 190</p> <p>3. Illegal Contract.</p> <p>Parties can not recover damages for breach of a contract in aid of a combination illegal in its purpose. See example .............................. 190</p> <p>4. Sale of Goods which May Be Applied to Illegal Purpose.</p> <p>The vendor of goods to a combine in violation of the anti-trust law, knowing of the illegal combination and the use to be made by the purchasers, can not recover for the value of such goods.............................190</p> <p>5. Same.</p> <p>If, however, the seller did not know nor is charged with knowledge of such illegal use by purchaser, he can recover............................... 190</p>

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

Questions Certified from Court of Civil Appeals for Second District, in an appeal from Baylor County. The statement and questions certified are here given: In this case the following facts are made to appear by the allegations of the plaintiff’s petition, to which an exception was sustained by the trial court: 1. In July, 1890, the city of Seymour was incorporated, observing all the forms of law.

Suit for damages for personal injuries received by plaintiff, an employe of the defendant, the lumber company. Suit was originally filed in Trinity County, venue changed to Polk, then to San Jacinto, and finally to Houston County. Several trials were had—73 Texas, 78; 85 Texas, 56. The last judgment was for plaintiff for $10,000. The judgment was affirmed on appeal by the Court of Civil Appeals.

<p>1. Bona Fide Purchaser—Payment.</p> <p>In 1892," Brooks, by general warranty deed, conveyed the land in controversy to Flannikin, who had no notice of an older unrecorded deed from Brooks to Steele, made in 1835, for same land. In a litigation between claimants under the two deeds, Flannikin, in March, 1893, testified, that Brooks had sold the land to Hood, witness’ uncle, and that Hood had sold it to witness, and had Brooks to make deed to him; that on or about the date of the deed witness had paid Hood the purchase consideration in money and labor. Held, these facts showed Flannikin to have been a bona fide purchaser.... 211</p> <p>2. Same—Registration Laws.</p> <p>The equity of the bona fide purchaser is made by the statutes of registration a legal right. It grows out of the fact that he has parted with a valuable consideration for the land, without notice of the prior grant. He is protected, because the first grantee, through neglect, put him in a position to be defrauded....................................................... 212</p> <p>3. Payment of Consideration.</p> <p>Flannikin’s payment to Hood, whereby he obtained the deed from Brooks, was as effectual as if paid direct to Brooks............................. 212</p>

<p>Application for writ of error to Court of Civil Appeals for Third District, in an appeal from Tom Green County.</p> <p>Suit was brought June 10, 1892, in the County Court. January, 1893, the case was transferred to the District Court, on account of disqualification of the county judge. The case was tried in May, 1893. On appeal, the judgment was affirmed by the Court of Civil Appeals. The cause of action was within the exclusive jurisdiction of the County Court.</p> <p>In application for writ of error, it was complained that the Court of Civil Appeals had erred in deciding that the District Court had jurisdiction under the Constitution and laws of the State to try the case at the date of the trial.</p> <p>‘ ‘At the date of transfer from the County Court to said District Court, and at the time of trial in said District Court, exclusive jurisdiction to hear and determine this cause is and was, by the Constitution of the State, conferred upon the County Court of said county.</p> <p>“1. Section 16 of article 5 of the Constitution, as amended in 1891, was in force at the date this cause was transferred from said County Court; and it repealed all former laws and constitutional provisions authorizing transfer of causes from County Courts to District Courts on account of disqualification of county judges.</p> <p>“2. The amendment of 1891 to section 16, article 5, of the Constitution, was self-executing, and its provisions are not and can not be aided and enlarged by the Act of April 26, 1893, relating to the appointment of special judges of County Courts.</p> <p>“ 3. If the foregoing propositions are not sustained, then applicant submits, that the question of the jurisdiction of the District Court to try this cause is to be determined by the statutes in force at date of trial, and not by statutes in force under the Constitution prior to the amendment of 1891, at date of the transfer from the County Court. At the date of trial in the District Court, May 23, 1893, the Act of April 26,1893, relating to appointment of special judges of the County Courts, was in force.</p> <p>“4. The proviso to subdivision number 4 of article number 1139c (Act of April 26, 1893, Laws 1893, p. 76), attempting to confer jurisdiction on District Courts over cases heretofore transferred from County Courts, is unconstitutional and void, because the jurisdiction of District Courts is conferred and limited by the Constitution, and can not be enlarged in respect to the case at bar by act of the Legislature.</p> <p>“5. Even if said proviso be not held unconstitutional, as above contended for, then said proviso has no application to the case at bar, for the reason, that said proviso is and was intended to apply to cases only that had been lawfully transferred from County Courts to District Courts on account of disqualification of county judges under the Constitution and laws in force prior to the amendment of 1891; and the scope and extent of said proviso should be so limited by the courts, and should not be held to apply to any case transferred on account of disqualification of a county judge after the amendment of 1891 took effect.”</p>

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

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

This was an action brought by the appellee against the appellant, in the District Court of Montague County, for damages for mental distress occasioned by delay in the delivery of a telegram, filed with the appellant at Falcon, Tenn., on March 11,1892, by J. N. Jeanes, a brother of appellee, addressed to appellee, at Belcher, Texas, reading: “Father is very low with catarrhal pneumonia.

