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I 



/ARO LAW LIBRARY 



l^ 



NOTES 

ON 

TEXAS REPORTS 

BOOK TWO 

mACTKO THE VOLUMES OF THE FOLLOWING REFOBTS: 

27 TEXAS TO 68 TEXA8» INOI.USIVIL 



THE CITATIONS IN THIS VOLUME 



include all from the following Reports and all preceding 
them in each of the State or Federal Reports or Series : 



Tex 100 

Tex. Civ 44 

Tex. Ct 53 

Tex. Ap. Civ 4 

Posey U. C 2 

U. S 206 

Fed 166 

Ala 153 

Alaska 2 

Ariz 9 

Ark 86 

Cal 153 

Cal. Ap 7 

Colo 43 

Colo. Ap 20 

Conn 81 

Dak 6 

Del. (Pennewill) 5 

Fla 55 

Ga 130 

6a. Ap 4 

Hawaii i 18 

Idaho 15 

HI 237 

Tnd 169 

Ind. Ap 40 

Ind. Ter 7 

Iowa 137 

Kan 77 

Kan. Ap 10 

Ky 125 

La 122 

Me 103 

Md 107 

Mass 200 

Mich 163 



Minn 105 

Mies. 91 

Mo 191 

Mo. Ap 132 

Mont ,....-... 37 

Neb 79 

Nev 29 

N. H 75 

N. J. Eq 72 

N. M 13 

N. Y 193 

N. C 147 

N. D 16 

Ohio 78 

Okl : 19 

Or. , 50 

Pa 221 

B. 1 28 

S. C 81 

8. D 20 

Tenn 119 

Utah 33 

Vt 80 

Va 108 

Wash 50 

W. Va 63 

Wis 135 

Wyo 16 

Am. Dec 100 

Am. Bep 60 

Am. St. Rep 131 

L. B. A 70 

xj. U. JO., (n. 8.^ ■•>■«••••.•.• 2S«S 



with parallel references to cases found in such reports in the 
Am. Dec, Am. Rep., Am. St. Rep., National Reporter System 
and Lawyers' Reports Annotated. 



NOTES 



ON 

TEXAS REPOETS. 

A CHRONOLOGICAL SERIES OF ANNOTATIONS 

OF THE DECISIONS OF THE SUPREME COURT AND THE 
VARIOUS CIVIL AND CRIMINAL APPELLATE 

COURTS OF TEXAS, SHOWING THEIR 

PRESENT VALUE AS AUTHORITY 

AS DISCLOSED BY ALL SUBSEQUENT 

CITATIONS 

OF THOSE CASES IN ALL TEXAS CASES BOTH REPORTED 

AND UNREPORTED, WHEREIN THEY HAVE BEEN 

CITED AS A PRECEDENT IN THE DECISIONS 

OF SISTER STATES AND IN ALL 

THE FEDERAL REPORTS, 

WITH 

PAJLALLEIi REFERENCES TO AMERICAN DECISIONS, AMERI- 

CAN REPORTS, AMERICAN STATE REPORTS, 

LAWYERS' REPORTS ANNOTATED, 

AND THE REPORTER 

SYSTEM. 

BY 

WALTER MALINS ROSE, 

Author of Notes on United States Reports. 
BirVISED AND BROUGHT DOWN TO DATE 

BY 

CHARLES L. THOMPSON, 

Of the San Fnneiaeo Bar. 



BOOK TWO. 



SAN FRANCISCO: 

BANCEOPT-WHITNEY COMPANY, 

Law Pnblishen and Law BookselleTB, 

1910. 



Copyright, 1902. 

BT 

BANCEOFT-WHITNEY COMPANY. 



Copyright, 1910. 

« 

BY 

BANCEOFT-WHITNEY COMPANY. 



OCT 7 1927 



San Francisco: 

The Filmer Brothers Electrotype Company, 

Typographers and Stereotypers. 



NOTES 

ONTHB 



TEXAS EEPORTS 



GASES IN 27 TEXAS. 



27 TttZ. 1-2, JONES ▼. HAYS. 

BiBslVTj Bond Payable to Sheriff instead of plaintifF in execution is 
Tmlid as common-law obligation where the property was obtained 
thereunder. 

Approved in Hummel v. Del Oreco, 40 Tex. Civ. 515, 90 S. W. 341, 
applying rule to bond given by heir to secure payment of legacy; Pait 
V. MeCatchen, 43 Tex. 298, replevy bond reciting one not party to 
rait as principal, but signed first by plaintiff in replevin, is good 
against plaintiff; Bose v. Winn, 51 Tex. 550, holding administrator's 
bond good where it omitted to state terms which made it enforceable 
or void; Colorado City Nat. Bk. v. Lester, 73 Tex. 546, 11 S. W. 
€27, reaffirming rule where bond Was more onerous than required, 
but defective as statutory bond; Jacobs v. Daugherty, 78 Tex. 684, 
15 8. W. 161, where bond was for delivery of property levied on in 
ease defendant was condemned, it was defective as to sureties on 
statutory grounds; Jacobs v. Daugherty, 78 Tex. 685, 15 S. W. 161, 
where bond was wrongfully demanded under color of office; Walker 
V. Bennett, 1 Tex. Ap. Civ. 352, where bond was executea for less 
than the statutory amount. See note, 55 Am. Dec. 790. 

Distinguished on rehearing in Pait v. McCutchen, 43 Tex. 302, where 
suit was on equitable grounds for an injunction restraining void judg- 
ment. 

27 TO. S-^, 84 Am. Dec 604, STAOY ▼. BOSS. 

Fraud Avoids All Contracts. 

Approved in McCall v. Sullivan, 1 Tex. Ap. Civ. 12, and History 
Co. V. Flint, 4 Tex. Ap. Civ. 368, 15 8. W. 914, both reaffirming rule. 

PromiBiory Note is Void for want of assent, where signature was 
procured by wrongfully reading its terms to an illiterate man. 

Approved in Link v. Page, 72 Tex. 596, 10 8. W. 701, where grantee 
fraudulently substituted a different deed for grantor to sign; Ault- 
man v. Olson, 34 Minn. 452, 26 N. W. 452, applying rule to negotiable 
instrument where fraud was by payee's agent; Wright v. McPike, 70 
Mo. 180, applying rule to original parties where instrument signed 

2 Tex. Notes— 1 (1) 



27 Tex. 6-20 NOTES ON TEXAS REPOETa ^ 

was not contract contemplated, whether hy fraud or mistake. See 
note, 11 Am. St. Bep. 311. 

Wliere Plea in Effect denies execution of the note as set out in the 
petition of suit thereon, it is sufficient to support plea of non est 
factum, if verified. 

Beaffirmed in Hurt v. Wallace (Tex. Civ.), 49 S. W. 676. See note^ 
10 L. B. A. 606. 

27 Tex. 6-7, PAEI8 ▼. DU BOSE. 

Becord of Trial Court cannot be impeached in appellate court by^ 
affidavit. 

Approved in Hamilton v. Saunders, 37 Tex. Civ. 142, 84 S. W. 253^ 
and Boggess v. Harris, 90 Tex. 477, 39 S. W. 565, both reaffirming 
rule; Live Oak Co. v. Heaton, 39 Tex. 500, neither statement of facts 
nor bills of exception can be supplied hy affidavit in appellate court. 

Distinguished in Hart v. Mills, 31 Tex. 313, 314, where proofs 
aliunde were to jurisdiction of appc^llate court. 

27 Tex. 7-14, UBQUHABT ▼. tJBT. 

Where Vendor in Executory Sale covenants to make title to pur- 
chasers from vendee of such portions so sold, purchasers may hold 
original vendor liable thereon. 

Cited in notes, 71 Am. St. Bep. 186, 190, 203. 

Miscellaneous. — Boggess v. Harris, 90 Tex. 477, 39 S. W. 565, mis- 
cited. 

27 Tex. 14-18, BIPLET ▼. WITHEE. 

Fraud will Only Prevent Banning of Limitations until discovered 
or until reasonable diligence would discover its existence. 

Approved in Kuhlman v. Baker, 50 Tex. 637, Brown v. Brown, 61 
Tex. 49, and Texas etc. By. v. Gay, 86 Tex. 608, 26 S. W. 614, all re- 
affirming rule; Harris v. Cain, 41 Tex. Civ. 146, 91 S. W. 869, apply- 
ing rule to purchase of notes on representation that they were secured 
by vendor's lien. See note, 84 Am. Dec. 591. 

In Suit for Purchase Money of a forged land warrant, statute of 
, limitations does not commence until warrant was declared a forgery 
by commissioner of claims. 

Approved in Anding v. Perkins, 29 Tex. 354, reaffirming rule. 

Distinguished in Lunt v. Wrenn, 113 III. 178, where plaintiff had no- 
tice that scrip was counterfeit. 

27 Tex. 18-20, STEPHENS ▼. BOWEBMAN. 

Statement of Facts Containing Mere Beference to certain papers 
and orders, without identification that copies attached are same pre- 
sented in court, will be disregarded. 

Approved in Eastin v. Ferguson, 4 Tex. Civ. 646, 23 S. W. 919, map 
not attached to the record will not be considered as part thereof; 
Greenwade v. Walling, 30 Tex. 379, where bill of exceptions did not 
show excluded deposition or why excluded; Hill v. Templeton (Tex. 
Civ.), 29 S. W. 537, where sheriff's deed was not connected with the 
evidence offered. 

Where Bill of Exceptions does not indicate the point decided, same 
presented in court will be disregarded. 

Approved in Adams v. Diiggan, 1 Tex. Ap. Civ. 737, where no bill 
of exceptions was brought up. 



3 ITOTES ON TEXAS EEPOBTS. 27 Tex. 21-32 

27 Tez. 21-22, JOHNSON ▼. LONG. 

Mera Holding of Patent by Another is insufficient to resist pur-, 
chase price of land, conveyed under general warranty, where no dan- 
ger of eviction is shown. 

Approved in Tooke v. Bonds, 29 Tez. 425, answer alleging that 
vendor's wife claims land is insufficient to resist payment to vendor; 
Price V. Blount, 41 Tex. 475, where purchaser was liable to be evicted 
by superior outstanding title of which he had no notice at time of 
purchase; Haralson v. Langford, 66 Tex. 113, 18 S. W. 339, vendee 
must state circumstances repelling presumption that he took title with 
risk and he is about to be evicted; Moore v. Vogel, 22 Tex. Civ. 238, 
54 S. W. 1063, plea of defective title is insufficient where no fraud 
or ignorance is shown and no offer is made to reconvey; Zimpleman 
V. Hipwell, 54 Fed. 853, appl^dng rule to purchase of a foreign min- 
ing claim. See note, 70 Am. Dec. 340. 

27 Ttoz. 23-27, 84 Am. Dec. 606, HOLLUCAN ▼. CABBOLL. 

Snteties on Sheriff's Bond are liable for sheriff's trespass in taking 
property of person not party to writ, where the writ of execution was 
valid. 

Approved in McKee v. Price, 3 Tex. Ap. Civ. 404, and Lammon v. 
Feusier, 111 U. S. 21, 28 L. 338, 4 Sup. Ct. Bep. 288, both reaffirming 
rule; Moore v. Linsay (Tex. Civ.), 71 S. W. 299, constable's sureties 
liable for wrongful killing while making arrest under warrant; Find- 
ley V. Mitchell, 50 Tex. 147, where constable wrongfully refused 
plaintiff right to replevy certain goods. See notes, 46 Am. Dec. 515, 
and 53 Am. St. Bep. 894. 

Distinguished in State v. Dierker, 101 Mo. App. 645, 74 S. W. 155, 
sheriff's sureties not liable for arrest by him, without warrant, for 
misdemeanor not committed in his view. 

Sureties on Sheriff's Bond, it seems, would not be liable for wrong- 
ful taking of property without a writ. 

Approved in Brown v. King, 41 Tex. Civ. 593, 93 S. W. 1020, hold- 
ing sheriff's sureties, under circumstances, not liable for act of dep- 
uties in attempting arrest; Dysart v. Lurteg, 3 Okl. 608, 41 Pac. 726, 
United States marshal's sureties not liable for acts of deputy seizing 
goods without powers and without knowledge or assent of marshal; 
Felonicher v. Stingley, 142 Cal. 634, 76 Pac. 506, sureties of con- 
stable not liable for assault committed by him not under color of 
office; Hawkins v. Thomas, 3 Ind. App. 406, 29 N. E. 159, applied to 
marshal where no offense against United States laws had been com- 
mitted and action was not under a writ; Chandler v. I(utherford, 101 
Fed. 777, where deputy marshal without a warrant wrongfully iDJured 
plaintiff in attempting an unauthorized arrest. See notes, 88 Am. 
Dec. 587; 6 Am. St. Bep. 132. 

27 Tex. 2»-30, SMITH Y. ABAMS. 

The Mere Bringing of an Unjust or harassing suit against a per- 
son is not actionable. 

Approved in Johnson v. King, 64 Tex. 229, and Bunge v. Franklin, 
72 Tex. 591, 13 Am. St. Bep. 838, 10 S. W. 724, 3 L. B. A. 417, both 
reaffirming rule. See note, 93 Am. St. Bep. 454. 

27 Tez. 31-32, OOBNEIJUS ▼. THOMPSON. 

Where Bemlttitar is not Entered before writ of error is sued out, 
judgment will be reformed at cost of defendant in error. 



27 Tex. 32-49 NOTES ON TEXAS REPOBTa 4 

Distinguished in Pearce ▼. Tootle, 75 Tex. 150, 12 S. W. 537, where 
remittitur was filed after writ of error had been issued; Frj t. 
Longstreeti 1 Tex. Ap. Civ. 24, where remittitur was entered in 
appellate court. 

27 Tez. 32-^7, OOVEBNOB OF TEXAS ▼. BUBNETT. 

The Statute of Limitations will run against a suit b^ the state 
upon a tax collector's bond. 

Approved in H. ft T. C. Bj. ▼. Travis Co., 62 Tex. 19, limitations 
run against a county for damages caused by dangerous construction 
of railway crossing over public highway; Brown v. Sneed, 77 Tex. 
474, 14 S. W. 251, does not run against an action by state on official 
bond of chief clerk of controller's office; United States t. Norton, 
107 Fed. 415, in suit against postmaster, sureties on amended petition 
alleging new cause of action. 

