Volume 93 — Texas Reports

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Bowie County.</p> <p>Leary brought suit against the association and the latter had judgment against him on its plea in intervention. He appealed and upon affirmance procured writ of error. The following is, in part, the opinion of the Court of Civil Appeals:</p> <p>“Key, J. — The court below seems to have treated the two sums of $185.77 each, found to have been paid as interest and premiums, as interest stipulated to be paid for the $1800 that was loaned, and the total of the two sums being in excess of the highest rate of interest permitted by statute in this State, the contract, to this extent, was treated as usurious, and the payments referred to were applied to the principal debt. The appellants are not satisfied with only this reduction, but contend that there is another element of usury in the contract and that the $480 found by the jury to have been paid on stock in the association should be applied as a credit on the principal debt. This contention is based upon the answer given by the jury to the tenth special issue submitted, to the effect that Dan T. Leary purchased the shares of stock of defendant simply to secure a loan.</p> <p>“On the face of the contracts which purport to fix the rights of the parties, .Dan T. Leary occupied a dual relation of stockholder in and borrower from the association. A person can be a stockholder in a building and loan association, and can also be a borrower from such association, and if the relation of stockholder is created in good faith and not as a subterfuge to avoid the law against usury, the question of usury is •to be determined without reference to the fact that the borrower is also a stockholder. On the other hand, although the face of the papers may show the person to be a stockholder, as well as a borrower, yet, if it be made to appear that by agreement between the association and the borrower the stock was subscribed for and issued merely as a device to disguise an agreement to pay usurious interest, then the money paid ostensibly in payment for stock will be applied as a payment on the principal debt.</p> <p>“It will be noted, however, that this question was not submitted to the jury and no finding was made thereon. The response by the jury to the tenth question, which was relied on by appellant, does not go far enough to show that this part of the contract was usurious. The finding is somewhat ambiguous, but it is susceptible of the construction that, while Leary as a matter of fact and in good faith purchased shares of stock in the association, he did not do so expecting to realize a profit from the investment, but made the purchase in order to render him eligible as a borrower from the association; and, though this may have been his object and purpose, the purchase of stock in the association should not be construed as a contract to pay illegal interest. Association v. Lane, 81 Texas, 369; Association v. Logan, 33 S. W. Rep., 1088. , And, certainly, the finding referred to does not show that there was an agreement or understanding between Leary and the association that he was not in fact to become a stockholder, and no matter what may have been his purpose in entering into the contract, if that purpose was different from what appears on the face of the paper, and was not known to and participated in by the association, then the parties are bound by the face of the written instruments. The burden rested upon appellants to show such an agreement or understanding - between Leary and the association as would authorize the conclusion that the stipulation in the contract for the purchase of stock was a mere device to cover up. an unlawful contract for interest; and, as the jury have not found that such was the purpose of the contract, and that fact was not proved by uncontroverted testimony, we must decline to reverse the judgment.</p> <p>“On the question referred to there was evidence which would sustain a finding that the contract for the purchase of stock in the association was made in good faith and not as a subterfuge to avoid the statute against usury; and, such being the case, under article 1331 of the Revised Statutes as amended by the called session of the Twenty-fifth Legislature (see General Laws Twenty-fifth Legislature, page 15), the case must be disposed of in this court just as if there was such finding.”</p>

Rand sued Cotton and others and recovered judgment. Defendants appealed and on affirmance of judgment obtained writ of error.

Hendrix sued Gracey in trespass to try title. Defendant had judgment, and on plaintiff’s appeal this was reversed and judgment rendered for appellant. Appellee Gracey thereupon obtained writ of error.

<p>Damages — Mental Suffering — Passenger Carrier — Wrong Ticket.</p> <p>Mental suffering occasioned to a woman, unused to traveling alone, by having to stop over in a strange town to wait for money and for the correction of her ticket, made out over wrong route and to wrong destination by mistake of the ticket agent, is an element of damages recoverable for such wrong. (P. 34.)</p>

<p>1. Indorser — Suit at First Term. — Insolvency of Principal.</p> <p>AVithout approving the ruling of the Court of Civil Appeals herein that suit on all of three notes, secured by vendor’s lien and falling due at different dates, must have been brought on maturity of the first, in order to hold liable, without protest, an indorser upon one of the notes maturing at a later date, it is held that their conclusion that the indorser was released was correct, — suit having been brought on neither note at the first term after maturity and the insolvency of the principal, as an excuse for a failure to do so, not being established. (Pp. 36, 37.)</p> <p>2. Same — Insolvency Defined.</p> <p>Insolvency of the principal is made to excuse suit against him at the first term on the ground that such suit would result in no good (Revised Statutes, article 1204), and such insolvency is not established when any part of the debt can be made by execution against him, — the term as used in the statute not bearing the technical sense of inability to meet his obligations in the regular course of business. (Pp. 36, 37.)</p> <p>3. Same — Vendor’s Lien.</p> <p>A principal debtor holding property against which a lien may be enforced to secure the note sued on, is not insolvent, within the meaning of the statute, so as to excuse suit at the first term in order to hold his indorser. (P. 37.)</p>

<p>1. Writ of Error — Reversed Cause — Overruling Former Decision.</p> <p>In order to give the Supreme Court jurisdiction to review, on the ground that it overrules a former decision, a judgment reversing and remanding, a well defined conflict between the two decisions must appear. (P. 37.)</p> <p>2. Same — Cases Distinguished.</p> <p>The ruling of the Court of Civil Appeals in this cause (52 Southwestern Reporter, 96), distinguished from that in Stephens v. Mathews, 69 Texas, 341. Though the grounds on which it is sought to distinguish a case from a former decision may be questionable, a decision professing to adhere to, but to distinguish, can not give the Supreme Court jurisdiction on the ground that it overrules. (P. 38.)</p>

Jones sued the city for injuries to his wife, and recovered a judgment which was affirmed on defendant’s appeal. The city obtained writ of error.

• The suit was by Strawn against Bassett and the Trust Company. Plaintiff had judgment and the company appealed and on affirmance obtained writ of error.

J. M. Simonton as next friend of Willis, David, Curry, and Prince Simonton, minors, sued White in trespass to try title. Defendant had judgment, which was affirmed on appeal, and Simonton obtained writ of error.

House brought suit against Banks and wife, and the latter appealed from a judgment for plaintiff, and on its affirmance by the Court of Civil Appeals obtained a writ of error.