<p>1. Houston City Waterworks—Liability.</p> <p>The Houston City Waterworks Company, operating under a contract with the city, is not liable at suit of a property owner of the city for damages from ' fire, on the ground that the water company had not kept its-water pressure up to its contract gauge ..................................i.......... 238</p> <p>2. Same.</p> <p>The City of Houston by its charter had power to provide a system of water works.for extinguishing fires, etc., and to maintain a fire department. The city authorities contracted with parties, who were subsequently incorporated as the Houston Waterworks Company. The company obligated itself to construct and maintain a first-class system of waterworks, and to keep up a sufficient pressure, etc. The petitioner, House, sued for damages from destruction of a lumber yard in the city by fire, alleging that the loss was caused from an insufficient water supply. Held:</p> <p>1. As a general rule, no person can sue upon a contract except he be a party to the contract, or in privity with it............................. 238</p> <p>2. Nor can House maintain an action in tort for breach of such contract growing out of the failure of the waterworks company to keep up its pressure of water as its contract with the city required. Such action can arise only in favor of one who is a party to the contract, or in whose favor the contract was avowedly made.......................................... 240</p> <p>3. Nor is the waterworks company liable from having assumed a public duty, for negligent failure to perform which a person injured may maintain an action........................................1.............. 241</p> <p>3. Liability from Neglect of Duty.</p> <p>Where a statute enacts or prohibits a thing for the benefit of a person, he has a remedy under the statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to said law. And any one undertaking a public duty is liable for its negligent performance to a sufferer from such negligence....................................... 241-246</p> <p>4. Same.</p> <p>By the contract its object is stated to be, “in order to supply the city of Houston with water,” and the uses for which it is to be applied, “to maintain the cleanliness and health of the city, for extinguishing fires, and for the protection of property of the inhabitants of said city,” etc. Besides these general provisions, the contract provides for a supply of water to private consumers at given rates. Neither these nor any other parts of the contract justify the conclusion that the waterworks company should assume any duty to the citizens in the performance of the contract.................. 347</p> <p>5. Same.</p> <p>If the city had been operating its own waterworks, and had failed to supply water, as did the defendant, and the same consequences had resulted to plaintiff, it would not have been liable for the property burned. And we think that the defendant, acting under a contract in performance of the duty imposed upon the city by law, could not be charged with greater responsibility than the law imposed upon the city itself................... 248</p>

Chief Justice James, having been of counsel, did not sit in the case in the Court of Civil Appeals. The opinion gives a sufficient statement.

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

The contention in this suit involved the liability of E. Y. Brown for certain debts of his nephew, W. O. Brown, incurred when he was a minor, to the Farmers and Merchants National Bank; also the liability of certain assets conveyed by W. O. Brown to J. C. Brown, trustee, in which E. Y. Brown was the preferred creditor, the bank standing-next after him.

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

<p>1. Local Option—Druggists, Etc.</p> <p>A person engaged in the sale of spirituous, vinous, or malt liquors, in quantities of one gallon or less than one gallon, in the manner and under the limitations provided in the local option law, and in a county or subdivision of a county where the local option law is in force, is not. liable to the occupation tax of a retail liquor dealer as fixed by the Act of 1893. Gen. Laws, p. 177.............................................................. 283</p> <p>2. Same.</p> <p>The adoption of the local option law in any such locality relieves persons engaged in selling liquors therein, for the purposes permitted by the local option law, from the liquor dealer’s occupation tax provided for in the said Act of the Legislature ............................................ 283</p>

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

<p>1. City Marshal—His Power.</p> <p>The marshal oí a town incorporated under the general laws of the State, by virtue of his office, under the circumstances specified in article 229 of .the Code of Criminal Procedure, can lawfully arrest one accused of a felony committed outside the limits of his town, but within the county......... 289</p> <p>2. Marshal as Peace Officer.</p> <p>Under the circumstances named in article 229, Code of Criminal Procedure, a marshal of a town incorporated under the general law can exercise the power conferred by said article upon peace officers beyond the limits of his town, where the arrest is for a felony committed within the county, although not within his town.......................................... 289</p> <p>3. Marshal Has Powers of Sheriff.</p> <p>Under article 363, Code of Criminal Procedure, the marshal of a city or town has the same power that the sheriff of the county has in the matter of the prevention and suppression of crime and arrest of offenders.............. 289</p>

Questions Certified from Court of Civil Appeals for First District, in an appeal from Galveston County.

<p>1. De Facto Officers—Information.</p> <p>Officers of a town incorporated by special act May 22, 1871, were elected at a time not authorized by the act of incorporation. The elections were fair, and succeeding elections were held at the same wrong date. No coriupt intention nor disadvantage to the town from such administration of its offices was shown. The relator claims no right to either of the offices alleged to be illegally held. Under these conditions, the district judge had the discretion to deny leave to file the information, for the reason that its prosecution would be a public injury, while no private right was sought to be vindicated...................................................... 299</p> <p>2. Judgment Affirmed if Rightly Rendered.</p> <p>It is the settled practice of this court not to disturb a judgment which has been rightly entered upon the facts of the case, although the trial judge may have given a wrong reason therefor. See example ................. 299</p>

<p>1. Chattel Mortgages—Statute Construed.</p> <p>Article 3190a, Revised Statutes, provides: “All reservation of title to or property in chattels as security for the purchase money thereof shall be held to be chattel mortgages, and shall, when possession shall be delivered to the vendee, be void as to creditors and bona fide purchasers, ’ ’ unless duly registered. The language is plain, and admits of no other construction. Whenever the transaction assumes that shape, the law gives it the character of a chattel mortgage between the parties, as well as to all others........... 301</p> <p>2. Same—Rights of Vendor.</p> <p>Under such contract the vendor may resume possession, but as mortgagee, and he can not legally convert it. The vendee has right to any excess upon its sale over the debt and costs......................................... 302</p>

<p>1. Property Taken for Public Use—Public Roads.</p> <p>The provision in the Constitution of 1876 touching property taken, etc., that “such compensation shall be first made or secured by a deposit of money,” was an additional guaranty for the protection of the rights of the owner. And the express exception made where property is taken for the use of the State includes condemnations for public roads by .Commissioners Courts .. 307</p> <p>2. Public Roads.</p> <p>It is one of the functions of government to establish and maintain public roads; and no matter through what agency such function is exercised, the roads are the property and for the use of the State...................... 307</p> <p>3. Condemnation Proceedings—Public Eoad.</p> <p>Dulaney v. Nolan County, 85 Texas, 225, adhered to as to construction of the clause of the Constitution of 1876 as to adequate compensation for land taken for public roads, viz., value of land taken and damages to remaining lands ....................................................... 309</p> <p>4. Same—Statute Construed.</p> <p>Article 4372, Revised Statutes, as amended in chapter 13, Eighteenth Legislature, page 22 (February 5, 1884), prescribed, that the Commissioners Courts shall * "x" * “allow to such owner just damages and adequate compensation for the land taken.” This is in conformity with the Constitution. The “just damages” may be offset by benefits to the adjoining land, if they exist; but both the Constitution and the statute unconditionally command that “adequate compensation” be made lor the land taken, and no offset thereto can be allowed.................................. 309</p> <p>5. Injunction—Adequate Compensation.</p> <p>As the Constitution commands that “adequate compensation” shall be made for property taken, courts of equity have ample power to enforce its mandate as against a collusive or colorable order designed to defeat the constitutional provision................................................... 310</p> <p>6. Case in Judgment.</p> <p>The jury of view of a public road surveyed through Trogdon’s lands reported no damages, although the road covered lands shown to be worth 660. The county commissioners adopted the report, allowed Trogdon no damages or compensation, and ordered the road opened. Trogdon appealed. Pending the appeal, the road overseer was proceeding to open the road. Trogdon obtained an injunction from the District Court, which was made permanent on hearing. Held, that in refusing to allow Trogdon “adequate compensation for the land taken ” the commissioners failed to comply with either the statute or the Constitution. And in failing to pay or secure same “by deposit with the county treasurer,” it failed to comply with the statute, and therefore had no authority to order the opening of the road; and they were properly enjoined until such compensation should be made or secured. .305, 310</p>