Bule changed by statute. State ▼. Oibson, 27 Tex. Civ. 359, 65 
S. W. 692, holding lapse of time is no bar to suit to collect a tax 
due the state. 

27 Tex. 38-40, HOLMAN ▼. HOPKIN& 

Foreign Will Ezecnted according to laws of actual domicile will 
dispose of personal property in Texas. 

Approved in Hurst v. Mellinger, 73 Tex. 190, 11 S. W. 185, foreign 
will disposing of personalty is admissible although not probated in 
Texas. See note, 48 L. B. A. 131, 152. 

Foreign Will not Ezecnted according to the laws of Texas will not 
dispose of real property situate in Texas. 

Approved in Mills v. Hemdon, 60 Tex. 355, holding deed by for- 
eign executor does not pass title unless he has complied with Texas 
statute in filing and recording will; Slay ton v. Singleton, 72 Tex. 
212, 9 S. W. 876, probate of a will in a foreign state will not affect 
a bona fide purchaser of land affected by it which is located in 
Texas. See notes, 48 L. B. A. 133; 2 L. B. A. (n. s.) 425. 

27 Tex. 40-49, YANCET ▼. NOBEI& 

An Abortive Effort to Obtain a Gfrrant from an incompetent officer 
will not raise presumption of consent of. federal executive to grant. 

Approved in Forrest v. Woodall, 33 Tex. 365, reaffirming rule; 
Walker v. Hanks, 27 Tex. 536, not presumed from adverse posses- 
sion under registered deed; Biencourt v. Parker, 27 Tex. 563, in- 
stance where evidence was insufficient to warrant presumption of 
governmental grant; Plummer v. Power, 29 Tex. 16, ten' years* 
peaceable and exclusive adverse possession does not presume a 
grant; Paschal v. Dangerfield, 37 Tex. 303, 304, possession under 
inchoate grant in 1808 followed by lapse of possession is not pre- 
sumption of complete grant; Truehart v. Babcock, 49 Tex. 260, where 
vendee in registered deed occupied land under belief that it was 
titled and paid taxes thereon; Miller v. Brownson, 50 Tex. 694, where 
land certificate relied on was not "returned as genuine and legal 
by commissioners." 

Distinguished in Texas Mexican By. ▼. Uribe, 85 Tex. 390, 20 
S. W. 154, proof of revolutionary changes, accompanied by circum- 
stantial evidence of grant by proper officer, a century prior and sub- 
sequent governmental recognition is sufficient to presume grant; 
Sulphen v. Norris, 44 Tex. 241, where presumptive grant was alleged 
to have been prior to 1824* 



5 NOTES ON TEXAS BEPOBTS. 27 Tex. 50-59 

Miseellaneoiis.— Cited in Arthur t. Bidge, 40 Tex. Civ. 145, 89 S. W. 
19, aa to need for pleading title apeeially in treipass to try title; 
State ▼. Bruni, 37 Tex. Civ. 14, 83 S. W. 215, grant from Spanish 
government in 1767 presumed from recitals in ancient deeds. 

27 Tex. 50-52, WHITB ▼. BUBNEY. 

EYldenca by % Witnew of hie inquiry of trustee 'and beneficiary 
for the lost deed ia suffieient foundation for secondary evidence 
thereto. 

Approved in Parks v. Caudle, 58 Tex. 220, evidence of witness 
on the stand is sufficient to prove loss of instrument; Daniels v. 
Creekmore, 7 Tex. Civ. 576, 27 S. W. 149, burning of office where 
deed waa deposited, together with evidence of diligent search among 
papers saved therefrom and among claimant's papers, is sufficient; 
Jackson v. Dreslonde, 1 Posey U. C. 681, affidavit of attorney as to 
detail facts of his inquiry and search for lost instrument, supple- 
mented by affidavit of plaintiff as to loss thereof, is sufficient. 

27 Tex. 52-59, BAITRB ▼. BAMEY. 

Vendor of Laod, Who BetaiTig Lien for purchase money, has supe- 
rior right to the land as against his vendees. 

Approved in Peters v. Clements, 46 Tex. 123, Masterson v. Cohen, 
46 Tex. 524, Boosevelt v. Davis, 49 Tex. 472, and Abernethy v. Bass, 
9 Tex. Civ. 243, 29 S. W. 399, all reaffirming rule; Cannon v. Mc- 
Daniel, 46 Tex. 313, assignee of note secured by lien may enforce 
his lien; Harris v. Catlin, 53 Tex. 9, lachen of legal representatives 
of vendor does not estop an enforcement of vendor's lien; Bussell 
V. Kirkbride, 62 Tex. 456, transfer of vendee's notes to third per- 
son by vendor does not affect vendor's lien; Summerhill v. Banner, 
72 Tex. 227, 9 S. W. 882, reaffirmed, but criticised; Crafts v. Daugh- 
erty, 69 Tex. 480, 6 8. W. 852, where simultaneously with the deed 
vendee executed a purchase money mortgage;* Graham v. West 
(Tex. Civ.), 26 S. W. 921, purchaser from vendee, knowing that the 
sale was on credit is not an innocent purchaser; King v. Toung 
Men's Assn., 1 Woods, 391, Fed Cas. 7811, applied in bill to redeem 
where vendor's lien had been reserved. See notes, 62 Am. Dec. 
512; 99 Am. Dec. 574. 

Distinguished in Bogers v. Green, 35 Tex. 735, where vendor who 
had ft vendor's lien elected to sue in personam; Baker v. Compton, 
52 Tex. 261, where deed absolute on its face recited existence of 
unpaid purchase money notes, but retained no express lien there- 
for; Webster v. Mann, 52 Tex. 425, where deed containing general 
warranty recited as a consideration, among other things, that 
grantee had taken care of grantor from certain period to date of 
deed; McKelvain v. Allen, 58 Tex. 387, where absolute deed, which 
merely recited purchase money notes, was construed with contem- 
poraneous notes, which declared an express vendor's lien. 

Vendor's laien Bemains, although notes given for the purchase money 
become barred by statute. 

Approved in Cannon v. McDaniel, 46 Tex. 314, Hale v. Baker, 
60 Tex. 219, McPheraon v. Johnson, 69 Tex. 487, 6 S. W. 799, White 
V. Cole, 9 Tex. Civ. 280, 29 S. W. 1149, and Johnson v. Lockhart, 
16 Tex. Civ. 34, 40 S. W. 641, all reaffirming rule. 

Distinguiahed in Pitschki v. Anderson, 49 Tex. 3, where convey- 
ance waa by absolute deed reciting payment of purchase money. 



NOTES 

ON 

TEXAS REPORTS 

BOOK TWO 

BSACINO THS VOLUICES Of THX rOLLOWIKO SEPOKTS: 

27 TEXAS TO 68 TEZAS^ mOLUSIVE. 



27 Tex. 86-88 NOTES ON TEXAS BEP0BT8. 8 

viving judgment; Thompson v. Jones (Tex. Sup.), 12 S. W. 79, exe- 
eution Bale under judgment for mortgage foreclosure, made after 
death of mortgagor, cannot be collaterally attacked. See notes, 73 
Am. Bee. 218; 61 L. R. A. 367, 381, 393. 

Distinguished in Meador Co. ▼. Aringdale, 58 Tex. 450, where 
claimant was not party to the execution which was issued on dor- 
mant judgment; Fleming v. Ball, 25 Tex. Civ. 211, 60 S. W. 985, 
holding sale under judgment eight years after death of sole de- 
fendant therein, on whose estate no administration has been had, 
is void. 

Judgment of Foreclosore against husband alone is conclusive 
against the wife, where both were sued on the* note accompanying 
the mortgage. 

Approved in Urquhart v. Womack, 53 Tex. 618, holding that mar- 
ried women are presumed to conduct their litigation in manner 
"most conducive to their own advantage"; Nichols v. Dibrell, 61 
Tex. 541, where claim for homestead was held res adjudicata be- 
cause not set up in former case; Thompson v. Lester, 75 Tex. 523, 
14 S. W. 21, where the facts constituting the fraud were litigated 
to a judgment, they are afterward res adjudicata; Henry v. Thomas 
(Tex. Civ.), 74 S. W. 601, plaintiff precluded because her grantor 
was party to suit against third person in which purchase money 
lien was foreclosed; Murphy v. Wallace, 3 Tex. Ap. Civ. 512, where 
claim for commissions for collection of partnership debts was not 
set up in former suit for the amount collected; Morris v. Turner, 
5 Tex. Civ. 712, 24 S. W. 960, where husband and wife foreclosed 
vendor's lien, wife is estopped from setting up claim to the land 
because of defective conveyance. See notes, 62 Am. Dec. 550, and 
76 Am. Dec. 94. 

Claimant cannot Question Process under which levy is made for 
mere irregularities in the execution. 
Approved in Laughter v. Seela, 59 Tex. 179, reaffirming rule. 

Claimant of Property may show that the process levied is void. 

Approved in Boos v. Lewyn, 5 Tex. Civ. 597, 24 S. W. 539, holding 
that an attack of writ of execution should be by plea in abatement 
prior to answer on the merits; Tillman v. McDonough, 2 Tex. Ap. 
Civ. 46, where process is void, such fact may be set up at any stage 
of trial of right of property. 

Mi8cellaneous.~Schmidtke ▼. Miller, 71 Tex. 107, 8 S. W. 638, 
miscited. 

27 Tex. 86^88, STEEN ▼. STATE. 

Beyersal will not Lie for Errors not assigned unless they go to 
the foundation of the action. 

Approved in Pendarvis v. Gray, 41 Tex. 331, and Brown v. Meador, 
1 Posey U. C. 285, both reaffirming rule. 

In Bond for Appearance of Principal in criminal case, a mistake 
in his middle name is immaterial. 

Approved in Dodd v. State, 2 Tex. Ap. 59, reaffirming rule; Dixon 
T. State, 2 Tex. Ap. 537, where mistake was made in initial letter 
of middle name of owner of property stolen; Olibare v. State (Tex. 
Or.), 48 S. W. 70, applying rule to indictment for theft, but criti- 
cising the practice. 



NOTES 

ONTHB 



TEXAS REPORTS 



CASES IN 27 TEXAS. 



27 Tex. 1-2, JONES ▼. HAYS. 

Bepleyy Bond Payable to Sheriff instead of plaintiff in execution ii 
▼alid as common-law obligation where the property was obtained 
thereunder. 

Approved in Hummel v. Del Greco, 40 Tex. Civ. 515, 90 8. W. 341, 
applying rule to bond given by heir to secure payment of legacy; Pait 
V. MeCutchen, 43 Tex. 298, replevy bond reciting one not party to 
suit as principal, but signed first by plaintiff in replevin, is good 
against plaintiff; Rose v. Winn, 51 Tex. 550, holding administrator's 
bond good where it omitted to state terms which made it enforceable 
or void; Colorado City Nat. Bk. v. Lester, 73 Tex. 546, 11 B. W. 
627, reaffirming rule where bond Was more onerous than required, 
but defective aa statutory bond; Jacobs v. Baugherty, 78 Tex. 684, 
15 8. W. 161, where bond was for delivery of property levied on in 
eaae defendant was condemned, it was defective as to sureties on 
statutory grounds; Jacobs v. Daugherty, 78 Tex. 685, 15 8. W. 161, 
where bond was wrongfully demanded under color of office; Walker 
▼. Bennett, 1 Tex. Ap. Civ. 352, where bond was executed for less 
than the statutory amount. 8ee note, 55 Am. Dee. 790. 

Distinguished on rehearing in Pait y. MeCutchen, 43 Tex. 302, where 
suit was on equitable grounds for an injunction restraining void judg- 
ment. 

27 Tex. S-6, 84 Am. Dec 604, STACY ▼. BOSS. 

Fraud Avoids All Contracts. 

Approved in McCall ▼. 8ullivan, 1 Tex. Ap. Civ. 12, and History 
Co. y. Flint, 4 Tex. Ap. Civ. 368, 15 8. W. 914, both reaffirming rule. 

Promissory Note is Void for want of assent, where signature was 
procured by wrongfully reading its terms to an illiterate man. 

Approved in Link y. Page, 72 Tex. 596, 10 8. W. 701, where grantee 
fraudulently substituted a different deed for grantor to sign; Ault- 
man y. Olson, 34 Minn. 452, 26 N. W. 452, applying rule to negotiable 
instrument where fraud was by payee's agent; Wright v. McPike, 70 
Mo. 180, applying rule to original parties where instrument signed 

2 Tex. Notes— 1 (1) 



27 Tex. 117-124 NOTES ON TEXAS EEPOETS. 10 

Distinguished in White v. Crosby (Tex. Civ.), 43 S. W. 533, holding 
delivery and acceptance of subscription list essential. 

Building of a Bridge Twelve Months after subscription therefor, 
where no time was specified, and no ratification had, is not within 
reasonable time. 

Approved in Fort Worth etc. By. v. Lindsey, 11 Tex. Civ. 247, 
32 S. W. 716, holding penal bond proposition to procure free right 
of way for railway to be constructed according to terms of Texas 
laws must be accepted by the company within reasonable time. 

27 Tez. 117-119, EBSKIKE ▼. WILSON. 

Wliere Suit Ib on a Note, and a new promise is pleaded by way of 
amendment, the amendment, being a new cause of action, should 
be served on defendant. 

Approved in McBee v. Brown, 45 Tex. 507, reaffirming rule; Stew- 
art V. Anderson, 70 Tex. 598, 8 S. W. 300, rule applied to proceed- 
ing by attachment; on rehearing in Beynolds Iron Works v. Mitchell 
(Tex. Civ.), 27 8. W. 512, Stoker v. Patton (Tex. Civ.), 35 S. W. 
66, both holding suit must be based on the new promise; Pena v. 
Pena (Tex. Civ.), 43 S. W. 1028, judgment by default on such amend- 
ment without notice should be set aside. See note, 8 Am. Dec. 163. 

Where Defendant's Acknowledgment refers to certain notes, other 
than those sued on, in hands of certain collector, it is insufficient 
as a new promise. 

Approved in Browne v. French, 3 Tex. Civ. 452, 22 S. W. 584, a 
promise to remit in a few days followed by partial remittance in 
a few days, accompanied by same statement, is sufficient; Beynolds 
Iron Works v. Mitchell (Tex. Civ.), 27 S. W. 510, where bankrupt's 
compromise offer, contingent on acceptance by all of his creditors, 
was not so accepted. 