<p>Questions certified by the Court of Civil Appeals for the Fifth District, in an appeal from Navarro County.</p>

<p>Question certified by the Court of Civil Appeals for the Fourth District, in an appeal from Rusk County.</p>

<p>1. Master and Servant — Authority to Eject Trespassers.</p> <p>When one places his property in the possession and under the control of another, the right to protect that possession, as well as the right to prevent any interference with its immediate use, springs out of the posesssion and out of the duty to control and manage it. (P. 67.)</p> <p>2. Same.</p> <p>The fact that a switch engine was operated by defendant’s engineer, who had the absolute possession of the machinery of the engine, was sufficient to warrant the submission of the question of such engineer’s authority from his employer to eject a trespasser riding on the footboard of the engine, though his presence did not interfere with the actual manipulation of the machinery. (Pp. 65-68.)</p>

<p>1. Independent Executor — Death—Powers of Administrator.</p> <p>Where a testator has provided for an independent administration of his estate;, under Revised Statutes, article 1995, the probate court has no power, on the failure to accept or the death of the executor named by the will, to appoint an independent executor with power to settle the' estate without control of the court, such as was. conferred by the will. (Pp. 71-73.)</p> <p>2. Same — Will—Provision for Independent Administrator.</p> <p>An express provision by will that on the death of the independent executor named' the court should appoint an executor with the same powers, can not authorize such appointment; the court can act in such cases only under the general law. (P. 73.)</p>

<p>Questions certified from the Court of Civil Appeals for the First District, in an appeal from Harris County.</p>

Ebbob to the Court of Civil Appeals for the Third District, in an appeal from McCulloch County. Townsend sued Willoughby in trespass to try title, and recovered. Defendant appealed, and on affirmance obtained writ of error.

In the administration of the estate of Pioquinto Linares, deceased, property was set aside to the widow, as homestead, on her application, and this judgment was sustained by the District Court, on appeal by the administrator, but was reversed by the Court of Civil Appeals, on appeal by the widow. The administrator then obtained writ of error.

Vick sued Wilson, and obtained a judgment which was affirmed on appeal taken by defendant, who thereupon obtained writ of error.

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

<p>1. Elections — Manner and. Time of Ordering.</p> <p>The important matter in every election is that the will of the voters should be fairly expressed, correctly declared, and legally enforced. Compared to this, the question as to the manner and time of ordering the election is of trivial importance. (Pp. 107, 108.)</p> <p>3. Same — Removal of County Seat — Contested Election.</p> <p>The determination of an officer empowered to order an election for the removal of the county seat, upon the written application of not less' than one hundred freeholders, resident citizens, that the requisite number of qualified persons had so applied, was conclusive in a suit brought to contest the validity of an election held in pursuance of such order. (Pp. 108-110.)</p>

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

<p>1. Charge of Court — Bight to Affirmative Instruction — Telephone Company.</p> <p>A telephone company which did not undertake to transport and deliver messages, was entitled to a requested charge that it was not its duty so to do (though the charge given based a recovery only on its failure to find and bring to the telephone the party wanted) where the plaintiff's pleadings asserted liability by virtue of such an obligation, and there was evidence to support a finding that, if the obligation existed, it had been violated. (P. 116.)</p> <p>8. Same — Contributory Negligence — Agency.</p> <p>No damages can be recovered for negligence in failing to bring to the telephone one wanted to receive a message, where the sender, the agent of the complaining party, upon the failure of whose attempt to so communicate the action is based, should, in the exercise of ordinary care, have communicated the message by telegraph or otherwise, after abandoning the attempt to telephone. (Pp. 116, 117.)</p> <p>3. Telegraph — Beneficiary—Notice.</p> <p>A telegraph company is not responsible to a person not appearing on the face of a telegram or otherwise known to it to be a beneficiary of the contract, for damages for mental suffering resulting from failure to deliver the message, because given no means of anticipating such suffering as a consequence of its negligence. (Pp. 117, 118.)</p> <p>4. Same — Telephone Company — Damages—Mental Suffering — Notice.</p> <p>Notice to a telephone company that the word sought' to be communicated to G. related to the death of a brother of G.’s wife, and sought to secure G.’s attendance at the funeral, was not sufficient to give notice of any interest of G.’s wife in the intelligence or create liability for her mental suffering by failure to receive the word and to attend the funeral. (Pp. 118, 119.)</p>

Walker, County Judge, brought suit against Anderson and others, sureties on the official bond of Jernigan as County Treasurer, and the latter made the Austin National Bank a party. Being held liable to , plaintiff and refused a recovery against the bank, defendants appealed, and on affirmance obtained a writ of error.

<p>Corporation — Charter—Business Beyond State.</p> <p>A corporation may' be created under the general laws of Texas, 'authorized to do business therein, though authority is also conferred by its charter to hold property and transact business beyond the limits of the State. (Pp. 135-137.)</p> <p>Original application for mandamus to compel the Secretary of State to file the charter of a proposed corporation.</p>

<p>1. Note — Judgment—Dismissal as to One Joint Maker.</p> <p>Judgment against one of the joint makers of a note, after dismissal as to another who was jointly sued and cited and had answered, did not release the latter from liability, and could not be pleaded in bar of a second suit against him. (P. 139.)</p> <p>2. Same — Statutes.</p> <p>Article 1256, Revised Statutes, applies to defendants who are joint promissors; and, if it changes the law requiring them to be jointly sued only so far as to authorize dismissal as to defendants not cited without releasing them, still, article 1203, which permits suit against principal obligors either alone or jointly, has the effect to abolish entirely, as to principals, the common law rule requiring joint obligors to be jointly sued. (Pp. 139-141.)</p>

Ebeob to the Court of Civil Appeals for the Second District, in an appeal from Bosque County. Mrs. Blethen sued Bonner and others for a community interest in lands conveyed to her husband, Levi P. Blethen. Defendants had judgment, and on her- appeal therefrom it was affirmed. She then obtained writ of error.

Question certified from the Court of Civil Appeals for the Second District, in an appeal from Shackelford County. Chief Justice Gaines and Associate Justice Brown being disqualified, Chas. K. Bell was appointed Special Chief Justice and John W. Parker Special Associate Justice, to sit with Associate Justice E. A. Williams in this cause.

Suit was brought by Mrs. Ilarcourt, administratrix, against Gresham,, surviving partner of deceased. Plaintiff had judgment which on defendant's appeal was increased and affirmed, and appellant obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Bosque County.</p> <p>The suit was broiight by Sanger Brothers against Pierson and others. Plaintiffs had judgment in the trial court, which was affirmed on appeal. Pierson then obtained writ of error.</p>

Bobinson and others sued Thompson and others in trespass to try title. Defendants had judgment. Plaintiffs appealed and it was reversed and rendered. Appellees, defendants below, then obtained writ of error.