<p>Charge—Duplicating Damages.</p> <p>In action for personal injuries, it was error, after charging upon the subjects for which damages might be allowed, to specify the particular items. Such charge suggests double damages. See example ........................ 312</p>

<p>1. Cases Adhered to—Certiorari.</p> <p>O’Keefe v. Railway, 87 Texas, 423, and Railway v. Peery, 87 Texas, 597, adhered to. Certiorari after judgment on appeal, to perfect the record.....313</p> <p>2. Certiorari—Case in Judgment.</p> <p>A case on appeal was affirmed in the Court of Civil Appeals, the court ignoring important assignments of error, for the reason that the statement of facts was not signed by the trial judge. Motion for rehearing was filed, with application for certiorari to show that the judge had signed the statement; accompanying the motion was the district clerk’s certificate and affidavit to the fact. Held, that the certiorari should have been granted..... 314</p> <p>3. Practice—Jurisdiction.</p> <p>Upon perfecting the record, it appears that there is a conflict in the testimony on material issues in which error was assigned, and the verdict is attacked as excessive. It is therefore necessary to remand the case to the Court of Civil Appeals, as it alone has jurisdiction to revise the judgment below upon matters of fact................................................. 314</p>

The chief justice and the two associates being disqualified, the Governor appointed as special judges in this case and the next… Held: that the finding of the jury that said note did not prove suicide, as alleged, was an erroneous finding, and manifestly and palpably against the evidence, and that such finding of the jury required a reversal of the case, and so held before passing upon the other alleged errors above referred to, the- latter being treated as venial…

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

<p>1. Chattel Mortgage in Equity.</p> <p>In equity, a lien may be created without the passing of the legal title. Where one agrees to execute a mortgage upon certain property, and at the time he is called on to perform his agreement he has the ability to do so, eqnity will either compel its execution, or, in a suit to enforce the lien, will consider that as done which ought to have been done, and enforce the agreement as a mortgage ......................................................... 344</p> <p>2. Same—Case in Judgment.</p> <p>It appearing that the parties to a mortgage upon the crop to be grown the next year by the mortgagor upon land upon which he had been operating as a tenant, but for which he had no lease for said next year, contemplated the crop raised on the land described in the contract should be brought into existence, and become subject to the lien. Such agreement attached to said crop, and became a lien thereon. Such lien our courts exercising equity powers will enforce.................................................. 346</p>

<p>1. Citation Against Railway Company.</p> <p>A citation directing the officer to summon an agent of the railway company, served upon the agent named in the citation, does not give the court jurisdiction of the railway company; and a judgment rendered upon such service is void........................................................ 349</p> <p>2. Void Judgment—Legal Remedy—Injunction.</p> <p>The defendant in a void judgment can not resort to the equitable remedy of injunction until the legal remedy by certiorari has been exhausted. While he can apply for a certiorari, he is not entitled to an injunction.......... 349</p> <p>3. Levy—Property Pointed Out by Defendant.</p> <p>Under article 2287, Revised Statutes, a defendant desiring to point out for levy personal property, shall deliver such property into the possession of the officer. See example not in compliance with the statute............. 350</p> <p>4. Real Estate of Railway Company.</p> <p>Both the real and personal property of railway companies is subject to execution, and depot grounds thus are liable. It does not appear that the grounds levied upon had been acquired by condemnation proceedings............. 350</p>

This suit was originally instituted in the County Court of Tarrant County, Texas, at the November Term, 1886, by appellees, John Mitchell and Lizzie Winters, joined by the latter’s husband, J. W. Winters, to set aside a former judgment of said court entered on the probate docket at the July Term, 1886, probating a certain written instrument as the last will and testament of Mrs. Lizzie Brown, deceased wife of appellant, and granting letters testamentary to appellant;…

<p>1. Case Limited.</p> <p>Hunton v. Nichols, 55 Texas, 217, discussed and limited.................. 373</p> <p>2. Limitation in Actions for Real Estate—Absence of Defendant from State.</p> <p>Article 3216, Revised Statutes, prescribing, that the temporary absence of defendant from the State shall not be accounted or taken as a part of the time limited, applies to all suits alike. So held in action for land where defendant was a nonresident, and held the land by a tenant................... 374</p> <p>3. Limitation.</p> <p>Statutes of limitation discussed......................................... 374</p> <p>4. Honresident Limitation.</p> <p>Article 3216, Revised Statutes, does not apply to a nonresident who has not been in the State................................................... 374</p> <p>5. Possession by Agent.</p> <p>We are of opinion, that the possession of land by an agent should be deemed to have the same effect as possession by a tenant....................... 374</p>

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

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

The Court of Civil Appeals consisted of Judge Collard and Special Judges L. H. Brown and L. J. Storey, appointed instead of Chief Justice Fisher and. Justice Key, who were disqualified. Action of trespass to try title by Hanrick, claiming under an alleged grant for ten leagues of land, of date October 22, 1833, made by L. Lesassier, alcalde, etc., to Rafael de Aguirre. The defendant claimed under pre-emption claims, surveyed May 4, 1876.