Wliere There is a Written Acknowledgment of indebtedness, and 
only one debt between the parties, it is sufficient as a new promise. 

Approved in Browne v. French, 3 Tex. Civ. 453, 22 S. W. 584, re- 
affirming rule. 

27 Tez. 120-124, 84 Am. Dec. 611, BEESE ▼. MEDLOCS. 

The Term of the Written Instrument, and not usage of other 
agents, determines extent of an agent's authority. 

Approved in Morton ▼. Morris, 27 Tex. Civ. 266, 270, 66 S. W. 
96, 99, Skaggs v. Murchison, 63 Tex. 353, McCormic v. Bush, 2 Posey 
U. C. 414, Claflin v. Continental Jersey Works, 85 Ga. 39, 42, 11 S. E. 
721, 722, Wynne v. Parke (Tex. Civ.), 30 S. W. 55, and Conner v. 
Parsons (Tex. Civ.), 30 S. W. 85, all reaffirming rule; Henry v. 
Iiane, 128 Fed. 250, 62 C. C. A. 625, power to sell land for installment 
notes did not authorize option to pay all notes at once; Gulf etc. 
By. V. Poindexter, 70 Tex. 107, 7 S. W. 324, where agent had au- 
thority to negotiate, but not to convey; Mitchell v. Balderas, 2 
Posey U. C. 20, power to attend to all matters, sign and deliver 
papers deemed proper, does not authorize agent to sell and convey 
lands; Nunn v. Townes (Tex. Civ.), 23 S. W. 1118, proof of implied, 
will not support express, contract. See note, 93 Am. Dec. 171. 

In (General or Implied Agencies, usages of a particular trade or 
class of persons are admissible to interpret the powers conferred. 
See note, 96 Am. Dec. 373. 



11 NOTES ON TEXAS BEPOBTS. 27 Tex. 120-124 

A Power "to Sell* Transfer, and Convey," and "generally to do 
and perform all acts" in regard to principal's property, does not 
authorize a barter or exchange of the land. 

Approved in Oouldy v. Metcalf, 75 Tex. 458, 16 Am. St. Bep. 914, 

12 S. W. 831, reaffirming rule and holding under such power no 
authority to make assignment for benefit of creditors; Morton v.- 
Morris, 27 Tex. Civ. 267, 66 S. W. 97, power of attorney to sell land 
gives no authority to convey in settlement of debts; Fitzhugh v. 
Franco-Texas Land Co., 81 Tex. 312, 16 S. W. 1080, reaffirming rule 
and applying it to land corporations; Frost v. Erath Cattle Co., 
81 Tex. 509, 26 Am. St. Bep. 835, 17 S. W. 54, power to sell doe» 
not include power to convey in discharge of a debt or claim; Bhine 
V. Blake, 1 Tex. Ap. Civ. 602, power "to receive lease notes and 
lease moneys" does not authorize receipt of merchandise for rent; 
Palmer v. Texas Lumber Co., 3 Tex. Civ. 472, 23 8. W. 39, power 
to sell does not authorize conveyance by agent for a consideration 
inuring to himself alone; Smith v. Powell, 5 Tex. Civ. 380, 23 S. 
W. 1111, power "to sell and convey for a consideration" does not 
include a pre-existing moral obligation as a consideration; First 
Nat. Bank v. Hicke, 24 Tex. Civ. 271, 59 S. W. 844, power to manage, 
control, lease and sell does not imply power to mortgage land; 
Coulter V. Portland Trust Co., 20 Or. 479, 26 Pac. 567, power to 
sell does not authorize a trust deed; Meade v. Brothers, 28 Wis. 
693, power to sell does not authorize sale of land worth three thou- 
sand dollars for a nominal consideration of one dollar; Kent v. 
Cecil (Tex. Civ.), 25 S. W. 715, power to sell and convey does not 
authorize a land trade. See notes, 16 Am. St. Bep. 915; 24 Am. St. 
Bep. 574; 104 Am. St. Bep. 982. 

Where Unauthorized Act of Agent is under seal, its express rati- 
fication should be also under seal. 

See notes, 94 Am. Dec. 331, 2 Am. St. Bep. 296, and 7 Am. St. 
Bep. 54. 

.Estoppel In Pais by Principal is sufficient to confirm an unauthor- 
ized contract under seal. 

Approved in Estell v. Cole, 62 Tex. 702, where purchaser of ven- 
dor's lien had .knowledge of facts, constituting an extension of 
time for the payment; Zimpelman v. Keating, 72 Tex. 320, 12 8. 
W. 177, where unauthorized conveyance of land by agent was with- 
out valuable consideration to principal, and there was no written 
ratification; Morris v. Hall, 2 Posey U. C. 75, where principal ac- 
cepted benefits of agent's unauthprized coQtract. 

Bnrden of Ttoviag Batification is upon party asserting it. 

Approved in De Vaughn v. McLeroy, 82 Oa. 701, 10 S. E. 214, re- 
affirming rule; Edwards v. Davidson (Tex. Civ.), 79 S. W. 49, 50, 
applying rule to suit against land owner on unauthorized contract 
of sale made by agent; Blair v. Bitchie, 72 Yt. 315, 47 Atl. 1075, 
ratification of unauthorized record of mortgage must be shown to 
have been prior to filing of petition in insolvency against mortgagor. 

Assent of Principal may be Presnmed from acquiescence in it 
after having full knowledge of it. 

Approved in Hamilton v. Brooks, 51 Tex. 146, Gunter v. Austin 
College, 1 Tex. Ap. Civ. 98, German-American Ins. Co. v. Waters, 
10 Tex. Civ. 366, 30 S. W. 577, Iron City Nat. Bank v. Fifth Nat. 
Bank (Tex. Civ.), 47 S. W. 535, and De Vaughn v. McLeroy, 82 
Ga. 700, 10 S. £. 214, all reaffirming rule; Rutherford v. Montgomery, 



27 Tex. 126-134 NOTES ON TEXAS BEPOBTS, 12 

9 

14 Tax. Civ. 323, 37 S. E. 627, warranty in deed binds undisclosed 
principal where he accepted the consideration with knowledge of 
the transaction. See notes, 88 Am. Dec. 612, and 7 Am. St. Bep. 141. 

Distinguished in Etheridge v. Price, 73 Tex. 601, 11 S. W. 1040, 
where husband made representations to vendee unknown to wife and 
not recited in the conveyance. 

Wliere Principal has No Knowledge of unauthorized act of agent, 
failure to disaffirm within reasonable time does not presume ratifica- 
tion. 

Approved in Meyer v. Smith, 3 Tex. Civ. 43, 21 S. W. 997, reaf- 
firming rule; Houston etc. B. B. v. McKinney, 55 Tex. 186, an in- 
corporated company is not responsible for unauthorized, false and 
fraudulent representations of its agent; Fay v. Slaughter, 194 Dl. 
170, 88 Am. St. Bep. 148, 62 N. E. 597, 56 L. B. A. 564, fact that 
money obtained by defendant's clerk, through forgery, was passed 
through defendant's bank account did not render him liable; Britt 
V. Gordon, 132 Iowa, 435,108 N. W. 321, where land owner executing 
power of attorney authorizing grantee therein to convey had no 
knowledge that grantee had previously executed title bond in own 
name for conveyance, owner by executing power did ratify un- 
authorized act of agent; Farmer v. Bank of Oraettinger, 130 Iowa, 
477, 107 N. W. 172, where chattel mortgagor wrongfully sold mort- 
gaged property turning proceeds over to bank which paid part of 
them to holder of mortgage, retention thereof no bar to trover by 
holder of mortgage against bank; Thompson v. Liaboringman's Mer- 
cantile etc. Co., 60 W. Va. 51, 53 S. £. 911, 6 L. B. A. (n. s.) 311, 
applying rule where corporation never had full knowledge of transac- 
tion of agent in obtaining loan; Liadd v. Hildebrant, 27 Wis. 142, 
9 Am. Bep. 449, where in unauthorized sale by husband of wife's 
property, wife resided several days' journey from purchaser, and 
in a different county than where the land was located. See note, 
130 Am. St. Bep. 972. 

27 Tex. 125-128, MAY ▼. TAYLOR. 

Purchaser at Administrator's Bale may set up outstanding mort- 
gage lien upon the land in suit on his purchase moqey notes, where 
it was agreed at sale that it was to be extinguished by adminis- 
trator. 

Approved in Brown v. Montgomery, 89 Tex. 253, 255, 34 S. W. 
444, 445, reaffirming rule; Glisson v. Craig, 1 Tex. Ap. Civ. 23, where 
fraud or mistake is basis of action between original parties or 
privies; Blanks v. Bipley, 8 Tex. Civ. 159, 27 8. W. 734, where 
vendor falsely represented that three-fourths interest in an irriga- 
tion ditch extended to land; Brown v. Evans, 15 Kan. 92, where 
administrator agreed to pay the taxes due on the land; Bryan v. 
Allen (Tex. Civ.), 39 S. W. 965, where there was partial failure 
of title, together with want of fencing and due taxes, all contrary 
to representations; McLean v. Connerton (Tex. Civ.), 78 S. W. 238, deed 
of trust fourteen years old no defense to foreclosure of vendor's lien, 
where no danger of eviction. 

27 Tex. 129-134, DAB8T ▼. TBAMMELL. 

Evidence is Adininible to prove that conveyance of an alli'^ed 
homestead was fraudulent and sham in order to protect proceeds i'rom 
ereditora. 



27 Tex. 139-147 NOTES ON TEXAS EEPOBTS. 14 

parentage to rebut presumption of death from long absence; Wren 
V. Howland, 33 Tex. Civ. 93, 75 8. W. 898, statement in deed of one 
Aince deceased as to pedigree admissible even against strangers to 
title; Norris v. Hall, 124 Mich. 175, 82 N. W. 834, death of party 
may be proved by ancient documents, even against strangers; 
Auerbach v. Wylie, 84 Tex. 618, 19 S. W. 857, holding recitals 
in deed are admissible as original evidence for identification as dec- 
larations of living party of same name in another state as to his 
place of birth and family connections; Hawley v. Geer (Tex. Sup.), 
17 S. W. 915, instance where title bond in addition with other evi- 
dence established a resulting trust. 

Distinguished in Davidson v. Senior, 3 Tex. Civ. 550, 23 S. W. 
25, holding recitals in power of attorney not admissible where it 
did not appear better evidence was not obtainable. 

In 8ale Under Ezecntion, where disproportion between value of 
property and price is enormous, slight additional circumstances will 
presume the sale fraudulent. 

Approved in Pearson v. Flanagan, 52 Tex. 281, Pearson v. Hud- 
son, 52 Tex. 361, Atchison v. Owen, 58 Tex. 616, Kaufman v. 
Morriss, 60 Tex. 122, and Stark v. Ingram, 2 Posey U. C. 634, all 
reaffirming rule; Owen v. Mavasota, 44 Tex. 522, may be set aside 
by motion in court where execution issued or by equitable proceed- 
ings; Hughes V. Duncan, 60 Te'x. 75, reaffirming rule where property 
sold for one-fortieth of its real value; Allen v. Pierson, 60 Tex. 605, 
where land worth two thousand dollars sold for sixty-one dollars, 
because of an irregularity preventing judgment debtor from know- 
ing of the sale; Irvin v. Ferguson, 83 Tex. 496, 18 S. W. 821, re- 
affirming rule where land worth fourteen thousand dollars sold for 
two thousand two hundred and eighty dollars; Martin v. Ander- 
son, 4 Tex. Civ. 117, 23 8. W. 293, where six hundred and sixty 
acres of land worth over three thousand dollars was sold for eighty- 
five dollars under execution issued under irregular judgment and 
sale; Lee v. Texas etc. R. R., 22 Tex. Civ. 504, 55 S. W. 978, where 
land worth over fifteen hundred dollars was sold for fifty-one 
dollars at sheriff's sale, the sale taking 'place one-half hour earlier 
than was usual; Wright v. Dick, 116 Ind. 543, IT N. E. 309, where 
land worth two thousand five hundred dollars was unnecessarily 
sold in one parcel for a judgment of thirty-six dollars; Branch v. 
Foust, 130 Ind. 543, 30 N. £. 633, where land worth three thousand 
two hundred dollars was unnecessarily sold in one parcel for one 
hundred and sixty-seven dollars, while defendant had more than 
six hundred dollars' worth of personal property and had no notice 
of the sale; Stebbins v. Duncan, 108 U. S. 47, 20 L. 647, 2 Sup. Ct. 
Rep. 323, where but slight proof of grantor's identity was required; 
Leeper v. O'Donohue, 18 Tex. Civ. 534, 45 S. W. 328, setting aside 
execution sale of land to execution creditor where price was two-fifths 
of market value and notice of sale was less than prescribed period. 
See notes, 100 Am Dec. 146; 8 Am. St. Rep. 592; 20 L. R. A. 549. 

Distinguished in Clark v. Bell, 40 Tex. Civ. 45, 89 S. W. 41, where 
land sold under execution had been conveyed to defraud creditors. 

Party cannot Insist upon BeTersal for failure to give instructions 
which he neglected to ask. 

Approved in Boettler v. Tumlinson (Tex. Civ.), 77 S. W. 826, re- 
affirming rule. 



L 



/' 






27 Tex. 173-202 NOTES ON TEXAS EEPOBTS. 18 

27 Tex. 173-202^ PASOHAL ▼. AOKLIN. 

Special Veidict Whicli Does not Find all the facts in issue is de- 
fective. 

Approved in Moore v. Moore, 67 Tex. 296, 3 S. W. 285, Cole v. 
Crawford, 69 Tex. 126, 5 S. W. 647, Silliman v. Oano, 90 Tex. 645, 
39 S. W. 561, Texas Loan Agency v. Hunter, 13 Tex. Civ. 407, 35 8. 
W. 401, and Kilgore v. Moore, 14 Tex. 23, 36 S. W. 318, all reaffirm- 
ing rule. 

In Actions Involving Land Titles^ plaintiff need not deraign his 
title beyond common source. 

Approved in Walker v. Howard, 34 Tex. 510, reaffirming rule. 

A Conveyance In 1837 to A, as attorney of B, reciting that A was 
present, accepting for said B, passes title direct to B. 