<p>1. Constitution — Subject of Bill Expressed in Title.</p> <p>The Act of June 16, 1897, limiting compensation of certain officers, embraces but one general subject, and sufficiently expresses that subject in its title, as required by article 3, section 35, of the Constitution, unless it be the portion relating to appointment of deputies. (Pp. 176, 177.)</p> <p>2. Same.</p> <p>If the subject of appointment of deputies is not in the purview of the title of the act, within the constitutional rule, the remaining provisions of the act are not thereby rendered void. (Pp. 176, 177.)</p> <p>3. Same — Cases Questioned.</p> <p>State v. Shadle, 41 Texas, 404, and Bills v. State, 42 Texas, 305, questioned.(P. 177.)</p> <p>4. Constitution — Amending Law by Reference to Title.</p> <p>The Act of June 16, 1897, limiting compensation of certain officers, is not invalid as being an amendment of previous laws by reference to their titles only, prohibited by article 3, section 36, of the Constitution. (P. 177.)</p> <p>5. Same.</p> <p>Constitution, article 3, section 36, does not prohibit the passage of a law (Act of June 16, 1897, in regard to compensation of officers) which declares fully its provisions without reference to any other act, nor does the Constitution require that the entire law as amended shall be set out. Snyder v. Compton, 87 Texas, 374. (P. 177.)</p> <p>6. Constitution — Special or Local Laws.</p> <p>The 'Act of June 16, 1897, reducing the compensation of certain officers, is not a local or special law, such as is prohibited by article 3, section 56, of the Constitution. Beyman v. Black, 47 Texas, 558. (Pp. 177, 178, 180.)</p> <p>7. Same — Special Law Defined.</p> <p>A statute which relates to persons or things as a class, is a general law, while a statute which relates to particular persons or things of a class is special, and comes within the constitutional prohibition. (Pp. 178, 179.)</p> <p>8. Same — Reasonableness of Classification.</p> <p>The authorities questioning validity of statutes on the ground of unreasonable classification of subjects affected by them, questioned. (P. 179.)</p> <p>9. Same.</p> <p>Legislative classification of officers with reference to compensation, based upon the population of their respective counties, can not be pronounced unreasonable by the courts. (Pp. 179, 180.)</p> <p>10. Local Law Defined.</p> <p>A local law is one the operation of which is confined to a fixed part of the territory of the State. A law applicable to the whole State, restricting the fees of officers in counties exceeding a certain population, and subject to change in its application according to the increase or decrease of population of the respective counties, is not a local law, though its operation, in the main, may be restricted to a minority of the counties of the State. (P. 180.)</p> <p>11. Constitution — Commissioners Court — County Business.</p> <p>The Act of June 16, 1897, in regard to fees of officers, is not violative of article 5, section 18, of the Constitution, in prescribing that the county judge shall designate the number of deputies to which certain officers may be entitled; such officers, though called county’’, are in fact State officers, and the number to be allowed is not a county 'affair committed to the commissioners court; the Constitution does not prohibit the Legislature from intrusting to other agencies county business not committed by’ it to the commissioners court; nor is the office of county judge wholly judicial. (P. 181.)</p> <p>12. Constitution — State Bunds for County Purposes.</p> <p>The provision of the Act of July 16, 1897, requiring payment by officers of fees collected in excess of salary into the county treasury is not violative of the Constitution, though some of their fees may be paid by the State out of public taxation. (Pp. 181, 182.)</p>

<p>Commissioner of General Land. Office — Examination of Records — Mandamus.</p> <p>Under Revised Statutes, articles 4043, 4047, 4048, the Commissioner of the General Land Office is intrusted with a discretion as to permitting examination of the records of that office by others than employes, and can not be compelled by mandamus to permit such examination. (Pp. 186, 187.)</p>

Sprowls brought trespass to try title against Bullock, and had judgment recovering land conveyed by him while a minor. Bullock appealed, and on affirmance of the judgment obtained a writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Parker County.</p> <p>Squyres sued Barnett in trespass to try title, and had judgment recovering the land, which was affirmed on appeal by defendant, who then obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.</p> <p>Mrs. Seiders .sued the insurance company and the latter had judgment in the trial court canceling the policy sued on upon return of the premium paid. Plaintiff appealed, and on affirmance of the judgment obtained a writ of error.</p>

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

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

Suit was brought by the First Baptist Church and others, against Fort and others. Plaintiffs recovered, and upon reversal upon defendant’s appeal obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the Third District, in an appeal from Tom Green County.</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Hunt County.</p> <p>Hay ter brought the suit against the railway company, and the latter obtained a writ of error on affirmance by the Court of Civil Appeals of a judgment obtained by plaintiff in the trial court.</p>

<p>^.sFeeor to the Court of Civil Appeals for the Second District, in an appeal from Wise County."”'*’</p> <p>Alice Wood brought habeas corpus to recover the' custody of her child from Daniel Deaton. She appealed from a judgment for defendant, and on its affirmance obtained a writ of error.</p>

<p>1. Minors — Statute—Belief from Disability.</p> <p>A statute requiring or permitting a minor to enter into an obligation, removes, to that extent, his disability; but the intention to take away his incompetency must affirmatively appear in the statute, and is not to be deduced from the mere use of general words, such as “any person.” (P. 253.)</p> <p>2. Same — Salé of School Land — Minors.</p> <p>The authority to buy school land from the State on complying with the terms of the law, given to "any person desiring to purchase” by section 6 of Act of July 8, 1879 (April 6, 1881)), did not authorize purchase by a minor, who could not lawfully execute the required obligation. (Pp. 252-255.)</p> <p>3. Same.</p> <p>The requirement that all who purchase should execute obligations, excludes from those who may purchase persons who are not legally capable of complying with such condition. (P. 253.)</p> <p>4. Contract — State—Officers.</p> <p>The State could only become a party to a contract for sale of school land by compliance with the law by a purchaser; the acts of its officers in that connection are not the acts of the State unless they are such as the statute authorizes. (Pp. 251, 255.)</p>

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Hvalde County.</p>

The suit was trespass to try title, brought by Vidor and wife. Plaintiffs had judgment in the District Court, and defendants appealed. The judgment was reversed and rendered by the Court of Civil Appeals, and plaintiffs, there defendants in error, procured a writ of error from the Supreme Court.

Suit was hy Jackson against the railway company, and the latter obtained a writ of error upon a judgment hy the Court of Civil Appeals affirming a recovery hy plaintiff in the trial court. Certified questions in this case were answered hy the Supreme Court as reported in 92 Texas, 639.