<p>1. Parties—Interest Involved.</p> <p>The matter involved was a two-thirds interest in certain lands deeded to a trustee. The parties to the suit owned the entire two-thirds. The other one-third interest, owned by others not made parties, not being in litigation, a demurrer for want of parties was properly overruled............. 418</p> <p>2. Same.</p> <p>The general rule as to parties is, that when a hill is brought for relief all persons materially interested in the subject of the suit ought to he made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and that there may be a complete aud final decree between all the parties interested ................................................... 418</p> <p>3. Same—Equitable Proceedings.</p> <p>Title to lands was vested in a trustee. The lands were obtained under a contract declaring, that one-half the lands went to persons who composed the party of the first part, and one-half to those who composed the paity of the second part. The contract did not definitely settle the interest of each person in the half assigned to the party of which he is a member. The litigation being a claim asserted by purchase from some of the persons composing the first- part, it affected the other part owners of said party of first part. In such case, they were necessary parties, iu order that the rights of all persons concerned might be settled; and it was eiror to overrule the exceptions for want of the necessary parties................................. 419</p> <p>4. Decree—Trust.</p> <p>In litigation by a part owner of lands vested in a trustee to he administered under a contract under which the plaintiff holds, it was error to grant possession as against the trustee. Decree is here rendered establishing the interest in the land (Cotton addition to El Paso) claimed by plaintiff, to be administered by the trustee under said contract.................... 420</p> <p>6. Secondary Evidence.</p> <p>A witness testified, that he had obtained from the district clerk an execution; that he had lost it, and had made diligent search for if, without success. This was sufficient evidence to allow the witness to testify to the contents of the lost paper.................................................... 420</p>

<p>Husband May Determine the Homestead.</p> <p>The husband, acting in good faith, may select the homestead of the family; and when he has acquired a new home, and his wife has removed wifh him to the newly acquired homestead, a deed previously made by him, without her concurrence, to the former homestead, becomes operative as to the husband as an estoppel against his right to recover the property. The wife’s right, being that of homestead only, ceases when a new homestead has been acquired and she moves thereto. See example.....................427, 428</p>

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

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

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

<p>1. Homestead—Street Assessments.</p> <p>The Constitution exempts homesteads from forced sale for the payment of assessments for local city improvements................................. 461</p> <p>2. Homestead—Taxes Due Thereon.</p> <p>The term, “taxes due thereon,” as intended in section 50, article 16, of the Constitution, does not include assessments for local improvements by a city or town ...............................................'........... 462</p> <p>3. Case Overruled.</p> <p>Lufkin v. City of Galveston, 58 Texas, 545, overruled so far as it holds the homestead liable to forced sale for city assessments for local improvements— streets, sidewalks, etc............................................... 464</p> <p>ON MOTION FOE BEHEABING.</p> <p>4. Jurisdiction of Question.</p> <p>The record in this case contained, in the statement of facts, the petition in the foreclosure suit for the assessment upon which default judgment was rendered, with order of sale under which defendant in error claimed; in said petition it was alleged, that the plaintiffs in error owned and occupied the lots against which the lien was asserted. Sale was made under the foreclosure, and the lots were purchased by defendant in error. These facts, appearing in the record, involved consideration of the homestead rights of plaintiffs in error. The action was by the purchaser under the decree foreclosing the alleged tax lien to recover of Higgins and wife their homestead condemned and sold to satisfy the assessment for street improvements .............................................................465</p> <p>5. Stare Decisis.</p> <p>Where a decision of this court is considered to be antagonistic to the express provisions of the Constitution of this State, the doctrine of stare decisis can not be invoked to sustain such decision................................ 467</p>

<p>1. Case Adhered to—Insolvent Corporation.</p> <p>Lyons-Thomas Hardware Company v. Perry Stove Manufacturing Company, 86 Texas, 143, adhered to. An insolvent corporation having ceased to do business, can not make a mortgage by which it gives a preference to some of its creditors over others............................................ 482</p> <p>2. Evidence of Insolvency.</p> <p>The record shows, that the company (plaintiff in error) at the time of executing the deed of trust was largely indebted; that to secure a part of its creditors only, it conveyed and delivered to the trustee all of its assets, with power to convert them into money, and to apply the money to payment of the debts named. This was evidence of insolvency, authorizing a finding of insolvency....................................................... 483</p> <p>3. Simple Contract Creditors.</p> <p>An insolvent corporation having attempted, by deeds of trust, to direct the proceeds of sale of its assets to favored creditors, the unsecured, although only simple contract creditors, could maintain suit to avoid such deeds of trust, and to restore the property to the trust fund created by law in its assets as an insolvent corporation, for benefit of its creditors. It was not necessary that such claims should be matured into judgments before action to protect the fund.................................................. 483</p> <p>4. Joinder of Causes of Action.</p> <p>In suit against a trustee and certain beneficiaries, to avoid the deed of trust and to restore the fund directed thereby to its lawful purpose under orders of the court, it was proper to join in the suit the beneficiaries to whom the trustee had paid money under the trust deed sought to be annulled.......483</p> <p>5. Parties—Trustee.</p> <p>In suit to set aside a deed of trust preferring creditors, made by an insolvent private corporation, the beneficiaries in the trust are not necessary parties; the trustee represents all the creditors for the purpose of sustaiuing the deeds under which he holds for their benefit........................... 484</p> <p>6. Case Limited.</p> <p>Preston v. Carter Bros., 80 Texas, 388, overruled, so far as in conflict with Hudson v. Milling and Elevator Company, 79 Texas, 401................ 484</p> <p>7. Pleadings.</p> <p>In suit by unsecured creditors against the trustee to set aside the deeds of trust, the beneficiaries named in the trust deeds intervened, each setting up his claim and asking payment. In progress of the litigation the trustee converted the assets into money, and distributed the funds, under orders of the court, in accordance with the trust deed. By amendment the plaintiffs alleged, “that they were not sufficiently informed as to whether payments had heen made by the trustee to the interveners to enable them (plaintiffs) to allege the fact of payment or the amount so paid, but prayed that the two banks (interveners) be required to produce in court the money paid to each.” This was sufficient to notify the hanks of what was sought to he enforced against them. It was competent, under this state of the pleadings, to show what sums the trustee had paid to each, and to render judgment therefor ................................................. 485</p> <p>8. Void Order Will Not Protect a Receiver or Trustee.</p> <p>A trustee is hound to know the law, and must act at his peril in the execution of a void order; if the invalidity arises from the want of power in the judge to make the order at the time it was made, it will not protect the trustee............................................................. 486</p> <p>9. Trustee—Receiver.</p> <p>Upon application for appointment of a receiver, the district judge in vacation continued a trustee in control of the property in litigation; prescribing bond, inventory, reports, etc., substantially as if receiver had been appointed expressly. This was but an irregularity, and the appointment was substantially a receivership..........................;............ 486</p> <p>10. Power of District Judge in Vacation.</p> <p>A judge of the District Court in this State has no power to adjudicate the rights of litigants except at the times and places prescribed by law for holding courts, unless the authority is conferred by statute. Such adjudication in vacation is void............................................. 486</p> <p>11. Suits Against Receiver.</p> <p>A creditor firm brought suit against the trustee, setting up claim to part of the property. Pending this suit, the plaintiff joined with others in the suit to set aside the trust deeds and for appointment of a receiver. It was not error to permit said plaintiff to dismiss the latter suit and prosecute the suit first brought. As suit can he maintained against a receiver after his appointment without leave of the court, so a suit pending at his appointment could be x>rosecuted without such leave...................... 487</p>