Approved in Moseby v. Barrow, 52 Tex. 404, and Hickey v. Behrens, 
75 Tex. 501, 12 S. W. 684, both reaffirming rule. 

Secords; Judgments, or Proceedings of courts of one state cannot 
pass title to lands situated in another. 

Approved in Morris v. Hand, 70 Tex. 484, 8 S. W. 211, reaffirming 
rule. See note, 69 L. B. A. 695. 

Will not Probated In This State is not available as a muniment of 
title. 

Approved in Ochoa v. Miller, 59 Tex. 461, and Slayton v. Single- 
ton, 72 Tex. 212, 9 S. W. 877, both reaffirming rule. 

Clause In WUl Devising Testator's Property situate in common-law 
states, where trust estates may be created, included Texas property, 
although it was at the time a foreign republic. 

Approved in Brundige v. Rutherford, 57 Tex. 26, reaffirming rule; 
Orr V. O'Brien, 55 Tex. 158, devise to wife "for and during her 
natural lifetime, to be applied as she deemed best for her mainte- 
nance," vests her with power to dispose; Blanton v. Mayes, 58 Tex. 
424, under devise in trust to three persons "and the survivor of 
them," where two decline to act the third cannot convey land without 
authority of probate court, although will provided they should act 
independent of court; Laval v. Staff el, 64 Tex. 372, where will pro- 
vided for certain restraints on alienations; Gallagher v. Redmond, 64 
Tex. 626, where testator's intention was for legatees to contribute in 
case of deficiency for payment of debts; Carleton v. Roberts, 1 Posey 
IT. C. 592, where devise was to a lodge in trust for an unincorporated 
educational institution. 

Will is not Void because testator attempted to bequeath more than 
the disposable portion of his estate. 

Approved in Orr v. O'Brien, 55 Tex. 157, reaffirming rule; Bine v. 
Wagner, 135 Iowa, 632, 113 N. W. 474, burden is on contestant to 
show will devised more than one-fourth of property to corporation 
within limitation of Code 1873, section 1101. 

A Probated Will Is Presumptively Valid until invalidated in a 
direct proceeding. 

Approved in Lewis v. Ames, 44 Tex. 335, 346, and Halbert v. 
De Bode (Tex. Civ.), 28 S. W. 59, both reaffirming rule. 

Bequests to Charitable TTses are not within the constitutional pro- 
hibition of perpetuities and entailments. 

Approved in Estate of Hinckley, 58 Cal. 477, reaffirming rule; 
dissenting opinion in Danforth v. Oshkosh, 119 Wis. 306, 97 N. W. 
274, majority upholding devise for public library on other grounds. 
See note, 14 L. R. A. (n. s.) 67. 



NOTES 

ON 

TEXAS REPORTS 

BOOK TWO 

SMBRACINO THE VOLXTMES 09 THE FOLLOWING SEPOSTS: 

27 TEXAS TO 68 TEXA& mOLUSIVE. 



I 



I 

i 



27 Tex. 217-235 NOTES ON TEXAS REPORTS. IS 

Approved in Perry v. Coleman, 1 Posey U. C. 318, where dormant 
incipient pre-emption location was revived as against subsequent 
certificate location. 

Settlement on Pabllc Land, with affidavit and survey, gives settlers 
an equitable, though defeasible, title thereto. 

Approved in Buford v. Gray, 51 Tex. 335, pre-emptor may main- 
tain trespass to try title before issue of patent thereon; Turner v. 
Ferguson, 58 Tex. 10, permanent occupant in good faith is entitled 
to pre-emption claim. 

Distinguished in Wood v. Collins, 60 Fed. 142, failure to file proof 
of occupancy forfeits pre-emption as against subsequent locator. 

27 Tex. 217-223, HALL ▼. CLAIBOBNE. 

On Appeal to District Court in escheat proceedings from granting 
of administration, applicant should appear as plaintiff. 

Approved in Phelps v. Ashton, 30 Tex. 347, reaffirming rule. 

Jurisdiction of County Court is not changed because proceedings 
are in escheat. 

Approved in Hamilton ▼. Brown, 161 XJ. S. 267, 40 L. 697, 16 Sup. 
Ct. Rep. 589, proceedings for escheat presupnose death; American 
Loan & Trust Co. v. Grand River Co., 159 Fed. 780, holding void 
statute escheating money deposited in federal court unclaimed for 
ten years. See note, 12 L. R. A. 532. 

27 Tez. 224-226, TANEY ▼. EDWABD0. 

Judgment for Damages for malicious prosecution, where parties 
thereto die pending appeal, does not survive. 

Approved in Southern Pac. Co. v. Winton, 27 Tex. Civ. 508, 66 S. 
W. 480, cause of action for wrongful death not assignable. 

Distinguished in Cherry y. Speight, 28 Tex. 517, where rule was 
questioned; Ferrill v. Mooney, 33 Tex. 224, an action for value of 
cattle killed and used by trespasser does not abate by death of either 
party thereto; March v. State, 5 Tex. A p. 453, judgment in criminal 
ease imposing a fine abates with death of defendant pending appeal. 
See note, 53 Am. Rep. 536. 

Overruled in Gibbs v. Belcher, 30 Tex. 81, holding judgment ren- 
dered against defendant for assault and battery should not be dis- 
missed because of plaintiff's death. 

In Absence of Statute, the common law determines what actions 
survive in favor of or against representative of deceased party. 

Approved in Texas etc. Ry. v. Richards, 68 Tex. 378, 4 S. W. 629, 
reaffirming rule, although right of action of father for personal in- 
juries survived to child under laws of Louisiana; Mexican etc. Ry. 
V. Goodman, 20 Tex. Civ. 110, 48 S. W. 778, action for personal in- 
jury in foreign state does not survive unless by statute. 

27 Tex. 226-230, HOSAN ▼. CHIBF JUSTICE OF TRAVIS OOUKTT. 

Leasing of Part of Premises to another to keep billiard saloon 
therein is a breach of retail liquor license bond. 

Approved in Campbell v. State, 55 Ala. 94, reaffirming rule; Grady 
V. Rogan, 2 Tex. Ap. Civ. 200, holding principal liable for unlawful 
acts of his bar-tender constituting breach of his bond. 

27 Tex. 231-235, OBOOM8 ▼. BUST. 

Possession of Property is prima facie evidence of title. 

Approved in Wagner ▼. Marple, 10 Tex. Civ. 512, 31 S. W. 694, re- 
affirming rule. 



19 NOTES ON TEXAS REPORTS. 27 Tex. 236-241 

A DMd Absolnte on Its Face may be shown by clear and convincing 
parol testimony to be a tmst. 

Approved in Bridges v. 'Williams, 28 Tex. Civ. 43, 66 S. W. 122, 
Btmett V. LiOgue, 29 Tex. 289, Moreland v. Barnhart, 44 Tex. 283, 
Dean v. Lyons, 47 Tex. 21, East Line B. B. v. Garrett, 52 Tex. 139, 
Brewster v. Davis, 56 Tex. 479, Fretelliere v. Hindes, 57 Tex. 393, 
Miller v. Yturria, 69 Tex. 555, 7 S. W. 209, Brotherton v. Weathersby, 
73 Tex. 473, 11 S. W. 505, Howard v. Zimpelman (Tex. Snp.), 14 S. 
W. 61, and Dalton v. Dalton, 14 Nev. 428, all reaffirming rule; Monks 
V. McGrady, 71 Tex. 140, 8 8. W. 620, in suit to reform a deed because 
of mistake or fraud, the evidence must be clear and convincing. See 
Bote, 60 Am. Dec. 176. 

OrantofB DecUratioiis In Disparagement of Title, made several 
years after execution of the deed, are not admissible. 

Approved in Hinson v. Walker, 65 Tex. 106, D'Arrigo v. Texas etc. 
Co. (Tex. Civ.), 31 S. W. 714, and BeviUe v. Jones, 74 Tex. 151, 11 
a W. 1129, all reaffirming rule. 

87 Tex. 236-237, FOSTZSB ▼. STATE. 

Under Article 264, Code of Criminal Procedure, bail bond must dis- 
tinctly name offense charged, and it must be some offense against laws 
of state. 

Approved in McCoy v. State, 37 Tex. 224, and McGee v. State, 11 
Tex. Ap. 526, 527, both reaflSrming rule; Moore v. State, 34 Tex. 139, 
"shooting with intent to kill and murder" is not sufficient; United 
States V. Saner, 73 Fed. 677, charge of receiving and concealing smug- 
gled goods without charging guilty knowledge is insufficient. 

Bail Bond, After Indictment^ must distinctly name offense charged 
in indictment in other than general terms. 

Approved in Smalley y. State, 3 Tex. Ap. 203, 204, and Keppler v. 
State, 14 Tex. Ap. 174, both reaffirming rule; Brown v. State, 28 Tex. 
Ap. 68, 11 S. W. 1023, general terms including offense are insufficient. 

Distinguished in Barrera's Sureties v. State, 32 Tex. 650, holding 
bond before indictment sufficient if it describe some offense known to 
the law. 

Under Indictment for Aggravated Assaolt, bail bond naming assault 
and battery is insufficient. 

Approved in Brown v. State, 28 Tex. Ap. 69, 11 8. W. 1023, reaffirm- 
ing role; Addison v. State, 14 Tex. Ap. 569, reaffirming rule where 
bond was for swindling and indictment for theft. 

Under Penal Code, the term ''assault and battery" embraces simple, 
aggravated and assaults to commit some other offense. 
Approved in Smith v. State, 9 Tex. Ap. 317, reaffirming rule. 

27 Tex. 23&-241, BOOEBS ▼. BBOADNAX. 

In Ckmstming Contract^ understanding of all the parties thereto, 
and not mere intention of one party, should prevail. 

Approved in Tureman v. Stephens, 83 Mo. 222, reaffirming rule; 
Siemans & Halske etc. Co. v. Ten Broek, 97 Mo. Ap. 175, 70 S. W. 
1092, renewal note is new contract, not continuation of old one. 

Memorandum Signed by Party to new arrangement for payment of 
notes, in presence of maker and with his consent, is part of res gestae. 
See note, 95 Am, Dec 58. 



27 Tex. 241-250 NOTES ON TEXAS BEPOBTS. 20 

27 Tez. 241-248, MONBOE ▼. BTJOHAKAN. 

Where BecitalB of Deed to lands show purchase money lien, the fact 
of no written assumption of the debt does'not bring it within statute 
of frauds. 

Approved in Cannon v. McDaniel, 46 Tex. 314, Baker ▼. Compton, 
52 Tex. 261, Mathonican t. Scott, 87 Tex. 398, 28 S. W. 1064, Pickett 
V. Jackson (Tex. Civ.), 42 8. W. 568, Beitel v. Dobbins (Tex. Civ.), 
44 S. W. 302, and Johnson v. Elmen, 24 Tex. Civ. 46, 69 S. W. 606, all 
reaffirming rule; Zabel v. Schroeder, 35 Tex. 312, where only evidence 
of unpaid purchase money due in eighteen months was in recitals of 
the deed; Peters v. Clements, 46 Tex. 123, subsequent purchasers are 
bound by recitals of vendor's lien; Silliman v. Gammage, 55 Tex. 371, 
applying rule to conveyance from mortgagor to mortgagee; Hicks v. 
Morris, 57 Tex. 665, lender who advances money to pay a lien creditor 
is entitled to subrogation; Muller v. Biviere, 59 Tex. 642, 46 Am. Bep. 
292, applying rule where consideration was not to foreclose a deed of 
trust; King v. Brown, 80 Tex. 278, 16 8. W. 39, purchaser of mort- 
gagor's equity is entitled to be made party to foreclosure proceedings 
where mortgagee has notice of his purchase; G. H. etc. By. v. Ehren- 
worth, 1 Tex. Ap. Civ. 432, where there was a consideration for the 
promise; Epstein v. Wolfe (Tex. Civ.), 35 S. W. 52, where party pur- 
chasing stock of liquors assumed payment of debt of seller as part 
of the consideration. See note, 15 L. B. A. (n. s.) 1090. 

Purchaser at Void Trust Sale acquires no title to the debt for which, 
property was sold. 

Approved in Boone v. Miller, 86 Tex. 80, 23 S. W. 576, purchaser 
from purchaser at void trust sale, where purchaser was beneficiary of 
the trust, acquires no title to the debt. 

One for Whose Benefit Money is Paid by party to another may 
maintain action against latter for it. 

See note, 25 L. B. A. 262, 271. 

In Equitable Actions, where all parties are not brought in, the suit 
should be continued and not dismissed. 

Approved in Cannon v. McDaniel, 46 Tex. 315, reaffirming rule. 

Where Jury is Waived and record shows what judgment should be 
rendered, appellate court will render it. 

Approved in Linney v. Peloquin, 35 Tex. 37, court will not disturb 
verdict when founded on legitimate and competent evidence; Black 
V. Bockmore, 50 Tex. 99, in suit voiding sale of trust property court 
may render judgment on the note in favor of purchaser. 

Homestead is not Acquired until title to land eonstituting it is ac- 
quired. 

Approved in McCreery v. Fortson, 35 Tex. 649, and Clements v. 
Xeal, 1 Posey IT. C. 48, both reaffirming rule. See note, 62 Am. Dee. 
512. 

27 Tez. 248-250, HABBI8 ▼. HABDEliAN. 

Where Owner of Land sold it to another, but remained in possession 
until his death, his heirs could not plead the limitations of three or 
five years. 