<p>1. Limitation — Equitable Title — Establishing Lost Deed.</p> <p>There is no distinction, in our practice, between actions upon legal and those upon equitable demands; a petition seeking to establish the existence of a lost deed of trust is an action (within the meaning of article 3358, Revised Statutes) which is barred within four years after the right to bring it accrued. (P. 272.)</p> <p>3. Executory Sale — Superior Title — Assignee of Purchase Money Note.</p> <p>The assignee of a purchase money note, — given on an executory sale of land to which the vendor has retained the superior title, — who has taken no transfer of such vendor’s title, has only a lien to secure his note and is without remedy when the note is barred; he can not maintain suit to divest such legal title out of the vendor, nor require him to assert it for his, the assignee’s benefit. (Pp. 272-274.)</p> <p>3. Same.</p> <p>The vendor, after assignment of the note without transferring title to the land, holds his superior legal title in trust for the assignee to the extent only that he can not dispose of it so as to defeat the lien of the assigned nóte. (P. 273.)</p> <p>4. Vendor and Vendee — Superior Legal Title.</p> <p>The law that the express retention in a deed or note of a lien for the purchase money of land by the vendor makes the deed executory, has become a rule of property in this State which can only be changed by the Legislature. (P. 274.)</p>

Certificate of dissent from the Court of Civil Appeals for the Second District in an appeal from Palo Pinto County. York brought this suit against Maddox, and recovered judgment putting him in possession of the office of sheriff. On defendant’s appeal this was reversed and judgment rendered for appellant, a dissenting opinion being filed, and the case was then referred to the Supreme Court upon certificate of dissent.

<p>Urban Homestead — Garden on Detached Dots.</p> <p>The use of a town lot as a garden in which to raise fruits and vegetables for family consumption is sufficient to constitute it a part of the residence homestead, though detached therefrom and in another part of the town. (Pp. 287, 288.)</p>

Original application for writ of mandamus against the Secretary of State to compel him to issue to applicant a permit to do business in the State.

<p>1. School Superintendent — Office—Action for.</p> <p>The position of superintendent of free schools of the city of Houston is an office, and the lawful incumbent has a right to recover it or its emoluments if unlawfully deprived of the benefit. (P. 309.)</p> <p>2. Same — State Superintendent — Jurisdiction.</p> <p>The superintendent of public instruction for the State has no jurisdiction over the question who is the lawful superintendent of schools in a city which has assumed independent control thereof, ner of who constitute its lawful board of trustees. (P. 309.)</p> <p>3. Constitutional Daw — School Trustees — Term of Office.</p> <p>The Act of March 30, 1899, so far as it relates to the election of trustees for public schools in independent districts and fixes their terms of office, is void,— being in conflict with article 16, section 30, of the Constitution, limiting the duration of offices to two years. (P. 309.)</p> <p>4. Office Defined — School Trustee — Position an Office.</p> <p>The position of school trustee comes within the definition of an “office” as “the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public;” it is not necessary that there be a salary. (Pp. 310-312.)</p> <p>5. Constitutional Daw — Degislative Construction.</p> <p>Contemporary legislative and judicial determination of the constitutionality of an act, though of value in cases of ambiguity or doubt, can not control where the language of the Constitution is plain and applicable. (Pp. 312, 313.)</p> <p>6. Statute — Partial Unconstitutionality Affecting the Whole.</p> <p>All parts of the Act of March 30, 1899, are so dependent upon and connected with the provisions giving to school trustees a four years term and providing for alternate elections, that to declare these void renders the entire act ineffectual, and void as a whole. (P. 313.)</p>

<p>1. Eminent Domain — Telegraph and Telephone Lines.</p> <p>The statutes conferring power to condemn land upon telegraph companies (Revised Statutes, articles 698, 699) apply to telephone companies and authorize a like procedure by them. (P. 318.)</p> <p>2. Same — Telegraph Includes Telephone.</p> <p>The phrases “magnetic telegraph lines” and “any telegraph lines," in Revised Statutes, articles 698, 699, are broad enough to include telephone lines, — the latter being but another method of accomplishing the one purpose, — transmission of messages by electricity. (Pp. 318-320.)</p> <p>3. Same — Statutory Construction.</p> <p>Though the telephone, being then newly invented and not in common use, was not contemplated by the Legislature when articles 698 and 699 authorizing condemnation by telegraph companies (incorporated under article 566) were enacted, the amendment of article 566, in 1891, which authorized incorporation for the construction and maintenance of a "telegraph and telephone line,” instead of “a telegraph or a telephone line,” as in the amendment of 1885, was a legislative recognition of their substantial identity. (P. 320.)</p> <p>4. Statutory Construction — Amendment—Change of Language.</p> <p>An amendment changing the language of the law in a material respect is held to show any intent to change the law. (P. 321.)</p> <p>5. Eminent Domain — Foreign Corporation.</p> <p>The power to enjoy all the privileges conferred by the laws of the State on domestic corporations, given, by article 745, Revised Statutes, to foreign corporations obtaining permit to do business in this State, embraces the right possessed by a similar domestic corporation to exercise eminent domain. (P. 322.)</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Archer County.</p> <p>Suit was brought by the bank, which had judgment for the foreclosure of its lien, and upon its affirmance on defendants’ appeal they obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>The suit was brought by Josephine Hagan, who recovered in the trial court. Defendant appealed and on affirmance of the judgment obtained writ of error.</p>

<p>Original application for writ of mandamus against the' Secretary of State.</p>

<p>1. Passenger Carrier — Limited. Ticket — Continuous Passage — Authority of Conductor.</p> <p>A round trip ticket contained a contract signed by the passenger providing that it should be good, in returning, only for a continuous trip from the date stamped by the agent at the destination, and that no agent or employe had power to modify the contract. Held, that the passenger lost all right to further transportation thereon by stopping ofi at an intermediate station while returning, though upon a stop-over permit given by the conductor with assurance that it was all right. (Pp. 347, 348.)</p> <p>2. Same — Connecting Lines — Joint Ticket — Stop-Over.</p> <p>.If authority of a conductor to bind his- company by giving stop-over privileges upon a ticket expressly denying such right could be assumed to exist, such act could not bind his principal to an undertaking that the passenger should be carried over another road (which had joined in issuing the ticket), contrary to its express contract. (P. 348.)</p>

Motion -in the District Court, against an attorney, for money collected. He pleaded offsets, and on judgment against him appealed. On affirmance he obtained writ of error.

Ebhoe to the Court- of Civil Appeals for the Fourth District, in an appeal from Washington County. The suit was trespass to try title, brought by Wangermann, who claimed the land under a foreclosure sale, against Affleck and wife, who asserted homestead rights in avoidance of the mortgage and sale. On plaintiff’s death his executrix was made a party, and she recovered a judgment from which defendants appealed. The judgment was affirmed and appellee obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Nacogdoches County.</p>

The suit was brought by H. S. McCartney against S. J. McCartney, his wife, to cancel a deed. Judgment was given for defendant, and this was affirmed on appeal by plaintiff who then obtained writ of error.