<p>Error to Court of Civil Appeals for Fourth. District, in an appeal from Bexar County. Chief Justice James not sitting.</p> <p>The opinion gives a fall statement of the matters discussed.</p>

Lankford instituted this suit in the District Court of Cooke County to recover of plaintiff in error $12,285 for personal injuries to his wife, alleged to have been received in a collision between a wagon in which she was riding and one of appellant’s trains, in the city of Gainesville. Defendant answered by general denial, and by special answers raising-all the issues made by the evidence.

The contention in this case is as to the construction of the mechanic’s lien law requiring notice' of each item as furnished, and the right to a lien as between the contractors and materialmen;’ the contractors having executed their promissory note for a part of the claim of the materialmen, which was negotiated upon their indorsement and by them paid at maturity. The owner of the building was privy to the execution and indorsement of the note.

<p>Jurisdiction, of Supreme Court.</p> <p>Dissent of one of the judges of a Court of Civil Appeals is only a ground for writ of error in cases of which the Court of Civil Appeals does not have final jurisdiction.................................................... 513</p>

Suit was by Bham et al. for $500 on breach of warranty against Eliza Gallagher, a remote warrantor of title to a tract of land. Plaintiff recovered $280. The defendant appealed, and the judgment was reversed by Court of Civil Appeals and judgment was rendered for the defendant, upon the ground that a deed by a receiver, under which the plaintiff claimed, was void for want of a sufficient description of the land.

These were original suits in this court for mandamus against the Comptroller to compel him to furnish the applicants blank licenses for prize fighting. The petition by McMeans, tax collector for Hays County, was presented to Justice Denman on September 25, and that of Byrom, tax collector for Williamson County, on September 27,1895.

<p>1. Application for Writ of Error—Assignment of Errors.</p> <p>Among other things, the petition for writ of error must contain specific assignments of the errors complained of. The assignments must be express and direct. So much of an assignment as is argumentative is unnecessary and improper....................................................... 523</p> <p>2. Practice in Applications. The application being defective, ten days’ time was allowed within which to supply the defects by amendment..................................... 524</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>1. Cross-Examination—Specific Acts Evidencing Inattentiveness.</p> <p>It being in issue whether a competent car inspector had been in employ of the railway at time of a train wreck resulting from a defective car wheel, the inspector having been called as witness by the railway, it was competent for the plaintiff, suing for damages for death of an employe in the wreck, on cross-examination, to ask the witness whether he inspected the cars of the railway company at specified days subsequent to the wreck. The testimony was competent on question of attentiveness of the witness as car inspector, as also to test the memory of the witness.................. 537</p> <p>2. Bill of Exceptions—Cross-Examination.</p> <p>In a bill of exceptions to the exclusion of questions to a witness on cross-examination, it is not necessary to state what answers were expected to the excluded questions...............................................538, 539</p>

<p>1. Duties and Bights of County Attorney.</p> <p>Articles 260, Revised Statutes, not only confers power but imposes a duty upon the county attorney to perform the acts therein specified. It requires of the county attorney, that in case it shall come to his knowledge that any officer intrusted with the safe keeping of any public funds is in any manner neglecting or abusing his trust or failing to discharge his duties under the law, it shall be the duty of the county attorney to institute such proceedings as are necessary to preserve and - protect the public interest. This includes the duty to proceed against a- county treasurer and his sureties, where such treasurer had lost largely of the county funds by failure of a bank in which' the treasurer had deposited the county funds in his own name............................................................... 543</p> <p>»</p> <p>2. Same.,</p> <p>That a suit in such case had already been instituted by other attorneys employed by the county commissioners did not relieve the county attorney from the duty of prosecuting such suit, nor deprive him of his privilege to discharge that duty.- The county commissioners could not displace the county attorney from his position and rightful authority under the law as an officer of the county................................'.............. 543</p> <p>3. Same.</p> <p>In refusing to permit the applicant, Terrell, as county attorney, to participate in the management of the suit by the county against the county treasurer, etc., the district judge deprived him of the right to discharge the duty imposed upon him as such county attorney........................ 544</p> <p>4. Same.</p> <p>The county attorney having been refused the right to participate in the management of such suit by the district judge, could not appeal from such - refusal............................................."............544, 545</p> <p>5. Same.</p> <p>Nor did the county attorney have complete remedy at law for such refusal. That he might recover commissions upon tendering his services did not .meet the legal and moral obligation resting upon him to discharge the duties of his office independently of compensation..................... 545</p> <p>6. Same—Mandamus.</p> <p>Mandamus lies in such case under section 3, article 5, of the Constitution, as amended in 1891, and article 1012, Revised Statutes, as amended by chapter 14, Laws Twenty-second Legislature, called session (April 13,1892); and . the Supreme Court has original jurisdiction to grant the writ of mandamus against a district judge in all such cases as are allowable at common law.. 545</p> <p>7. Judicial Discretion.</p> <p>While every judicial act. involves an act of will and is quasi discretionary, yet the courts may not, under guise of judicial discretion, disregard with immunity the express laws of the land when invoked upon facts about which there is ho dispute.........................................546, 547</p> <p>8. Mandamus—When Issued.</p> <p>If a judge of the District Court or other officer, by the construction placed upon the law, deprives a citizen of an unquestioned legal right under.circnmstances that the citizen has no right of appeal, and therefore no other adequate remedy, then a court having power conferred upon it by law to issue a writ of mandamus has the right to review the judgment or decision of the trial court or officer upon such question.......................... 547</p> <p>9. Same—Public Officers.</p> <p>In case of public officers the general rule is, that where a person holds an uncontested title to an office mandamus may be issued to put him in possession; or where he has an undisputed right to exercise the functions of an office, and having actual and undisputed possession, he is illegally ousted or suspended from the performance of its duties, he may be restored to his rights as such officer by writ of mandamus............................. 548</p>