Approved in Voight v. Mackle, 71 Tex. 80, 8 S. W. 624, Grigsby v. 
May, 84 Tex. 254, 19 S. W. 348, Baldwin v. Boot, 90 Tex. 554, 40 S. 
W. 6, Henderson v. Beaton, 1 Posey U. C. 33, Goldman v. Sotelo, 8 
Ariz. 92, 68 Pac. 560, Shell v. German Coal Co., 139 111. 30, 28 N. E. 
750, and League v. Atchison, 6 Wall. 116, 18 L. 765, all reaffirming 



21 NOTES ON TEXAS BEPOBTS. 27 Tex. 250-255 

rule; Spring ▼. Eisenbach, 51 Tex. 435, purchaser at sheriif' s sale is 
not affected by subsequent bankrupt s^le of senior lien where he was 
no party to the proceedings; Morris v. Meek, 57 Tex. 387, where pos- 
session prior to purchase was merely by permission of vendor; Long 
V. Brenneman, 59 Tex. 213, where purchase was from one who had no 
title to convey; Blum v. Bogers, 71 Tex. 677, 9 S. W. 597, sheriflP's 
sale, if valid, breaks chain of title of defendant in execution as to 
the three jeat limitations; Bailey v. Laws, 3 Tex. Civ. 535, 23 S. W. 
22, applying rule where decree was an adjudication which produced 
hiatus in title; lilies v. Frerichs, 11 Tex. Civ. 678, 32 8. W. 917, re- 
affirming rule as to three year limitation; Daugherty v. Yates, 13 Tex. 
Civ. 650, 35 S. W. 938, applying rule to five year statute of limita- 
tion; Morgan v. Baker (Tex. Civ.), 40 S. W. 28, article 3218, Sayles' 
Civ. St., preventing the running of limitations for twelve months after 
death of party, applies to land cases also; New York etc. Land Co. v. 
Votah (Tex. Civ.), 52 S. W. 128, where a judgment severed plaintiff's 
chain of title; May v. Sutherlin, 41 Wash. 613, 84 Pac. 586, purchaser 
from possessor pending suit against latter for recovery of land is 
not bona fide purchaser under color of title, and minor owner of land 
not bound to sue such purchaser within three years after majority 
in accordance with Bal. Code, sec. 5505. 

Distinguished in League v. Bogan, 59 Tex. 430, where the vice in 
the title was prior to issuance of the patent; Snowden v. Bush, 69 
Tex. 594, 6 S. W. 770, second vendor, with knowledge of previous sale, 
may prescribe the land under the five year limitation. 

27 Tez. 250-266, LAWLEB ▼. WHITE. 

Parol Teatiinoxiy la not AdmlBBlble to impeach the recital in record 
of district court of service by publication. 

Approved in Bandall v. Collins, 58 Tex. 232, Long v. . Brenneman, 
69 Tex. 212, Letney v. Marshall, 79 Tex. 515, 15 S. W. 587, Traylor 
V. Lide (Tex. Sup.), 7 S. W. 62, and Anderson v. Lockhart, 2 Posey 
U. C. 70, all reaffirming rule; Carpenter v. Anderson, 33 Tex. Civ. 489, 
77 8. W. 293, judgment not impeachable as to third parties, though 
statement of service untrue; Irish v. State, 34 Tex. Cr. 131, 29 S. W. 
779, applying rule to local option election; Cooper v. Mayfield (Tex. 
Civ.), 57 S. W. 60, district court judgment showing on its face that 
defendant appeared in suit is not subject to collateral attack. 

Distinguished in Hamblen v. Knight, 60 Tex. 39, in direct proceed- 
ing to set aside the judgment. 

Where Record is Silent m to Notice, judgment of court of general 
jurisdiction cannot be collaterally impeached for want of jurisdiction. 

Approved in Mitchell v. Menley, 32 Tex. 464, Davis v. Wells, 37 Tex. 
610, Black ▼. Epperson, 40 Tex. 179, Guilford v. Love, 49 Tex. 741, 
Fitch V. Boyer, 51 Tex. 344, Martin v. Bobinson, 67 Tex. 374, 3 S. W. 
553, Wilkerson v. Schoonmaker, 77 Tex. 617, 19 Am. St. Bep. 806, 14 
8. W.' 224, Buse ▼. Bartlett, 1 Tex. Civ. 338, 21 S. W. 53, Dickson v. 
Moore, 9 Tex. Civ. 618, 619, 30 S. W. 79, Bradford v. Bogers, 2 Posey 
XT. C. 60, and Head v. Daniels, 38 Kan. 13, 15 Pac. 917, all reaffirming 
rule; Allen ▼. State (Tex. Cr.), 59 S. W. 266, applying rale to 
prosecution for violation of liquor law where order declaring result of 
local option election was unsuccessfully attacked; Oswald v. Kamp- 
mann, 28 Fed. 40, reaffirming when citation was by publication; 
Tucker y. Pennington (Tex. Civ.), 45 S. W. 314, default judgment 



27 Tex. 255-280 NOTES ON TEXAS REPORTS. 22 

from justice court cannot be attacked collaterally because it does 
not recite citation of defendant. See note, 11 L. B. A. 158. 

District Conrt in 1843 could acquire jurisdiction of nonresident de- 
fendant hy publication of notice to appear and answer the writ. 

Approved in O'Neill v. Brown, 61 Tex. 37, and Quarl v. Abbett, 102 
Ind. 241, 52 Am. Bep. 668, 1 N. E. 481, both reaffirming rule. 

27 Tez. 255-256, UUTOHINSON ▼. UKDEBWOOD. 

Wife 18 not Liable on a joint note with her husband for necessaries 
purchased by him for members of her family other than herself and 
children. 

Approved in Bhodes v. Gibbs, 39 Tex. 440, Searcy v. Mealier, 1 Tex. 
Ap. Civ. 523, and Gossard v. Lea, 3 Tex. Civ. 6, 21 S. W. 705, all re- 
affirming rule; Flannery v. Chidgey, 33 Tex. Civ. 640, 77 S. W. 1035, 
wife not chargeable with necessaries furnished husband. 

Distinguished in Hairris v. Williams, 44 Tex. 125^ where debt was 
for rent of house occupied by wife and children. 

27 Tex. 262-268, GABBOLL ▼. EVANS. 

Assignment by a Partner of a Beceipt of his partner, stating that 
he is in possession of certain joint property, operates as a dissolution 
of the partnership, although not so intended. 

Approved in Kellar v. Self, 5 Tex. Civ. 396, 24 S. W. 579, reaffirm- 
ing rule; Watson v. McKinnon, 73 Tex. 215, 11 S. W. 198, where one 
partner conveyed his interest in a partnership homestead to his wife. 
See notes, 69 Am. St. Bep. 417, 418. 

Limitations as to Partnership Property do not run until one partner 
repudiates the trust relation. 

See note, 40 Am. St. Bep. 575. 

27 Tex. 271-272. PYBON ▼. BUTLEB. 

Where Pleadings Show No Gause of Action or defense, objections 
to testimony thereunder should be sustained. 

Approved in McDannell v. Horrell, 1 Posey U. C. 525, reaffirming 
rule; Black v. Calloway, 30 Tex. 237, reaffirming rule where petition 
failed to show liability for damages because of bill of exchange be- 
ing by a merchant. 

27 Tex. 276-281, TUGKEB v. ANDEBSON. 

Where Evidence will not Warrant the verdict, new trial should be 
granted. 

Distinguished in Wilson v. Green, 1 Tex. Ap. Civ. 41, verdict will be 
sustained where there is a conflict upon meager testimony. 

Plaintiff is not Compelled to Decide defendant's residence rightly, 
where it is rendered doubtful by defendant's conduct. 

Approved in Kuteman v. Page, 3 Tex. Ap. Civ. 204, suit against per- 
son whose residence is unknown may be brought in county where 
plaintiff resides. 

27 Tei 282-286, THOMPSON v. HEBBINO. 

Declarations of Vendor, made after conveyance, are not admissible 
to impeach his vendee's title. 

Approved in Henson v. Walker, 65 Tex. 106, Beville v. Jones, 74 
Tex. 151, 11 S. W. 1129, Smith v. Gillum, 80 Tex. 127, 15 S. W. 796, 
Sanger y. French Piano etc. Co., 21 Tex. Civ. 524, 52 S. W. 622, D'Ar- 



23 NOTES ON TEXAS REPOBTS. 27 Tex. 286-317 

rigo ▼. Texas etc. Co. (Tex. Civ.), 31 S. W. 714, Smith v. James (Tex. 
Civ,), 42 S. W. 793, and Harvey v. Gardner, 41 Ohio St. 648, all re- 
affirming rule. See note, 42 Am. Dec. 633. 

Distinguished in Coughran v. Alderete (Tex. Civ.), 26 S. W. Ill, 
where declarations by former owner on boundary question were al- 
lowed. 

27 Tex 286-303, 84 Am. Dee. 610, TTSAN ▼. PA80HAL. 

Before an Instmment can be recognized as a valid will, all the 
statutory requisites to its execution should be shown. 

Approved in Ochoa v. Miller, 59 Tex. 461, will not probated is no 
evidence of title; Lewis v. Whitworth (Tex. Civ.), 54 S. W. 1078, will 
not probated is not effective. 

After General Verdict on Issne of devlsavit vel non, party failing 
to ask for further instructions cannot complain. 

See note, 99 Am. Dec. 124. 

Dedaratlone of Testator are admissible to rebut presumption of can- 
cellation or revocation of a will arising from its loss previous to tes- 
tator's death. 

Approved in Collagan v. Burns, 57 Me. 464, Behrens v. Behrens, 47 
Ohio St. 335, 21 Am. St. Bep. 826, 25 N. E. 213, and Tucker v. White- 
head, 59 Miss. 607, all reaffirming rule; McElroy v. Phink, 97 Tex. 
157, 158, 76 S. W. 755, admitting declarations of testatrix to prove 
revocation of will last shown to be in possession 'of her husband; Shee- 
han V. Kearney, 82 Miss. 696, 21 So. 44, 35 L. B. A. 102, declarations 
of testator as to testamentary intention are competent on issue of tes- 
tamentary capacity and of undue influence; In re Shelton's Will, 143 
N. C. 225, 55 S. E. 708, declarations of testator after date of purported 
revocation on margin of will, tending to show he did not write alleged 
revocation, are inadmissible. See notes, 45 Am. Bep. 343; 30 Am. St. 
Bep. 718; 107 Am. St. Bep. 468; 38 L. B. A. 436. 

To Establisli a Lost WUl, it is necessary to prove by direct testi- 
mony or deductions from established facts its formal execution. 

See notes, 21 Am. St. Bep. 827; 43 Am. St. Bep. 524; 77 Am. St. Bep. 
470; 77 Am. St. Bep. 471; 78 Am. gt. Bep. 555; 38 L. B. A. 454. 

Declarations of Testator are inadmissible to prove execution of will. 

Approved in Be Will of Dunahugh, 130 Iowa, 696, 107 N. W. 927, 
following rule. See note, 38 L. B. A. 442. 

A Iietter from Testator to his agent directing him to destroy his will 
does not ipso facto operate as a revocation. 

Approved in Johnson v. Brown, 51 Tex. 79, reaffirming rule. See 
note, 100 Am. Dec. 747. 

A Suit to Probate a Loet WUl is, it seems, properly tried before a 
jury. 

Approved in Cockrill v. Cox, 65 Tex. 673, will contest is triable be- 
fore a jury in district court. 

Cancellation la Presomed if Testator's Will cannot be found after 
his death. 

See note, 28 Am. St. Bep. 347. 

27 Tex. S04-317, 84 Am. Dec. 631, BH0DE8 ▼. WHITIBHEAD. 

Biparian Owner ie Generally Entitled to Land to middle of stream 
and to use of natural flow of the water. 

See notes, 79 Am. Dec. 638; 95 Am. Dec. 501; 97 Am. Dec. 565; 98 
Am. Dee. 534; 100 Am. Dec. 161; 3 Am. St. Bep. 797. 



27 Tex. 304-317 NOTES ON TEXAS REPORTS. 24 

Riparian Owner has No Property in the water itself, but only to its 
use in eommon with other riparian owners. 

See notes, 87 Am. Dee. 130; 30 L. R. A. 668. 

Riparian Owner is Entitled to 8nch Water Power as consists in fall 
of stream from where it enters to where it leaves his lands. 

See notes, 38 Am. Dee. 112; 79 Am. Dec. 643; 86 Am. Dec. 414; 90* 
Am. Dee. 541. 

Lower Riparian Owners cannot complain because water is entirely- 
consumed, where its consumption is for use of people, cattle, house- 
hold or irrigation purposes. 

Approved in Barrett v. Metcalfe, 12 Tex. Civ. 253, 33 S. W. 760, re- 
affirming rule; Tolle v. Gorreth, 31 Tex. 365, 98 Am. Dee. 542, party 
may use a spring on his land for irrigation, regardless of whether it 
weakens it or not; Baker v. Brown, 55 Tex. 379, 380, use of water for 
domestic purposes is superior to that of irrigation where not indis- 
pensable. See notes, 79 Am. Dec. 642; 93 Am. Dec. 739; 41 L. R. A. 
742. 

Distinguished in Union Mill etc. Co. v. Ferris, 2 Saw. 194, Fed. Cas. 
14,371, holding right to irrigation is not a natural want, and can only 
be used to reasonable extent. 

Explained in Lousdale Co. v. City of Woonsocket, 25 R. I. 431, 56 
Atl. 449, city which is riparian owner has no right as against lower 
riparian owner to diminish amount of water in stream by abstracting 
it for municipal purposes. 

Disapproved in Watkins Land Co. v. Clements, 98 Tex. 586, 588, 86 
a. W. 736, 737, affirming 36 Tex. Civ. 347, 82 S. W. 669, holding state- 
ment in cited case to be obiter dictum. 

Riparian Owner Using Water Power cannot unreasonably detain 
water, not consumed, from lower owners. 

See note, 91 Am. Dec. 560. 

Title by Prescription to Riparian JServitudes is a mere presumption^ 
resting upon a given state of facts. 

See note, 100 Am. Dec. 608. 

Bnrden is on One Who Olaims a .riparian servitude by prescription, 
to prove facts authorizing it. 

Approved in Texas Western Ry. v. Wilson, 83 Tex. 156, 18 S. W. 
326, and Toyaho Creek etc. Co. v. Hutchins, 21 Tex. Civ. 280, 62 S. W. 
104, both reaffirming rule. See note, 59 L. R. A. 845. 

Riparian Benritndes may be Acquired by prescription. 

Approved in Baker v. Brown, 55 Tex. 381, reaffirming rule; Clements 
V. Watkins Land Co., 36 Tex. Civ. 346, 82 S. W. 669, applying rule to 
unlawful diversion of water to nonriparian lands; Cape v. Thompson, 
21 Tex. Civ. 689, 53 S. W. 372, where ten years' diversion of stream 
for water power constituted prescription. 

Right to a Nuisance cannot be acquired by prescription. 