<p>Ebbob to the Court of Civil Appeals for the Fifth District, in an appeal from Hopkins County.</p> <p>The proceeding was by Mrs. Roots, to subject to the payment of a fourth-class claim established by her against the estate of J. A. B. Putman, the homestead of deceased, which he had bequeathed, to his mother for life, with remainder to his sister, Mrs. Dinsmore, and his professional library, which he had bequeathed to Dinsmore. Mrs. Roots was denied the relief sought in the probate court, and again, on appeal, in the District Court, and on her further. appeal this was affirmed in the Court of Civil Appeals, whereupon she obtained writ of error.</p>

<p>1. Sequestration — Property of Stranger to Writ — Liability of Sheriff.</p> <p>A sheriff who, under a writ of sequestration seizes property specified therein, from an owner in possession and who is a stranger to the writ, is not protected by the process from suit by such owner for damages from the seizure. (Pp. 374-377.)</p> <p>2. Same.</p> <p>The writ of sequestration is intended only to enforce a right to seizure of the property which plaintiff has acquired against defendant by complying with the statute; the duty of the sheriff to make the seizure corresponds to the right of the plaintiff to have him do so; and this is only by suit with affidavit, petition against, and bond to the person whose property is to be seized. (Pp. 374, 375.)</p>

<p>1. Removal of Causes — Petition.</p> <p>A railway corporation created by act of Congress has the right, by virtue of that fact, to remove into the United States court a suit against it, as arising under such law, though plaintiff’s petition allege defendant’s incorporation otherwise. (P. 386.)</p> <p>2. Same — Petition—Bond—Filing.</p> <p>Where petition and bond for removal were presented as one instrument, and marked filed, no separate file mark on the bond was necessary. (P. 386.)</p> <p>3. Removal — Waiver After Right Exercised.</p> <p>Though seasonable filing of a sufficient petition and bond tolls the jurisdiction of the State court and transfers it eo instanti to the United States court, the right, being a mere jurisdictional privilege, may be waived after its exercise, and the jurisdiction of I he State court restored. (Pp. 386, 387.)</p> <p>4. Same — Defense in State Court Not a Waiver.</p> <p>While restoration of the jurisdiction of the State court may be accomplished by an express waiver, and perhaps also by conduct inconsistent with an insistence on the right of removal, especially if prejudicial to the plaintiff, defendant does not lose his right by defending the action with all the means in his power in case the State court proceeds with the cause. (Pp. 386-388.)</p> <p>5. Same.</p> <p>As a general rule, when the jurisdiction is once lost, it takes the order of the United States court to restore it. (P. 388.)</p> <p>6. Same — Appeal—Res Judicata.</p> <p>It is questioned whether the failure on a former appeal to assign as error thd refusal to grant removal could avail to restore the jurisdiction of the State court, also whether the proceedings on the former appeal can be considered where not shown in the transcript. (P. 388.)</p> <p>7. Same.</p> <p>Plaintiff, who forced a trial over defendant’s objection that the court was without jurisdiction, was estopped from urging that the judgment was void for that reason when he appealed from a decision in defendant’s favor, but the latter could insist on the affirmance without waiving his right to object to the jurisdiction of the District Court in case of a reversal and remand. (Pp. 388, 389.)'</p> <p>8. Removal — Judgment in State Court — Remand by Federal Court.</p> <p>A judgment recovered by plaintiff in the State court after the filing of removal proceedings which transferred jurisdiction to the United States court, was not rendered valid by plaintiff subsequently filing the transcript in the United States court and having an order entered there remanding the cause to the State court; though ■such remanding order restored the jurisdiction of the State court from its date. (P. 389.)</p> <p>9. Foreign Corporation — Interstate Commerce.</p> <p>A foreign corporation transporting cattle from its ranch in New Mexico to one in Texas, by driving them to a railroad station in Texas and there shipping to the Texas ranch, was engaged, in such shipment, in interstate commerce, and could recover for damages in their transportation though having no permit to do business in Texas. (P. 389.)</p> <p>10. Eight of Action — Agent—Assignee.</p> <p>See facts under which an agent contracting for shipment of cattle of another by rail, and receiving after suit brought a transfer of the interest of the owner in the damages occasioned, was permitted to recover in his own name from the carrier for injuries in transit. (Pp. 380, 381, 389.)</p>

<p>1. Continuance.</p> <p>The refusal of a first continuance was not erroneous where the application was based upon the absence of witnesses whose names and residences were unknown, and one who had left the country and could not be located, and was addressed to the discretion of the trial court, — failing to state that it ivas not sought for delay only. (P. 395.)</p> <p>2. Insurance — Proof of Loss — False Statement.</p> <p>Where liability on an insurance policy is contested on the ground of a false statement by insured in making proofs of loss, the latter may show, in avoidance, that the statement was not willfully false. (P. 395.)</p> <p>3. Same — Evidence—Parol Statements Explanatory of Proof.</p> <p>The statement of insured, to one then engaged in making out his proofs of loss, that he did not own the land on which the insured building was situated, was admissible to show that there was no intentional misstatement as to his ownership, where it was sought to avoid liability because he had sworn that a building was his property, which was situated on the land of another, without right on his part to remove it. (P. 395.)</p> <p>4. Pleading — Verification—Failure of Consideration — Demurrer.</p> <p>A plea of failure of consideration, though not verified by affidavit, is sufficient to admit evidence when it has not been excepted to. (Pp. 395, 396.)</p> <p>5. Same — Non Est Factum.</p> <p>A plea that a chattel mortgage, duly signed and registered, had not been delivered nor taken effect, because the loan expected to be secured was not obtained (such plea not being verified nor excepted to for want of verification) showed the mortgage to be invalid for want of consideration, and evidence of the facts pleaded was properly admitted to establish such defense, even though the plea be considered equivalent to non est factum, and as such plea, though not excepted to, insufficient to admit evidence unless verified. (Pp. 395, 396.)</p> <p>6. Insurance — Mortgage.</p> <p>An insurance policy conditioned to be void if the property was “incumbered” by mortgage, was not avoided by the existence, at the time it was issued, of a chattel mortgage, signed and registered, but never delivered because the loan to be secured thereby was never obtained. (P. 396.)</p> <p>7. Same — Payment.</p> <p>An insurance policy conditioned to be void if the property be or become incumbered by a chattel mortgage was rendered invalid by the existence of such mortgage at the time of its issuance, though the insured discharged such mortgage on the day following. (P. 396.)</p>

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

Suit was brought by the mortgage company against Macdonell and others for debt and foreclosure of a deed of trust. The foreclosure was granted as to a part only of the land, and the company appealed and on affirmance obtained writ of error.