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

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

<p>Error to Court of Civil Appeals for Fourth District, in an appeal from Bexar County. Chief Justice James not sitting.</p> <p>The facts are given in the opinion.</p>

<p>1. Powers of Corporation—Implied.</p> <p>In every express grant there is implied a power to do whatever is necessary or reasonably appropriate to the exercise of the authority expressly granted. 568</p> <p>2. Implied Powers of Corporation.</p> <p>Whatever he a company’s legitimate business, the company may foster it by all the usual means; but it may not go beyond this. If the means be such as are usually resorted to¡ and a direct method of accomplishing the purpose of the incorporation, they are within its x>owers; if they be unusual, and tend only in an indirect manner to promote its interests, they are to be held ultra vires................................................... 568</p> <p>3. Same.</p> <p>A corporation, created for the purpose of carrying on a business under a statute, which merely states the nature of the business and does not further define its powers, may exercise such powers as are reasonably necessary to accomplish the purpose of its creation; and it may be such as are usually incidental in practice to the prosecution of the business, and no more............................................................... 570</p> <p>4. Case in Judgment.</p> <p>The Fort Worth City Company and the Northside Street Railway Company were both organized under the general laws of the State; the purpose of the first being, “the purchase, subdivision, and sale of lands in cities, towns, and villages;” and that of the second, “the construction and maintenance of street railways.” Neither of these companies had the power to extend its credit to foster the interests of the other (the one being the development of a city suburb, the other a railway connecting the suburb with the city). The issuance by the two companies of joint bonds, dividing the proceeds, was equivalent to borrowing the money to be divided between them—each to be the surety of the other. This they could not do in absence of statutory authority..................................... 570, 571</p> <p>5. Powers of Corporation.</p> <p>The furtherance of neither company can be considered as reasonably necessary to the business of the other...................................... 571</p> <p>6. Construction of Charters.</p> <p>It seems that the powers of a charter under the general law should be more strictly construed as to implied powers than if granted under a special act of the Legislature................................................... 572</p> <p>7. Street Railways.</p> <p>The law does not recognize the operation of street railways as the usual means of carrying out the purpose of a corporation organized to purchase and subdivide lands, and to sell them in city lots....................... 572</p> <p>8. Bonds of Corporation—Constitution.</p> <p>Section 6 of article 12 of the State Constitution prescribes, that “no corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void.” It seems that an indebtedness as surety would be obnoxious to this, and so prohibited............................................... 573</p> <p>9. Bonds Void in Part.</p> <p>The bonds of the two companies would be binding on each to the extent of value received by it for which they had been issued..................... 573</p> <p>10. Same.</p> <p>There being no fraud in the Transaction whereby the two corporations issued their joint and several bonds, we see no reason why each should not be held liable for so much of the indebtedness evidenced by the bonds as it could legally have bound itself to pay................................ 574</p> <p>11. Corporation Lending its Credit by Indorsing, etc.</p> <p>Nor could the investment company bind itself by indorsing the obligations, in signing jointly with the street car company for machinery to be used in running the cars upon the railroad.................................... 574</p>

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

Bexar County. The judgment in the trial court was reversed in the Court of Civil Appeals, and jurisdiction was had from a dissent in that court.

<p>1. Petition for Writ of Error.</p> <p>The petition for writ of error should state the nature of the case (not the case), and the specific grounds upon which the writ is asked. No matter should be inserted which appears in the statement of the case by the Court of Civil Appeals, in its conclusions of law, or in the opinion of that court. 592</p> <p>2. Same.</p> <p>It is expected that applications conform to the statutes and the Rules of the Supreme Court, chapter 91, Laws Twenty-fourth Legislature, page 144 (May 6, 1895), and Rule 1 of Amended and New Rules for Supreme Court, 87 Texas, xvii......................................................... 592</p> <p>3. Practice on Application.</p> <p>The application being defective both in the insertion of unnecessary matter and in absence of specific assignment of errors, ten days’ time was given within which to amend............................................. 593</p>

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

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

<p>Question Certified by Court of Civil Appeals for Third District, in an appeal from Travis County.</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 Third District, in an appeal from Bobertson County.</p> <p>The ground upon which the writ of error was asked was error in the trial court and in the Court of Civil Appeals, in holding that the defendant company was liable to plaintiff for the acts of the engineer and fireman in discharging hot water upon plaintiff by mistake, when they only intended to discharge cold water, for their own amusement.</p> <p>“It was error to so hold, because said act was done by said servants outside of their duty to the master, and outside of the scope of their employment; and such an act could not have been contemplated by the master when said servants were employed and said implements placed in their hands.</p> <p>“Said act was in no way connected with the operation of the engine, and was not done as part of their duty to defendant, or in furtherance of its business or interest, or in discharge of any duty to it; but was done by said employes on their own personal account and for their own private amusement, and to serve a purpose of their own entirely foreign to their duties to defendant.”</p>

<p>1. Elying Switch.</p> <p>It having been found as a fact that the railway employes had cut loose a number of freight cars upon a switch track at dangerous speed, it was irrelevant to show the custom of other railways in making flying or drop switches. It was the manner, and not the fact, which caused the negligence........ 614</p> <p>2. Explaining Absence of Witnesses.</p> <p>It was not error to allow the plaintiffs to prove that they had two certain witnesses subpoenaed, and that they were in employ of the defendant, and were absent.............................................................. 614</p> <p>3. Care—Duty of Employe—Volunteer.</p> <p>D. was killed in a collision caused by the railway employes cutting loose three or four freight cars upon a side track, at dangerous speed, which collided with cars upon the switch under the control of deceased. He was an employe of a coal mining company, and conducted the work of weighing and loading coal from a chute at the switch upon cars furnished by the railway company. On seeing the danger from the approaching cars, he mounted a car standing on the track in order to put on the brakes and prevent a collision upon the ear which was at the chute, and partly loaded. Eeld, that D. was not a volunteer in attempting to protect from injury the ears under his charge. He was in the line of duty to his employer, the coal company, . and not serving the railway company.................................. 615</p> <p>4. Same.</p> <p>D. had the right to enter upon the cars of the railway company which were placed under his control for the shipment of coal. He was entitled to protection against the negligence of the railway employes, as would be any other person rightfully upon the track................................. 615</p>