Approved in Reed v. Mayor, 92 Ala. 349, 9 So. 164, Sims v. Frank- 
fort, 79 Ind. 451, Brookline v. Mackintosh, 133 Mass. 226, and Wood- 
ruff V. North Bloomfield etc. Co., 9 Saw. 515, 18 Fed. 788, all reaffirm- 
ing rule. See notes, 93 Am. Dec. 136; 30 Am. St. Rep. 557; 53 L. R. 
A, 851, 893, 896. 

Where Riparian Owner Tl^ows Back Water of stream on land of 
upper owner, he is liable in tort for damages, or nuisance created, 
thereby may be abated. 

See note, 59 L. R. A. 819. 



25 NOTES ON TEXAS RBPOBTS. 27 Tex. 317-336 

A Use by Bipariaa Owner which ereates pools of stagnant water or 
aifeets health of the community is a nuisance. 

Approved in Parker v. People, 111 HI. 604, reaffirming rule. See 
note, 124 Am. St. Bep. 605. 

27 Tex. 317-828, BAILY V. TBAMMBT.Ti. 

Defendant may, for His Own Protection, join one who has joint in- 
terest with plaintiff by cross-action against plaintiff and such person. 

Approved in HoIIoway ▼. Blum, 60 Tex. 629, and Stevens v. Lee, 70 
Tex. 280, 8 S. W. 41, both reaffirming rule. 

It is for the Jury whether a claim is barred by statute of limita- 
tions. 

Distinguished in Western Union Beef Co. ▼. Thurman, 70 Fed. 963, 
where adverse holding was interrupted by holding by same party for 
others not in privity. 

Possession of Ootenant is presumptively in favor of the common 
title. 

Approved in Teal v. Terrell, 58 Tex. 262, Franks v. Hancock, 1 
Posey TJ. C. 565, and Gist v. East, 16 Tex. Civ. 278, 41 S. W. 398, all 
reaffirming rule. 

Parol Admissions of Married Woman as to sale of her separate 
property do not preclude her recovery where there has been no statu- 
tory conveyance thereof. 

Approved in Fitzgerald v. Turner, 43 Tex. 84, reaffirming rule. 

Evidence to Bostain an Ouster by cotenant must be stronger than 
where there is no such privity. 

Approved in Nickrans v. Wilk, 161 111. 81, 43 N. E. 742, and Price 
V. Hall, 140 Ind. 317, 49 Am. St. Bep. 198, 39 N. E. 942, both reaffirm- 
ing rule. See note, 13 Am. Dec. 140. 

27 Tez. 329-333, ELIZABETH ▼. STATE. 

In Mnrder Case, the act of accused 'in going to pool of water and 
brinsring therefrom body of deceased is admissible independent of con- 
fession. 

Approved in Bhodes v. State, 11 Tex. Ap. 573, and Nolen v. State, 
14 Tex. Ap. 480, 481, 46 Am. Bep. 249, both reaffirming rule. See note, 
53 L. B. A. 405. 

In Criminal Case, to Support Verdict of Guilty solely on circumstan- 
tial evidence, no other conclusion must be fairly and reasonably de- 
ducible. 

Approved in Pogue v. State, 12 Tex. Ap. 294, reaffirming rule. 

27 Tex. 333-334, STATE v. HALL. 

Indictment for DlegaUy Marking and branding cattle must charge 
that it was 'Vithout consent of owner," and "with intent to defraud." 

Approved in State v. Haws, 41 Tex. 162, reaffirming rule; Cresap v. 
State, 28 Tex. Ap. 529, 13 S. W. 992, applying rule to description of 
offense in bail bond. 

An Indictment must Charge every material element of the crime. 

Approved in Stringer v. State, 13 Tex. Ap. 522, reaffirming rule. 

27 Tex. 335-336, BBOWN ▼. STATE. 

Liquor License cannot be Antedated so as to have effect from time 
when county court granted the application. 

Approved in Keiser v. Slate, 78 Ind. 433, reaffirming rule. 



27 Tex. 337-349 NOTES ON TEXAS BEPOBTS. 26 

It Seems That a Conviction will be sustained under aet of February 
2, 1856, relating to liquor licenses. 
Approved in State y. Garcia, 38 Tex. 546, reaffirming rule. 

27 Tex 337, HEBRON v. STATE. 

To Sustain Appeal in Criminal Case, recognizance must be entered 
by defendant in open court. 

Approved in Jones v. State, 1 Tex. Ap. 487, and Harris v. State, 2 
Tex. Ap. 139, both reaffirming rule. 

27 Tex. 339-345, FERGUSON V. FERGUSON. 

It is Sufficient if a Will discloses a disposition of property, to take 
effect after death of testator, and still be revocable during his life. 

Approved in Naugher v. Patterson, 9 Tex. Civ. 174, 28 S. W. 684, 
reaffirming rule; Hamilton v. Jones, 32 Tex. Civ. 600, 75 S. W. 555, 
holding reservation in deed of power to control and sell to be re- 
pugnant and void; De Bajligethy v. Johnson, 23 Tex. Civ. 275, 56 
S. W. 96, where instrument concluded with "this deed is not to take 
effect until after my death*'; Carlton v. Cameron, 54 Tex. 77, 38 Am. 
Bep. 621, instance where instrument in form of deed but taking effect 
after death was held a will. 

There is Always a Presumption against an imperfect testamentary 
paper. 

Approved in McHugh v. Gallagher, 1 Tex. Civ. 201, 20 S. W. 1116, 
Ellis V. Ellis, 5 Tex. Civ. 49, 23 S. W. 997, and Stanley v. Samples, 
2 Posey U. C. 131, all reaffirming rule; Hart v. Bust, 46 Tex. 572, 
where instrument was in form of deed and delivered as such; Grimes 
V. Watkins, 59 Tex. 139, instrument of doubtful meaning should be 
left to jury; Green v. Barnes, 9 Tex. Civ. 666, 29 S. W. 548, latent 
ambiguity may be explained by parol in trespass to try title. See 
note, 38 Am. Bep. 622. 

Whether a Doubtful Instrument is a Will should be determined by 
jury on facts of execution, delivery, and declaration of maker. 

Approved in Bogers v. Kennard, 54 Tex. 35, Hannig v. Hannig 
(Tex. Civ.), 24 S. W. 697, reaffirming rule. 

Distinguished in Stanley v. Samples, 2 Posey U. C. 130, where in- 
strument did not have operative words of a deed. 

27 Tex. 345-349, MAPES V. LEAIi. 

Under Common Law, Deeds more than thirty years old, if ap- 
parently authentic, are admissible without proof of execution. 

Approved in Cox v. Cock, 59 Tex. 524, and Ammons v. Dwyer, 78 
Tex. 646, 15 S. W. 1051, both reaffirming rule. See notes, 9 Am. 
St. Bep. 302; 35 L. B. A. 344. 

Execution of Any Instrument may be inferred from circumstantial 
evidence in absence of better evidence. 

Approved in Houston etc. B. B. v. Chandler, 51 Tex. 419, and Baylor 
V. Tillebach, 20 Tex. Civ. 493, 49 S. W. 722, both reaffirming rule; 
Newby v. Haltaman, 43 Tex. 317, circumstantial evidence of existence 
of deed, coupled with possession, are strongly corroborative of its 
genuineness. 

Copy of an Hipotica Especial is not admissible, although certified by 
commissioner of general land office, because not an archive. 

Approved in State v. Cardinas, 47 Tex. 288, copy of title to land, 
not part of archives, is not admissible although authenticated by 
alcalde in 1828. 



27 NOTES ON TEXAS REPORTS. 27 Tex. 350-358 

Mere Fact Tbat Witness "had some basiness" with a party is not 
sufficient to testify to his handwriting. 

Approved in Haun v. State, 13 Tex. Ap. 389, reaffirming rule. See 
note, 63 L. R. A. 977. 

Wliere Grantor and Subscribing Witnesses are dead, deed may be 
admitted in evidence on proof of their handwriting. 
See notes, 35 L. R. A. 326, 334. 

27 Tex. 350-354, CABUSLE ▼. HABT. 

Where Patent was Issued to One m Heir, the other heirs are 
charged with such knowledge from time when they might with ordi- 
nary diligence have ascertained it. 

Approved in Connolly v. Hammond, 51 Tex. 647, Cole v. Noble, 63 
Tex. 434, French v. Koenig, 8 Tex. Civ. 347, 27 S. W. 1081, and Cul- 
mell V. Borroum, 13 Tex. Civ. 464, 35 S. W. 944, all reaffirming rule. 

Unexcused Failnre to Assert Eqnltable Bights to land for ten 
years makes the claim a stale demand, not enforceable by equity 
court. 

Approved in McMasters v. Mills, 30 Tex. 595, McKin v. Williams, 
48 Tex. 92, Montgomery v. Noyes, 73 Tex. 210, 11 S. W. 139, and 
French v. Koenig, 8 Tex. Civ. 345, 27 S. W. 1080, all reaffirming rule; 
Reed v. West, 47 Tex. 248, specific performance will be refused 
holder of title bond after lapse of ten years; Lieague v. Rogan, 59 
Tex. 435, where hostile right was asserted for thirty-three years with- 
out being questioned; Lewis v. Cole, 60 Tex. 344, where no steps were 
taken to enforce bond for title for over twenty-eight years; Howard 
V. Stubblefield, 79 Tex. 4, 14 S. W. 1045, applying rule to locative 
interest in land; Browning v. Pumphrey, 81 Tex. 168, 16 S. W. 872, 
where owner of legal title had held land unquestioned for thirty 
years; Abernathy v. Stone, 81 Tex. 435, 16 S. W. 1104, where vendor 
lifted the certificate and relocated on other lands, vendee lost his 
equity by ten year laches; League v. Heneeke (Tex. Civ.), 27 S. W. 
1050, where thirty years' delay in bringing suit for undivided interest 
in land made it a stale demand. See notes, 58 Am. Dec. 144, and 60 
Am. Dec. 213. 

Distinguished in Murphy v. Welder, 58 Tex. 241, where plaintiff 
had a clear legal title to land. 

27 Tex. 355-358, PEELEB ▼. GT7ILKEY. 

Limitations will not Bnn Against One Cotenant unless other 'co- 
tenant claimed exclusive and open adverse possession. 

Approved in Carson v. Broady, 56 Neb. 652, 71 Am. St. Rep. 693, 
77 N. W. 81, Cooey v. Porter, 22 W. Va. 125, both reaffirming rule. 
See note, 109 Am. St. Rep. 624. 

Party cannot Complain That Aspects of the Law applicable to case 
were not charged, where he failed to point them out to the court. 

Approved in Hawkins v. Cramer, 63 Tex. 102, Texas etc. Ry. v. 
Gay, 86 Tex. 609, 26 S. W. 615, Humphreys v. Edwards, 89 Tex. 518, 
36 S. W. 335, Johns v. Brown, 1 Tex. Ap. Civ. 569, Myer v. Fruin 
(Tex.), 16 S. W. 870, and McDonald v. Texas etc. R. R., 1 Posey 
IT. C. 196, all reaffirming rule. 

Miscellaneous. — Roemile v. Leeper, 2 Posey U. C. 536, erroneously 
cited as holding that defective plea of disability in reply to plea of 
limitations may be waived. 



27 Tex. 359-372 NOTES ON TEXAS EEP0BT8. 28 

27 Tex. 359-365, laAMBEBT v. WEIB. 

Begistered Oopy of Testimonio, original of which is not in public 
archives, is no notice to third parties. 

Approved in Wood v. Welder, 42 Tex. 408, reaffirming rale; Haw- 
ley V. Bullock, 29 Tex. 222, unregistered conveyances do not affect 
third parties; Hutchins v. Bacon, 46 Tex. 415, testimonio cannot be 
admitted to record without proof of its execution; State v. Car- 
dinas, 47 Tex. 287, copy of land title, not part of his archives, Is 
no evidence although authenticated by the alcalde; Beaumont Pas- 
ture Co. T. Preston, 65 Tex. 454, 455, act of 1839 did not authorize 
record of testimonio without proof of its execution. 

A Plea Treated by the Parties at Trial as sufficient will be so 
treated in appellate court. 

Approved in Boemilie v. Leeper, 2 Posey U. C. 536, reaffirming 
rule. 

A Void Testimonio Is Admissible under plea of limitations to show 
extent of the adverse possession claimed under it. 

Approved in Ortiz v. Be Benavides, 61 Tex. 68, allowing instru- 
ment designated as a will to fix limits of land claimed adversely; 
Wille V. Ellis, 22 Tex. Civ. 467, 54 S. W. 925, unauthorized bond 
for title is admissible to fix limits of possession under ten years' 
limitation. See note, 76 Am. Dec. 57. 

Under Plea of Ten Years' Limitatiooa, depositions tending to prove 
the adverse possession are admissible on the question of fact. 

Approved in Moses v. Dibrell, 2 Tex. Civ. 463, 21 S. W. 417, an 
unauthorized deed by agent may be basis for ten years' limitation. 

Grant Within the Uttoral Iteagues, without consent of federal 
executive, is inoperative. 

Approved in Wood v. Welder, 42 Tex. 407, reaffirming rule; Owen 
V. Presidio Mining Co., 61 Fed. 10, testimonio is not admissible 
without proof of its execution, even if recorded. 

It Seems That Possession under a void grant does not constitute 
color of title. 

Approved in Parker v. Bains, 59 Tex. 17, possession under void 
grant will not sustain plea of limitations of three years; Besson 
V. Bichards, 24 Tex. Civ. 68, 58 6. W. 614, where land certificate 
was located on a previously surveyed location under school land 
purchase act of 1887. 

There is Ko Authority for the Withdrawal of Instruments from, 
the public archives for purpose of registration. 

Approved in McCarty v. Johnson, 20 Tex. Civ. 189, 49 S. W. 1100, 
reaf^rming rule. 

27 Tez. 366-367, McGLOIN v. VAKDEBUP. 

An Administrator Who Employs an Attorney to prosecute a suit 
in his behalf becomes personally responsible for his fee. 

See note, 52 Am. St. Bep. 122. 

27 Tez. 368-370, KELLY V. WEBB. 

Agreement to Deliyer Gom at Future Date and note for purchase 
price payable on day corn deliverable are dependent contracts. 

See note, 43 L. B. A. 469. 

27 Tez. 370-372, POWEB ▼. GILLESPIE. 

Kew Trial will not be Chrantod where judgment by default was 
through defendant's negligence or laches. 