Sam Robinson sued Garrett and wife on a note given to D. T. Robinson, who was made a party by defendants. Defendants had judgment and the Robinsons appealed. The judgment was reversed and remanded,, and appellees thereupon obtained a writ of error on the ground that the ruling settled the case.

Castles sued Hansel and- others and obtained a judgment for debt and foreclosure of lien, and at a subsequent term, on motion filed after expiration of the former term, a judgment correcting the description of the land foreclosed on. Defendants then appealed, and on affirmance obtained writ of error.

<p>Railway — Fire—Burning Grass — Venue.</p> <p>An action for damage from fire, seeking to recover only the value of grass burned, is not one for damages to the land, and may be brought against a defendant railway company in a county through which its line extends, though the land lies in another county. (P. 418.)</p>

Applications for writ of error to the Court of Civil Appeals for the First District, in an appeal from Harris County. The suits were each brought upon notes given for the purchase money of land, and were defended on the ground of defect in the title of the vendor. The trial court found that there was no defect and gave judgment for plaintiff.

<p>1. Statement of Facts — Disregard of Rules — Suppression.</p> <p>It is only in cases where the disregard of the rules for preserving a statement of facts is flagrant, that the appellate court may suppress it for that reason. (Rule 53). (P. 430.)</p> <p>2. Same — Review by Supreme Court.</p> <p>Where the statement of facts was struck out on appeal in a case in which the violation of rules was not such as to warrant so doing, this was error for which the judgment should be reversed by the Supreme Comet and the case remanded to the Court of Civil Appeals to enable them to pass on assignments of error disregarded by them for lack of a proper statement. (Pp. 428, 430.)</p>

<p>1. Mechanic’s Lien — Material Furnished Contractor — Notice.</p> <p>One who furnishes lumber to a contractor for the erection of a building can not enforce a lien therefor against the owner who has settled with the contractor in full before receiving written notice of the claim, as provided by Revised Statutes, article 3296, though such owner had actual verbal notice of the materialman’s claim before settling. (Pp. 435-437.)</p> <p>8. Same.</p> <p>The practical effect of Revised Statutes, articles 3296, 3308, is to garnish so much of the sum due from the owner of the building as may be necessary to pay for material furnished; but the owner and his property are exempted from liability unless written notice be given before he pays the contractor. (P. 437.)</p> <p>3. Same — Constitution—Statute.</p> <p>' Whether or not, independently of the statute, the Constitution gives a lien to persons who do not contract with the owner of the property, the requirement that the Legislature provide for the enforcement of the lien (Constitution, article 16, section 37) gives it power to enact the law requiring notice in writing by a sub-contractor to the owner before he settles with the contractor. Rev. Stats., art. 3296. (P. 437.)</p>

<p>1. County Judge — Commissioners Court — Compensation.</p> <p>Articles 2450 and 2466, Revised Statutes, are not necessarily inconsistent, and an allowance "by the commissioners court of an annual salary of $1500 to the county judge, under the former article, for presiding over that court and other official business, will not prevent him from drawing also the compensation of $3 per day . allowed by .the latter article for sitting as a member of such court. (Pp. 443-445.)</p> <p>2. Same — Statutory Construction — History of Enactment.</p> <p>Where the meaning of a statute is doubtful it is proper to recur to the history of the enactment in order to throw light on its construction and ascertain the intent of the Legislature. (P. 444.)</p> <p>3. Same — Statutes Construed.</p> <p>Reviewing the history of the enactments culminating in the present Revised Statutes, articles 2450 and 2466 (Revised Statutes, 1879, articles 2386, 2402; Act August 23, 1876, sections 6 and 14), held, that the purpose was to provide by article 2450 that the county judge should receive at least as much as a commissioner, while sitting as a member of tliat court; and by article 2466 that the court might allow him further compensation, as a part of his general salary, for incidental services. (Pp. 443-445.)</p>

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from Fayette County.</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>On motion for rehearing by defendants in error rehearing was granted to permit oral argument, in accordance with the written opinion published herewith; but after argument the court adhered to its original rulings without further written opinion.</p>

3. Limitation — Findings of Fact — Practice on Appeal. Where the facts found by the trial judge did not establish the defense of limitation, and were not attacked, defendant can not avail himself of error in the rulings of law upon such defense. (Pp. 467, 468.) 4. Res Judicata — Judgment Against Trustee — When Binding Beneficiaries. Error to the Court of Civil Appeals for the Third District, in an appeal from Falls County.

<p>1. Railways — Connecting Lines — Transfers.</p> <p>Article 4535 of Revised Statutes, requiring railways to receive and transport freight coming to and from connecting lines, does not require that one company perform the work of switching and transferring freight between two other lines at a given point, though its tracks and switches there furnish a connection affording means for such transfer. (P. 486.)</p> <p>2. Same — Refusal to Switch Cars — Penalty.</p> <p>A railway company whose tracks and switches formed the means 'of connection between the lines of two other companies, at a town reached by both was not liable to the penalty provided by Revised Statutes, article 4535, for refusing to make transfer, over its tracks and switches, between such other lines, of cars routed over them but not over its own line, — the statute being inapplicable to such service. (Pp. 484-486.)</p>

<p>Certieioate oe dissent from the Court of Civil' Appeals for the Second District, in an appeal from Tarrant County.</p>

<p>Application fox writ of errox to the Couxt of Civil Appeals fox the Fourth District, in an appeal from Liberty County.</p>

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

<p>1. Vendor and Vendee — Superior Title.</p> <p>The title that remains in a vendor of land who reserves in his deed a lien for the purchase money is superior in the sense that the vendee can not assert his title against the vendor unless he has paid the purchase money, but except as security for the purchase money debt title is in the vendee. (Pp. 514, 515.)</p> <p>2. Same — Trespass—Timber Cutting.</p> <p>As to others than the vendee the rights of a vendor reserving a lien are those only of a mortgagor out of possession, and this rule applies to his right to recover for timber cut on the premises. (Pp. 514, 515.)</p> <p>3. Same.</p> <p>The vendor reserving a lien could maintain action against trespassers appropriating the timber on the land, but would be required to credit the amount of his recovery on the debt. (P. 515.)</p> <p>4. Same — Reconveyance—Cancellation of Debt.</p> <p>The amount of the debt secured by the vendor’s lien constituting the measure of the vendor’s rights in the land, when the debt was satisfied by a reconveyance of the land by the vendee the vendor could no longer maintain any action against the trespassers for timber cut thereon. (P, 515.)</p> <p>5. Same — Case Stated.</p> <p>Vendors of land retained in the deed a lien for part of the purchase money, with a provision against timber cutting by the vendees, disregarding which the latter cut and made ties, which they sold to a contractor who sold them to a railway company; thereupon the vendors rescinded the sale, received a reconveyance, and canceled the purchase money notes. Held, that no suit could be maintained against the contractor of the railway company for damages on account of the conversion of the ties. (Pp. 513,-516.)</p> <p>6. Same.</p> <p>The vendors in such case could acquire from their reconveying vendees (who were the wrongdoers) no right to sue, and a reservation to the vendors, in the contract of cancellation and reconveyance, of a right to sue the purchasers of the ties, could only apply to the right they had before, if any, which was satisfied by their reacquisition of the land. (P. 516.)</p>