<p>1, Limitation—Covenant of Warranty.</p> <p>Limitation does not run against a covenant of general warranty from its date, but from its breach.................................................. 617</p> <p>2. Rights of Warrantee.</p> <p>Upon sale of a part of several tracts of land which had been conveyed to the vendor by deed with general warranty, the warranty passes with the land to the vendee of such part in proportion that such part bears to the whole. It could not revest until the vendor in the sale of such part satisfies his vendee’s claim for damages under such warranty....................... 617</p> <p>3. Case in' Judgment—Remedy on Warranty.</p> <p>Action of trespass to try title against Fosdick and Alvord for several tracts of land conveyed by warranty deed by Eustis to Fosdick. Fosdick had sold one of the tracts, with warranty, to Alvord. Fosdick vouched Eustis on his warranty. On recovery by the plaintiff, it was proper to enter judgment in favor of Fosdick against Eustis for the amount of his warranty, less the proportion thereof which the land conveyed to Alvord bore to the whole; and further, for the remainder of the consideration in the warranty, with stay of execution until Fosdick should satisfy the claim of Alvord upon the warranty.................................................. 618</p>

<p>1. Leading Questions.</p> <p>A witness was asked: “Please state whether you are testifying from your own knowledge or from what people have told you. If you say it is from your own knowledge, state what part; also, if you state some of it is from what some one has told you, please state what part, and who that is dead told you.” To the question it was objected, that it “was leading and suggests to the witness, and assumes that the parties who made the statements elicited were dead.” Held, the objections were not well taken. The question is not leading................................................. 621</p> <p>2. Pedigree—Hearsay Testimony.</p> <p>It was competent, to prove the death of the grantee under whom plaintiffs ' claimed as heirs, for a witness, after stating that his brother, mother, and brother-in-law, from whom he had the information, were dead, to testify: “I heard he died on his way to Mexico. * * I know my mother, brother, and brother-in-law told me about W. W. Wallingford; that he came to Texas in 1833 or 1834; taught school in Gonzales County; started to Mexico. * ":i * When I last heard of him he lived in Gonzales County, Texas. I believe he died on his way to Mexico. ’ ’ The statement about his teaching school was irrelevant, but immaterial.....................621, 622</p> <p>3. Hearsay.</p> <p>It was incompetent for a widow as a witness to testify, to sustain a conveyance to her husband, that he “frequently spoke of owning the certificates, and of the transfer of them from Wallingford. He said he lost the transfer of them while crossing the Colorado River.” It was hearsay............ 622</p> <p>4. Landlord and Tenant—Tenancy.</p> <p>The relation of a tenant under a lease is not affected by the.sale of the land by the landlord, nor by a breach on part of the landlord of an agreement to give the tenant the privilege of purchasing. The purchaser can not be affected in his rights in the land by transactions between the tenant and others claiming the land............................................. 622</p> <p>5. Certificate of Acknowledgment to Deed.</p> <p>Since the Revised Statutes went into effect (September 1,1879), the certificate of the officer must show that the person making the acknowledgment was known to him to be the grantor in the conveyance, or that proof of the fact was made before him................................................. 623</p> <p>6. Parol Sale of Land Certificate—Charge.</p> <p>There being circumstantial evidence showing a sale of the land certificate whose ownership was in issue, the court should have charged the jury to the effect, that title to a land certificate could be transferred by a verbal sale without a written assignment. The instruction given upon the subject was misleading. It grouped the elements of a sale of the certificate together with a direction that it was incumbent to prove that each of them existed............................................................ 623</p> <p>7. Charge Misleading.</p> <p>A charge, that “the evidence introduced before you [enumerating circumstances in evidence] are none of them evidence of title either to the land or the certificate, or either of them, but you are to consider such matters only as circumstances tending to show, if they may, whether or not there has been a sale of the certificate.” The jury may have believed therefrom that they could not find from the testimony that the title had passed..... 624</p> <p>8. Practice—Evidence.</p> <p>Depositions of a woman were offered. Much of her testimony had been excluded as hearsay. It was error to instruct the jury, touching that part admitted, that “If it clearly appears to you that the testimony of the witness -to any material fact testified to in her depositions is based upon what others told her, considering as you must the whole of her deposition, you should disregard the same.” The testimony should go to the jury without comment affecting its weight.................................. 624</p> <p>9. Charge.</p> <p>It is error to single out by name a witness and charge the jury that they are judges of her credibility and of the weight to be given to ber testimony. It is not relieved by adding, that they were like judges as to credibility of all the other witnesses............................................... 624</p> <p>10. Presumption.</p> <p>Evidence showed that the grantee, the intestate, left eight brothers and sisters, including the ancestor of the plaintiffs, and that the other brothers and sisters had all married, but had died, leaving children. What became of these children does not appear. In the absence of evidence, it is not the presumption that they too are dead................................... 625</p> <p>11. Trespass to Try Title by Joint Tenant.</p> <p>A tenant in common, by action of trespass to try title, can not evict a defendant by merely showing that he (the plaintiff) has an undivided interest in the land. He can not evict a joint tenant, but only a trespasser; and to</p> <p>recover, the plaintiff should prove that the defendant is a trespasser...... 625</p> <p>12. Trespass to Try Title by Joint Tenant—Limitation.</p> <p>Filing suit by one or more joint tenants in trespass to try title only stops limitation as to their interest in the land. The statute runs as to others, unless prevented by coverture, etc., which must be shown...................... 625</p>