29 NOTES ON TEXAS REPORTS. 27 Tex. 372-407 

Approved in Fant v. Jones, 36 Tex. Civ. 140, 81 S. W. 339, judg- 
ment will dot be set aside for negligence of attorney; Pipkin v. Kauf- 
man, 62 Tex. 550, where motion to set aside was not filed within 
statutory time and was not accompanied by affidavit of merits; John- 
son V. Brown (Tex. Civ.), 65 8. W. 486, where party's attorney knew 
of existence of the testimony, but not of whereabouts of witness, 
new trial will be refused where he failed to ask for continuance. 

Absence of CouiBel to Attend Another Ck>iirt is not sufficient In 
itself for reopening the judgment. 

Distinguished in Goodhue v. Meyers, 58 Tex. 409, where absence 
of counsel and also of defendant was caused by serious illness. 

27 Tex. 372-382, IiAFFEBTT v. MUBBAY. 

The Object of O. ft W. Big., article 937, was to prevent pretended 
loans, reservations, or limitations, and to require the record of such 
titles. 

Approved in Evans v. Murray, 27 Tex. 384, this case was decided 
on authority of the case cited. 

27 Tex. 385-389, GOOHBANE v. DAY. 

Citation In Error should describe the judgment so that defendant 
may with reasonable certainty know what judgment is meant. 

Approved in Southern Pacific Ry. v. Stanley, 76 Tex. 420, 13 S. W. 
481, reaffirming rule. 

CKiardian, in Snlng Out Writ of Error in suit to which he is not 
party, must aver his character and interests as such guardian. 

Approved in Wilson v. Hall, 13 Tex. Civ. 492, 36 S. W. 329, reaffirm- 
ing rule; State Nat. Bank v. City of Dallas, 28 Tex. Civ. 301, 6S 
S. W. 335, corporation suing out writ of error must show its iden- 
tity with corporation named in judgment. 

27 Tex. 390-392, BESOH V. BESCH. 

In Divorce, Petition Should Show that abandonment was volun- 
tary or without cause, and has extended for statutory time. 

Approved in McGowen v. McGowen, 52 Tex. 668, and Hannig 
V. Hannig (Tex. Civ.), 24 S. W. 696, reaffirming rule. See note, 119 
Am. St. Rep. 619. 

27 Tex. 393-407, LEDYABD Y. BBOWK. 

In a Conflict of Colonial Grants caused by one lapping over limits 
of other, the elder grant will prevail. 

Approved in Sheirburn v. Hunter, 3 Woods, 285, Fed. Cas. 12,744, 
reaffirming rule; Sideck v. Duran, 67 Tex. 260, 3 S. W. 266, where 
land was "two or three miles" outside of the littoral leagues; An- 
derson V. Jackson, 69 Tex. 347, 6 S. W. 576, the better title draws 
to a partial occupancy constructive possession of all parts thereof 
not in actual possession of hostile 'claimant. 

Contract by Coloniste to Sell Lands in either De Witt's or Aus- 
tin's colony, before six years after issuance of grants, were void. 

Approved in Thomas v. Moore, 46 Tex. 434, and Williams v. 
Wilson, 76 Tex. 72, 13 S. W. 70, both reaffirming rule; Baldwin 
r. Goldfrank, 9 Tex. Civ. 275, 26 S. W. 159, deed to lands acquired 
under act of February 8^ 1850, pending investigation of titles thereto, 
waa void. 



27 Tex. 407-422 NOTES ON TEXAS BEPORTS. 30 

Party will not 1m Permitted to Avail Himself of illegal contract 
unless he refunds consideration received thereunder. 

Approved in Rodriguez v. Hayne, 76 Tex. 232, 13 8. W, 298, Nor- 
ton V. Conner (Tex. Sup.), 14 S. W. 194, Buchanan v. Park (Tex. 
Civ.), 36 8. W. 809, and Houston v. Killough, 80 Tex. 308, 16 S. W. 
58, all reaffirming rule. See note, 60 Am. Dec. 172. 

Fact Tliat Land wae not Aasessed does not dispense with proof 
that taxes thereon have been paid in support of five years' limita- 
tion. 

Approve4 in Snowden v. Rush, 69 Tex. 596, 6 S. W. 771, posses- 
sion and payment of taxes must be concurrent. 

Where Verdict is Found on Special Issues Alone, court cannot look 
to record for other facts in support of judgment. 

Approved in Kuhlman v. Medlinka, 29 Tex. 391, Young ▼. Van 
Benthuysen, 30 Tex. 767, Smith v. Warren, 60 Tex. 463, Silliman 
V. Gano, 90 Tex. 645, 39 S. W. 561, Texas etc. Ry. v. Watson, 13 
Tex. Civ. 558, 36 S. W. 292, Finley v. Lewis (Tex. Civ.), 39 8. 
W. 975, and McShan ▼. Myers, 1 Posey U. C. 105, all reaffirming 
rule; Gaither v. State, 21 Tex. Ap. 538, 1 8. W. 457, applying rule 
to criminal case; Stephenson v. Chappell, 12 Tex. Civ. 302, 36 8. W. 
485, special verdict which does not find all the facts in issue must 
be set aside. 

In Suit for Partition, former judgment by default against one 
defendant may be set aside and permission given to answer to the 
cross-bill therein. 

Approved in Dimmitt v. Bowen, 39 Tex. 402, judgment by default 
against one of several defendants may be set aside and permission 
given to answer. 

Miscellaneous. — Texas Land Co. v. Williams, 48 Tex. 606, cited 
arguendo. 

27 Tex. 407-422, LEWIS ▼. OASTLEMAK. 

To be Notice, a Volnntary Deed to slaves should be recorded in 
county wherein parties reside, where the possession is held by father 
for his daughter. 

Approved in Hoeser v. Kraeka, 29 Tex. 454, registration of volun- 
tary conveyance is tantamount to delivery. See note, 52 Am. Dec. 
114. 

Alternate Denials and recognitions by father of daughter's rights 
to property is not such repudiation as will support limitations. 

Approved in Moore v. Waco Building Assn., 19 Tex. Civ. 75, 45 S. 
W. 977, reaffirming rule. See note, 99 AA, Dec. 392, 395. 

Declarations Made Subeequently to plaintiff's purchase cannot have 
effect of estoppel in pais. 

Approved in Echols v. McKie^ 60 Tex. 43, and Shattuck ▼. Mc- 
Cartney, 1 Tex. Ap. Civ. 280, both reaffirming rule. 

Distinguished in Ward v. Carson Biver Wood Co., 13 Nev. 56, 
where declarations were not to parties who expended money thereon, 
and did not amount to sale or gift of the property. 

Creditor Whose Claim originated subsequently, and who also had 
notice, cannot attack a fraudulent conveyance. 

Approved in Lehmberg v. BIberstein, 51 Tex. 462, reaffirming 
rule. See note, 62 Am. Dec. 506. 



31 NOTES ON TEXAS REPORTS. 27 Tex. 423-431 

I^nmdnleiit Conveyances are only void as to the parties intended to 
be defrauded. 
See note, 14 Am. St. Rep. 751. 

27 Tex. 42&-428, WEBB ▼. SEIiLEBS. 

Probata Court lias Power to Sell Land in course of administration 
to pay debts due by the estate. 

Approved in f'itzwilliam v. -Campbell, 99 Fed. 37, probate court 
in 1836 had power to sell lands where required in course of ad- 
ministration. 

27 Tex. 428-431, HILL ▼. FAISOK. 

Under Certioraii from Justice, district court may try the case 
de novo. 

Approved in Texas etc. By. v. Cook, 2 Tex. Ap. Civ. 578, re- 
affirming rule. 

Distinguished in I>ryden v. Swinburn, 15 W. Va. 270, holding, in 
absence of statute, no authority to try de novo a case brought up 
by certiorari. 

If Petition for Certiorari be dismissed for insufficiency, the whole 
case embracing new action beyond justice's jurisdiction may, on 
motion, be continued on docket as original suit. 

Approved in Thomson v. Bishop, 29 Tex. 158, appearance by at- 
torney waives insufficiency of sheriff's return. 

Wbere Petition for Certiorari from justice connects suit before 
jnstice with some cause beyond his jurisdiction, district court may 
dismiss as to the latter and proceed to hear the former. 

Reaffirmed in Ray v. Whitaker (Tex. Civ.), 50 S. W. 498. 

Bat distinguished on rehearing in Ray v. Whitaker (Tex. Civ.), 
50 S. W. 499, on ground that question there presented was not pre- 
sented in this case. 

Pablication for Three Successive Weeks is not complied with by 
pablieation in three successive weekly issues, unless three weeks 
elapse between first publication and entry of judgment. 

Approved in Stephenson v. Texas etc. R. R., 42 Tex. 169, and 
Byrnes ▼. Sampson, 74 Tex. 84, 11 S. W. 1075, both reaffirming rule; 
Simpson v. Mitchell, 47 Tex. 577, applying rule to publication of 
citation for probate sale; Watkins v. Willis, 58 Tex. 523, applying 
rule to computation of limitation as to note; Phillips v. State, 23 
Tex. Ap. 305, 4 S. W. 894, applying rule to publication of result of 
local option election; State v. Cherry Co., 58 Neb. 739, 79 N. W. 827, 
applying rule to notice of election where statute read "for four 
weeks"; Quinn v. McDole, 28 R. I. 329, 67 Atl. 328, where mortgage 
provided for four weeks' notice by publication before foreclosure 
sale, publication every day for three weeks and the first two days 
of fourth week was not compliance with provision. See note, 49 
L. B. A. 219. 

Insufficiency of Service of Citation is good ground for certiorari. 

Approved in Preston v. Walsh, 10 Fed. 325, and Hunt v. Atchison 
ete. Ry. (Tex. Civ.), 28 S. W. 461, reaffirming rule. See note, 12 
Am. Dee. 532. 

Statutes Regulating General Subject of Kotico are construed lib- 
erally as to party affected as respects computation of time. 

Approved in Traylor v. Lide (Tex. Sup.), 7 S. W. 62, where service 
by publication was sustained on appeal. 



27 Tex. 432-442 NOTES ON TEXAS EEPORTS. 32 

27 Tez. 432-433, DABBY ▼. DAVIDSON. 

On Motion to DismiBS Oertiorari, district eourt may look to tran- 
script from justice court. 

Approved in Seeligson v. Wilson, 58 Tex. 370, Rea v. Raley (Tex. 
Civ.), 37 S. W. 170, and Owens v. Levy, 1 Tex. Ap. Civ. 177, all re- 
affirming rule. 

27 Tex. 434-438, BAILEY ▼. MllXa 

Debtor haa Bight to Prefer one or more of his creditors to the 
others. 

Approved in Schneider ▼. Bullard, 1 Tex. Ap. Civ. 677, mere fact 
of failing circumstances will not invalidate. See notes, 75 Am. Dec. 
818; 58 Am. St. Bep. 78. 

An Intent to Secure Some Benefit to the Maker will invalidate 
an assignment to preferred creditors. 

Approved in Lawrence v. Norton, 4 Woods, 409, 15 Fed. 856, and 
Willis V. Yates (Tex. Sup.), 12 8. W. 233, reaffirming rule. 

If Fraudulent Intent to Defraud Creditors be expressed in deed, 
court may declare it void. 

Approved in Peiser v. Peticolas, 50 Tex. 647, 32 Am. Rep. 624, 
Scott V. Alford, 53 Tex. 93, and Eicks v. Copeland, 53 Tex. 589, 
37 Am. Rep. 761, all reaffirming rule. 

Beveraal Lies for an Srroneons Instruction on a material point 
which may have influenced the jury. 

Approved in Beazley v. Denson, 40 Tex. 433, Hough ▼. Hill, 47 
Tex. 153, Hudson v. Morriss, 55 Tex. 607, Edwards v. Dickson, C6 
Tex. 616, 2 S. W. 719, Franklin v. Smith, 1 Posey U. C. 240, and 
Burchand v. Gann, 1 Posey U. C. 345, all reaffirming rule. 

Where FraAdulent Intent is not Shown on Face of debtor's deeds, 
it is a question for the jury. 

Approved in Stringfellow v. Thomson, 1 Tex. Ap. Civ. 565, reaf- 
firming rule. See note, 76 Am. Dec. 818. 

District Court's Power to Declare Void Deed of assignment for 
fraud on face must be cautiously exercised. 

See note, 26 L. R. A. 599. 

27 Tez. 438-439, THOMPSON ▼. CALLISOK. 

In Absence of Statement of Facts, exclusion of testimony will not 
be reviewed unless it appears from the record that it was material. 

Approved in Brown v. State, 38 Tex. 486, Lockett v. Schuren- 
berg, 60 Tex. 615, Endick v. Endick, 61 Tex. 560, Harris v. Spence, 
70 Tex. 620, 8 S. W. 315, Goodale v. Douglas, 5 Tex. Civ. 697, 24 
S. W. 967, and Litton y. Thompson, 2 Posey U. C. 579, all reaffirming 
rule. 

In Absence of Statement of Facts, refusal of new trial for newly 
discovered evidence will not be reviewed. 

Approved in Omaha etc. R. R. v. O'Donnell, 24 Neb. 759, 40 N. W. 
301, reaffirming rule. 

27 Tez. 440-442, LAIBD ▼. WINTEBS. 

One Deprived of Possession by Decree to which he was not party 
may recover same by forcible entry and detainer. 

Approved in Boles v. Walton, 32 Tex. Civ. 598, 74 S. W. 83, wife's 
heirs not bound by foreclosure of vendor*s lien against husband to 
which they were not parties. See notes, 121 Am. St. Bep. 381; 102 
Am. St. Rep. 749; 8 L. B. A. (n. a.) 430. 



33 NOTES ON TEXAS BEPOBTa 27 Tex. 443>455 

27 Tex. 44S-447, BHODB ▼. AUiET. 

PurchaMr Under Special Warranty may, in action for purchase 
money, show that fraud was practiced as to vendor's title. 

Approved in Davis v. Driseoll, 22 Tex. Civ. 16, 54 S. W. 44, reaf* 
ftrming rule; Parish v. White, 5 Tex. Civ. 74, 24 8. W. 574, reaffirm- 
ing rule where there was a vendor's lien on land sold; Ramirez v. 
Barton (Tex. Civ.), 41 S. W. 510, where vendor by false and fraudu- 
lent representations as to material matters induced vendee to ac- 
cept a warranty deed, vendee may recover without waiting for evic- 
tion. 