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

<p>1. Certified Question — Pleading—Account—Liquidated Demand.</p> <p>See statement of nature of plaintiff's pleadings for recovery upon account for goods sold, given in certified questions, held to leave uncertain the question whether the suit was for liquidated or unliquidated damages. (Pp. 525-527.)</p> <p>2. Offset — Unliquidated Demands.</p> <p>An action to recover the market value of goods sold is for an unliquidated demand and subject to be offset by a claim for damages for plaintiff’s failure to comply with a distinct contract for sale and delivery of other goods to defendant. (P. 527.)</p> <p>3. Same — Liquidated Demand.</p> <p>An action for goods sold at an agreed price is upon a liquidated demand and not subject to be offset by unliquidated damages for failure to fulfill a distinct contract. (P. 527.)</p> <p>4. Same — Alternative Pleading.</p> <p>Where plaintiff’s action for goods sold is so shaped as to seek recovery for market value or agreed price as the facts may appear, defendant could shape his pleadings so as to have his unliquidated offset allowed in the event the proof did not show the price of the goods to be fixed by agreement. (P. 527.)</p>

<p>Damages — Doss of Annual Pecuniary Benefit — Sum of Payments — Present Value.</p> <p>In an action by parents for the death of a son, it was improper to charge that the measure of damages would be the amount the deceased would have contributed to them had he not been killed, and to refuse a requested instruction that it should be the reasonable value of such contributions, — it being a question for the jury whether the present value of such periodical future contributions was their sum or a less amount. (Pp. 529, 530.)</p>

<p>Question certified by the Court of Civil Appeals for the Fourth District, in an appeal from Presidio County.</p>

<p>1. Depositions — Use of Memoranda.</p> <p>When counsel procuring the taking of depositions furnished the notary with memoranda of t'he matters to which the witnesses would testify, prepared from information obtained from them in previous conversations, and used by the notary, where matters therein contained were omitted in their answers, to suggest such omission or refresh the witnesses’ memory, the depositions should have been suppressed on motion. (Pp. 534-540.)</p> <p>8. Same.</p> <p>It did not devolve upon the party complaining of such practice to show that any injury resulted from the irregularity of the proceeding. But see opinion for circumstances under which it is held such injury might be inferred. (Pp. 536, 539.)</p> <p>3. Same.</p> <p>It is immaterial that the notary so acted with innocent purpose; since, by his use of such memoranda he undertook to do for the plaintiffs that which made him their representative in a sense in which he did not represent the defendants. (P. 537.)</p> <p>4. Same — Duty of Notary.</p> <p>The law makes the notary, in taking depositions, the mere instrument to record and transmit that which the witnesses may state in answer to questions which are furnished by the parties, and he has no authority to propound other questions, furnished by the parties or of his own suggestion, in order to elicit a fuller statement from the witnesses. (P. 537.)</p> <p>5. Same — Memoranda—Eight to Cross-Examine.</p> <p>The use by the notary of a memorandum furnished by a party to aid the memory of a witness testifying by deposition was violative of the right of the opposite party to cross-examine the witness upon the paper used as well as on the matter called out by its use. (P. 538.)</p> <p>6. Evidence — Witness—Character to Impeach or Sustain.</p> <p>When evidence of the character of a witness at a date remote from the trial is offered to impeach or sustain him, its admissibility is largely in the discretion of the trial judge. (Pp. 539, 540.)</p>

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Rusk County.</p>

<p>1. Community Property — Judgment Creditor — Lien—Divorce.</p> <p>A creditor recording his abstract of a judgment for a community debt obtained thereby a lien upon the community property which prevailed over liens afterward established in favor of the wife by a decree of divorce in a suit therefor then pending. (P. 547.)</p> <p>2. Same.</p> <p>The lien for a judgment for a community debt attaches to the interest of both husband and wife, in the community property; and the wife’s rights are like those ■of a partner in partnership property as against partnership debts. The rights of the creditor are not affected by the state of accounts between husband and wife. (P. 548.)</p>

<p>Questions certified from the Court of Civil Appeals for the Fourth District, in an appeal from Bexar Conuty.</p>

The suit was brought by the State. League appealed from a judgment for plaintiff, and on its affirmance obtained writ of error.

Original application for writ of mandamus against respondent as County Judge. Respondent C. W. Cotton having considered himself disqualified to act in matters connected with administration upon the estate of a decedent, by reason of certain proceedings in which he had formerely acted as counsel, the application sought to require him to act therein, denying that he was in fact so disqualified.

Action by John G. Winter to enjoin execution of a dormant judgment against himself and wife. Defendant, the loan company, made the wife-a party to a cross-action to revive, and had such judgment. This, on appeal, was affirmed as to Winter and reversed as to the wife, and the loan company obtained writ of error.

Ricketts and others sued Ferguson and others in trespass to try title, and obtained judgment which was affirmed on appeal. Appellants then procured writ of error.

<p>1. Cemetery — Public Use — Dedication.</p> <p>A cemetery corporation organized under Revised Statutes, article 642, section 5, subdividing its land into burial lots, and having plat of same recorded, thereby dedicates such property to public use as a place of burial for the dead. (P. 574.)</p> <p>2. Cemetery Company — Status of Property.</p> <p>After the dedication of its land by a cemetery company to public use as a burial place the legal title remains in the corporation only for the purpose of conveying the lots to those who desire to use them for the purpose of burying the dead; no power is given the corporation by the statute to convey the property for any other purpose; and the fact that the subdivisions are made unchangeable and the power to convey restricted to “lot or lots * * * for the purposes of sepulture” (Revised Statutes, article 716) limits the corporation’s powers to convey to the quantities and uses named. The company by such dedication surrenders its fee simple title and becomes a trustee to carry out the purposes enumerated in the statute. (P. 574.)</p> <p>3. Same — Debts—Execution.</p> <p>A cemetery company, under our statute, has no power to create debts on the faith of the lands dedicated to burial purposes, and the sheriff no power to sell such lands under execution against it, though the purchasers should form or convey to another corporation to carry out the trust. (P. 575.)</p> <p>4. Same — Case Stated.</p> <p>A cemetery company created under Revised Statutes, article 642, subdivision 5, divided its lands, recorded plat, and sold lots for burial purposes, aS authorized by Revised Statutes, articles 715-717. Held, that the unsold lots were not subject to sale under execution against the company; nor could the purchasers at such sale transfer title to a new company organized under the statute to carry out the same trusts. (Pp. 571-575.)</p>

The suit was brought hy the Security Company against the bank. Plaintiff had judgment, which, on defendant’s appeal was reversed and rendered for appellant. Appellee then obtained writ of error.