<p>1. Probate Courts.</p> <p>Previous decisions have settled beyond controversy that our Probate Courts are courts of general jurisdiction in matters pertaining to estates of de- • ceased persons.................................................... 630</p> <p>2. Probate Sales are Proceedings in Bern.</p> <p>The proceedings in probate to sell the land for payment of the debt for which it was charged by deed of trust, was a proceeding quasi in rem, and the devisees were parties thereto.......................................... 630</p> <p>3. Direct Attack Upon a Judgment.</p> <p>A direct attack upon a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of the same in a proceeding instituted for 1 that purpose........................................................ 630</p> <p>4. Collateral Attack.</p> <p>A collateral attack upon a judgment is an attempt to avoid its binding force, in a proceeding not instituted for one of the purposes intended by a direct attack; as where, in a suit to try title to property, a judgment is offered as a link in the chain of title, and the adverse party attempts to avoid its effect, etc.......................................................... 630</p> <p>5. Want of Jurisdiction.</p> <p>The general rule is well established, that a judgment by a court even of general jurisdiction is void if it had, at the time of its rendition, no jurisdiction of the person of the defendant or of the subj ect matter of the litigation. But it is equally well settled upon principles of public policy, that inquiry by evidence aliunde the record can not be heard in a collateral attack upon a judgment of a domestic court of general jurisdiction regular on its face, as to any fact which the court rendering such judgment must have passed upon in its rendition............................'..................... 631</p> <p>6. Conclusiveness of Judgments.</p> <p>The judgment of the Probate Court confirming a sale made under order of such court can not be attacked in suit by devisees against purchasers by evidence dehors the record, to the effect that the sale was not in fact made at the place required by law.......................................... 632</p> <p>7. Description of Land Ordered to be Sold.</p> <p>An order of sale may refer to the application, for description of land ordered to be sold. The order reciting that such description existed, followed by return of sale and confirmation, it will be presumed that the description was contained in such application when lost or destroyed................ 633</p> <p>8. Irregularity in Order of Sale—Surplusage.</p> <p>In 1874 the statute did not require that an order for sale of land of an estate direct that it be made by the executor. The law required simply that the court order the sale. It was not necessary to state by whom. An order for sale was not vitiated by its requiring sale to be made by the petitioning creditor. The record showed that the sale was in fact made by the executor............................................................ 634</p>

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

This was a contest over the right to administer upon the estate of Thomas Chapman, deceased, between two women, each claiming to be his widow. Johanna seems to have established, a common law marriage—evidenced by cohabitation and repute. They separated, and several years thereafter Emma was married to him under the forms of law. The decision of the Probate Court of Victoria County was in favor of the second marriage.

<p>Error to Court of Civil Appeals for First District, in an appeal front Fayette County.</p> <p>The facts are fully disclosed in the opinion.</p>

<p>1. Power of Vice-President to Employ Passenger Agent.</p> <p>Waldo, as vice-president of the Missouri, Kansas & Texas Railway, chartered in Kansas, and vice-president of the Missouri, Kansas & Texas Railway Company in Texas, incorporated under the laws of Texas, had no power to bind said companies, or either of them, by a contract with a passenger agent for a stated term. See facts.............................f"........651, 652</p> <p>2. Power of Officer of Corporation.</p> <p>A party dealing with an agent of a corporation must, at his peril, ascertain what authority the agent possesses, and is not at liberty to charge the corporation by relying upon the agent’s assumption of authority, which may prove to be unfounded............................................... 652</p> <p>3. Limit to Power of Agent of Corporation.</p> <p>An officer of a corporation organized under the laws of this State could not bind it by contract for services to be performed jointly for it and in the interest of another corporation........................................ 653</p>

<p>Error to Court of Civil Appeals for Fifth District, in an appeal from Dallas County.</p> <p>The opinion sufficiently states the facts.</p>

<p>1. Dissent in Court of Civil Appeals Upon the Facts.</p> <p>While the Supreme Court has jurisdiction in case of dissent in the Court of Civil Appeals, yet if thé application and accompanying papers show that the dissent was upon a question of fact, the writ will be refused, as this court would have no power to revise the action of the Court of Civil Appeals ............................................................... 661</p> <p>2. Same.</p> <p>The majority of the Court of Civil Appeals held, in effect, that if the verdict was not without evidence to support it, it was against such a preponderance of the evidence that the judgment should be reversed. The decision of that court was final—being upon a question of fact................... 661</p>

<p>1. County Court as Board' of Land Commissioners.</p> <p>The Act of 1846 organizing Commissioners Courts, styled therein “County Courts,” provided, that such courts should “exercise all the powers which by law are invested in the County Courts, or boards of county commission-; ers, or chief and associate justices, as land commissioners.” And such courts had jurisdiction to grant unconditional land certificates to parties showing themselves entitled thereto.......................................... 664</p> <p>2. Same—Recitals in Land Certificate.</p> <p>In July, 1847, the Commissioners Court of Guadalupe County had power to hear an application for an unconditional certificate in behalf of an assignee of a conditional certificate, and to determine whether a lawful assignment thereof had been made or not. Their recital on the face of the certificate, that the assignee had presented a regular transfer from the original grantee, was conclusive of the ownership by the assignee against heirs of the original grantee.......................................................... 664</p>

Ebbob to Court of Civil Appeals for Second District, in an appeal from Bosque County. The instrument upon, which the plaintiff in error rests for title is set out in the opinion. It was a power of attorney irrevocable, authorizing the attorney to recover lands in Texas, and giving one-half interest therein. The contract bore date June 26, 1876.

<p>1. Answer in Mandamus Suit.</p> <p>In proceedings for mandamos, when citation to show cause, etc., has been served upon a defendant, an answer by general demurrer, followed by a general denial, does not put the plaintiff upon proof. The hearing is as upon facts admitted............................................... 675</p> <p>2. Mandamus Against State Executive Officers.</p> <p>Section 4 of chapter 12, Laws of Seventeenth Legislature, 1881, page 7, prescribing, that ‘ ‘ No court of this State shall have the power to issue the writ of mandamus, etc., against any officer of the executive department of the State, ’ ’ was not repealed by article 1012, Laws of 1892, page 21, prescribing, that “the Supreme Court or any justice thereof may issue writs of mandamus * * * against any district judge or officer of the State government, except the Governor of the State.” Save as modified, the first is still in force. Both articles were properly included by the codifiers......................... 676</p> <p>3. Mandamus—Statutes Construed.</p> <p>Articles 946 and 4861, Revised Statutes of 1895, construed together and looking to the legislative intent, limit the effect of article 4861, and its effect is as if it read: “No court of this State except the Supreme Court shall have power * * * to issue the writ-of mandamus * * * against any of the officers of the executive departments of the government of the State,” etc ................................................................ 677</p> <p>4. Same.-</p> <p>The Supreme Court has power to issue the writ of mandamus against any head of a State department in a proper case........................... 677</p> <p>5. Amendment to Bill When in the Hands of Governor.</p> <p>The Legislature has the power to amend a bill which has been passed by both houses and sent to the Governor for his action, within the ten days allowed him for its consideration, and before he has taken action upon it......... 678</p> <p>6. Same.</p> <p>The amendatory Act of April 16,1895, chapter 48, Laws Twenty-fourth Legislature, page 75, is valid in amending .chapter 47, same Legislature, in increasing the rental for pasture lands from 2 to 3 cents an acre____........ 678</p>

Hogan filed suit in the District Court December 5, and service of citation was had December 6, 1893.