<p>1. Administration — Affidavit to Claim — Signature.</p> <p>The affidavit required to establish a claim against an estate (Revised Statutes, articles 2072, 2074) must comply with the requirements of Revised Statutes, article 6, as to affidavits, “* * * be in writing and signed by the party making same.” (Pp. 584, 585.)</p> <p>2. Affidavit — Construction of Statute.</p> <p>The words in Revised Statutes, article 6, “all affidavits provided for in this title,” must be taken to mean all those concerning or relating to which the provisions of the title are made; since no affidavits are provided for in the title in the sense of being required or prescribed thereby. (Pp. 584, 585.)</p>

<p>1. Homestead — Descent and Distribution — Statute Construed.</p> <p>Article 2053, Revised Statutes, does not conflict with article 16, section 52, of the Constitution of the State. The latter has no reference to the rights of creditors, but only to the rules of descent; it abrogates the former rule which gave the homestead of an insolvent estate absolutely to the widow and minor children, and secures to the adult heirs their rights therein after termination of the homestead use. (Pp. 589, 590.)</p> <p>2. Same — Setting Aside Homestead — Property Subject to Lien.</p> <p>A homestead upon which a lien has been given by the husband and wife, before its designation as such, and acknowledged in a manner legally binding upon the wife, can not, after the husband's death, be set aside to the widow and minor children free from such lien. Rev. Stats., art 2053. (Pp. 589, 590.)</p>

Questions oebtieied from the Court of Civil Appeals for the Third District, in an appeal from Travis County. This case, upon a previous appeal, is reported as Hall v. City of Austin, 20 Texas Civil Appeals, 59.

<p>1. Assignment for Creditors — State Insolvent Law — Effect of National Bankrupt Act.</p> <p>In so far as an insolvent law of a State provides for a release by the creditors it is suspended by a bankrupt law of the United States; but if the assignment convey all the debtor’s property subject to the payment of' his debts for the equal benefit of all his creditors who may accept under it, it is otherwise valid, except as against proceedings seasonably taken under the Bankrupt Act. (P. 604.)</p> <p>2. Same — Assignment Exacting Release — Nonaccepting Creditor — Garnishment.</p> <p>Though a general assignment under the State law was made for the benefit of such creditors only as released the assignor from further liability, it was not invalid ' as a transfer of the property, except upon proceedings against the assignor under the Bankrupt Act, and a nonaccepting creditor could not subject to his garnishment the proceeds of the property in the hands of the assignee. (Pp. 602-604.)</p>

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Galveston County.</p> <p>Lefevre and wife sued the Electric Company and obtained judgment which was affirmed on defendant’s appeal. Appellant then obtained writ of error.</p>

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

<p>Judgment — Payment to Clerk of Court.</p> <p>The clerk of a court has no authority under our statutes to receive money m satisfaction of a judgment recovered therein, and .such payment will not discharge the judgment. Rev. Stats., arts. 4892, 2385, 1095, 1462-1464, 15, 1089, 1090, 3194, 3291. (Pp. 612-614.)</p>

<p>1. Attorney-General — Certification of Bonds — School District.</p> <p>Articles 918a-918g of the Revised Statutes, providing for certification by the Attorney-General of bonds issued by counties, cities, and towns, have no application to bonds issued by the Victoria Independent School District, incorporated and authorized to issue bonds by special law, and as to these such officer has no duty to perforin. (P. 614.)</p> <p>8. Mandamus — Practice.</p> <p>The Supreme Court will not, upon an application for mandamus to require approval by the Attorney-General of bonds as to which no duty is imposed upon him, pass on the constitutionality of the law under which such bonds were issued. (Pp. 614, 615.)</p>

Kate Quill and others sued the railway company and had judgment. A former recovery by plaintiff had been reversed and remanded on appeal. 46 S. W. Rep., 847. Defendant appealed from the second recovery and the judgment was again reversed and remanded. Plaintiff applied for and obtained a writ of error on the ground that the ruling practically settled the case.

<p>1. Statement of Facts — Failure to Sign — Assignment of Error.</p> <p>Error in failure of the trial judge to sign a ’statement of facts for an appellant who has used due diligence to secure it, can not be considered on appeal unless assigned as error. (P. 624.)</p> <p>2. Same — Motion in Appellate Court.</p> <p>A motion filed in the appellate court, showing the absence of a statement of facts in the record to have been the fault of the trial judge, and asking a reversal on that ground can not take the place of an assignment of error. (Pp. 624, 625.)</p> <p>3. Procedure on Appeal — Facts Outside Record.</p> <p>'Except for ascertaining matters of fact necessary to the proper exercise of their jurisdiction- (Revised Statutes, article 998), courts of civil appeals are confined to the record as made by the trial court, and they can not correct the same by hearing testimony, nor inquire into acts occurring subsequently to the rendition of the judgment and not made a part of the record. (P. 625.)</p>

Error, to the Court of Civil Appeals for the Fourth District, in an appeal from Harrison County. R. R. Scott, William Batt, and the Marshall Rational Bank brought separate suits against the railway company for destruction of property severally owned by them. The suits were consolidated and tried together, the issues being the same, and defendant had judgment. Plaintiffs appealed, and on affirmance of the judgment obtained writ of error.

<p>1. School Land — Statute Construed — County Organization.</p> <p>Revised Statutes, article 4218y, authorizing the sale of detached sections of school land without actual settlement, in counties organized prior to January 1, 1875, applies to Coleman County, first organized in 1864, but which became disorganized in 1872, and remained without county officers or government until reorganized in February, 1875. (Pp. 630-632.)</p> <p>2. Same.</p> <p>Such county coming within the letter of the statute, in order to give a different construction to the words used, some reason must be shown for disregarding their ordinary meaning, which in this case is found to accord also with the spirit of the law. (P. 631.)</p> <p>3. County — Disorganization—Corporate Existence.</p> <p>The fact that a county became disorganized and was without officers, did not destroy its corporate existence, but suspended its powers, which were revived by reorganization. (P. 632.)</p>

<p>Question certified from the Court of Civil Appeals for the Third ¡District, in an appeal from Coleman County.</p>