Acceptance of QnitcUlm or special warranty deed is presumptive 
that vendee acts on his own judgment. 

Approved in Hawkins v. Wells, 17 Tex. Civ. 365, 43 8. W. 819, 
Colonial etc. Mtg. Co. v. Tubbs (Tex. Civ.), 45 8. W. 624, re- 
affirming rule; Oury v. Saunders, 77 Tex. 281, 13 8. W. 1031, where 
there was no pretense of fraud or mistake; Columbia Ave. etc. Co. 
V. Roberts (Tex. Civ.), 41 8. W. 113, where negotiable note is 
indorsed in blank, it is presumed to have been done before maturity. 

Whore NegotlationB Proivldod for Perfect Title, but vendee was 
fraudulently induced to accept quitclaim deed, he may be relieved 
from the contract. 

Approved in Mclntyre v. De Long, 71 Tex. 89, 8 8. W. 623, and 
Savoy V. Brewton, 3 Tex. Civ. 339, 340, 22 8. W. 586, both reaffirm- 
ing rule. 

Vendee may Bely on Vendor's Statement that suit involving 
validity of title has been decided in vendor's favor. 

See note, 37 L. R. A. 604. 

4 

27 Tex. 450-465, 86 Am. Dec. 622, ALLISON ▼. SHILLINO. 

In Equitable Proceedings^ all persons whose interests are to be 
affected are necessary parties. 

Approved in Huffman v. Cartwright, 44 Tex. 301, Brackett v. 
Hinsdale, 2 Posey U. C. 470, Atchison etc. B. B. v. Benton, 42 
Kan. 706, 22 Pac. 701, Union etc. By. v. Barnard etc. Mfg. Co., 1 
Kan. Ap. 30, 41 Pac. 203, and Townsend v. Goodfellow, 40 Minn. 
316, 12 Am. St. Bep. 739, 41 N. W. 1057, 3 L. B. A. 739, all re- 
affirming rule; Milam v. Hill, 29 Tex. Civ. 577, 69 8. W. 450, com 
munity creditors not necessary parties to action for conversion of 
community estate. See notes, 98 Am. Dec. 737; 21 Am. St. Rep. 
149; 128 Am. St. Bep. 981. 

Bond of Hnsband to Convey His Homestead is not an unlawful 
undertaking, although it will not be enforced against wife's objection. 

Approved in Ley v. Hahn, 36 Tex. Civ. 210, 81 S. W. 355, Wright 
V. Hays, 34 Tex. 261, Astugueville v. Loustaunau, 61 Tex. 239, Marler 
V. Handy, 88 Tex. 427, 31 8. W. 638, Kilgore v. Graves, 2 Tex. Ap. 
Civ. 362, and Bamett v. Mendenhall, 42 Iowa, 302, all reaffirming 
rule; Dawson v. Holt, 44 Tex. 179, applying rule to surviving hus- 
band, although there be minor children; Stallings v. Hullman (Tex. 
Civ.), 33 8. W. 1034, rule applied to husband where deed by husband 
and wife of community homestead was void as to wife; Carter v. 
Connor, 60 Tex. 59, arguendo while holding judgment against surviv- 
ing husband in sui't upon community debt is binding on community 
property without joinder of wife's heirs therein; Meek v. Lange, 65 
Neb. 786, 91 N. W. 696, executory contract for sale of homestead to 

2 Tex. Notes— 3 



27 Tex. 465-460 NOTES ON TEXAS REPORTS. 34 

which wife not party is invalid and its nonperformance is not basia 
for damage for breach. See notes, 65 Am. Dec. 487; 76 Am. Dec. 80;. 
89 Am. Dec. 578. 

Wife, After Acceptance of a New Homestead, cannot object to con- 
veyance of the previous homestead. 

Approved in Cox v. Harvey, 1 Posey U. C. 273, reaffirming rule; 
Helgeby v. Dammen, 13 N. D. 174, 100 N. W. 247, wife voluntarily 
abandoning homestead with husband cannot thereafter claim land aa 
homestead, though ownership thereof is awarded to her absolutely by 
divorce decree. See notes, 60 Am. Dec. 610; 92 Am. Dec. 261; 92 
Am. Dec. 736; 96 Am. Dec. 415. 

27 Tex. 455-456, BALDESSOBE ▼. STEPHANES. 

BolingB on Aiyplicationa for Gontlnuances not based on statute will 
not be reviewed except for clear abuse of discretion. 

Approved in Jackson v. State, 4 Tex. Ap. 295, Zumwalt v. State, 
5 Tex. Ap. 525, and Myers v. State, 7 Tex. Ap. 643, all reaffirming 
rule; Gulf etc. Ry. v. Rowland (Tex. Civ.), 35 S. W. 32, where an 
application stating satisfactory reasons for not taking deposition of 
nonresident witness was* held no statutory application. 

Application for Continuance should state the facts showing whether 
due diligence has been used to obtain the absent witnesses. 

Approved in Texas etc. Ry. v. Hardin, 62 Tex. 370, and St. Louis 
etc. Ry. V. Woolum, 84 Tex. 573, 19 S. W. 783, both reaffirming rule; 
dissenting opinion in MiMouri etc. Ry. v. Hogan (Tex. Civ.), 30 S. 
W. 688, majority holding statements in application concerning dil- 
igence used sufficient. 

27 Tex. 457-460, 86 Am. Dec. 626, GOOKE v. BBEMOND. 

Acquisitions of Eitber Joint or Separate Labor of husband or wife 
become community property^ regardless of whether the conveyance 
be to either or both. 

Approved in Veramendi v. Hutchins, 48 Tex. 551, French v. Strum- 
berg, 52 Tex. 109, McDaniel v. Weiss, 53 Tex. 263, Wallace v. 
Campbell, 54 Tex. 89, Cline v. Upton, 56 Tex. 322, Edwards v. 
Brown, 68 Tex. 331, 4 S. W. 380, Stiles v. Japhet, 84 Tex. 95, 19 
S. W. 451, Kirby v. Moody, 84 Tex. 203, 19 S. W. 453, Oppenheimer 
V. Robinson, 87 Tex. 178, 27 S. W. 96, Sanburn v. Schuler, 3 Tex. 
Civ. 633, 22 S. W. 120, Sinsheimer v. Kahn, 6 Tex. Civ. 146, 24 S. 
W. 534, Collins v. Turner, 1 Tex. Ap. Civ. 257, Hamilton v. Flume, 
2 Posey U. C. 696, and Cooke v. Avery, 147 U. S. 395, 37 L. 216, 13 
Sup. Ct. Rep. 348, all reaffirming rule; Sanborn v. Schuler, 86 Tex. 117, 
23 S. W. 642, applying rule to purchase of community property from 
the widow where there were no surviving children. See notes, 67 Am. 
Dec. 629; 70 Am. Dec. 399; 87 Am. Dec. 107; 89 Am. Dec. 204; 90 
Am. Dec. 230; 99 Am. Dec. 365; 5 Am. St. Rep. 466; 8 Am. St. Rep. 
574; 13 Am. St. Rep. 100; 32 Am. St. Rep. 704; 35 Am. St. Rep. 
144; 126 Am. St. Rep. 103, 121. 

Distinguished in Montgomery v. Noyes, 73 Tex. 209, 11 S. W. 
139, where deed was jointly to husband and wife, but consideration 
recited was her separate locative interest in certain other lands; 
McCutchen v. Purinton, 84 Tex. 604, 19 S. W. 710, where deed recited 
that consideration was paid out of wife'fr separate estate and waa> 
conveyed to her as separate property. 



85 NOTES ON TEXAS BEPOBTS. 27 Tex. 461-471 

Parol is Admissible Between the parties, their privies, or parties 
with notice, to show that land conveyed to husband or wife, or 
both, by deed of purchase, is separate estate of wife. 

Approved in Wallace v. Campbell, 54 Tex. 89, reaffirming rule; 
Parker v. Fogarty, 4 Tex. Civ. 620, 23 S. W. 702, where purchaser 
at attachment s'ale had notice that property was separate estate of 
wife. See note, 36 Am. St. Rep. 182. 

Inspectton of a Deed charges only those facts which its eontents 
import. 

Approved in Kilgore ▼. Graves, 2 Tex. Ap. Civ. 360, Graham v. 
Hawkins, 1 Posey U. C. 519, and Neyland v. Texas etc. Lumber 
Co., 26 Tex. Civ. 421, 64 S. W. 698, all reaffirming rule; White v. Mc- 
Gregor, 92 Tex. 560, 50 S. W. 566, constructive notice of fraud will 
not be presumed where the recorded deeds do not show fraud on 
their face; Wintz v. Gordon, 2 Posey U. C. 215, applying rule to 
bona fido purchaser of negotiable note. See note, 96 Am. Dec. 425. 

Inspecticm of Deed to Married Woman, expressing valuable con- 
sideration, authorizes inference that land is community property. 

Approved in Kirk v. Houston etc. Navigation Co., 49 Tex. 215, 
Wallace v. Campbell, 54 Tex. 89, Kilgore v. Graves, 2 Tex. Ap. 
Civ. 359, King v. Holden (Tex. Sup.), 16 S. W. 899, New England 
etc. Trust Co. v. Harrell (Tex. Civ.), 39 S. W. 144, Keyser v. Clifton 
(Tex. Civ.), 50 S. W. 958, and Linn v. Willis, 1 Posey U. C. 165, all 
reaffirming rule. 

Parol is not Admissible to rebut presumption that land conveyed 
to husband or wife, or both, is community property as against in- 
nocent purchasers. 

Approved in Parker ▼. Coop, 60 Tex. 114, and Balgore v. Graves, 
2 Tex. Ap. Civ. 359, both reaffirming rule. See note, 34 Am. St. Bep. 
875. 

See valuable notes in relation of husband and wife in regard to- 
community and separate property in notes above, and also in fol- 
lowing: 91 Am. Dec. 97; 21 Am. St. Bep. 43; 27 Am. St. Rep. 454; 
36 Am. St. Bep. 1&2; 49 Am. St. Bep. 542; 126 Am. St. Bep. 124. 

27 Tex. 461-463, QENTBY ▼. aBIFFITH. 

Members of tbe I^egislatnre are not privileged against service of 
citation during sesnon of legislature. 

Approved in Bhodes v. Walsh, 55 Minn. 557, 57 N. W. 217, 23 L. 

B. A. 632, reaffirming rule; Berlet v. Weary, 67 Neb. 84, 108 Am. 
St. Bep. 616, 93 N. W. 241, 60 L. B. A. 609, and Worth v. Norton, 56 S. 

C. 66, 76 Am. St. Bep. 527, 33 S. E. 795, 45 L. B. A. 563, applying rule 
to member of Congress while on leave of absence; Miner v. Markham, 

28 Fed. 392, applying rule to member of Congress while on his way 
to attend session of Congress; Greenleaf v. People's Bank of Buffalo,. 
133 N. C. 300, 98 Am. St. Bep. 709, 45 S. E. 641, 63 L. B. A. 499^ 
nonresident officer and attorney of foreign corporation not privileged 
from service of summons while attending court. See notes, 61 Am. 
Dec. 151; 76 Am. St. Bep. 535; 23 L. B. A. 632. 

27 Tex. 463-471, McQXTEEN v. FULOHAM. 

Action Lies Against Both Husband and Wife for slanderous words 
of wife alone. 

Approved in Zeliff v. Jennings, 61 Tex. 470, reaffirming rule; 
Magerstadt y. Lambert, 39 Tex. Civ. 474, 87 8. W. 1069, applying 



27 Tex. 471-483 NOTES ON TEXAS REPOETS. 86 

rule to wife's trespass on realtj; Kellar ▼. James, 63 W. Ya. 143, 59 
S. E. 940, declaration against husband and wife charging slander by 
husband op one occasion and by wife on another, pursuant to con- 
spiracy to injure plaintiff, is demurrable for misjoinder of actions; 
Wirt y. Dinan, 44 Mo. Ap. 590, applying rule where wife stole cattle 
and sold them to plaintiff. See notes, 131 Am. St. Bep. 139; 30 L. 
R. A. 526, 527. 

It Seema That Wife's Separate Estate should be exhausted before 
levying on husband's estate to stitisfy judgment for wife's tort. 

Approved in Zeliff ▼. Jennings, 61 Tex. 472, requiring wife's 
separate estate to be exhausted before sale of husband's estate to 
satisfy such judgment; Taylor ▼. Stephen^', 17 Tex. Civ. 37, 42 S. 
W. 1049, holding judgment for tort against husband and wife may 
be levied on wife's separate estate. See note, 30 L. R. A. 530. 

Mere Imputation of Want of Oliastity to a female is not actionable 
without special damage. 

Approved in Ross v. Fitch, 58 Tex. 151, reaffirming rule. See note, 
72 Am. Dec. 434, note. 

Disapproved in Patterson ▼. Frazer (Tex. Civ.), 79 S. W. 1081, but 
recovery denied becauM language uttered through plaintiff's per- 
sistency. 

Distinguished in Hatcher ▼. Range, 98 Tex. 88, 89, 90, 81 S. W. 
291, holding rule changed by statute. 

It Seems Tbat Any Damage, however slight, will sustain an action 
for imputation of want of chastity. 

See note, 72 Am. Dec. 429. 

Dejection of Mind, loss of health, and consequent inability to 
attend to plaintiff's ordinary busineM, ia sufficient to sustain action 
for imputation of unchastity. 

Approved in Hitzfelder v. Koppelmann, 30 Tex. Civ. 164, 70 S. W. 
354, applying rule to slanderous charge of procuring abortion. See 
note, 72 Am. Dec. 428, 435. 

27 Tex. 471-483, BELT ▼. BAGUET. 

Mere Acceptance, Witboat Valuable Consideration, of fraudulent 
conveyance taints grantee with the fraud. 

Approved in King v. Russell, 40 Tex. 132, reaffirming rule. 

It is an Open Question whether a wife, under a fraudulent con- 
veyance from her husband, can acquire title by limitation against his 
creditors. 

Explained in B. C. Evans Co. ▼. Guipel (Tex. Civ.), 35 8. W. 942, 
holding such deed when recorded sufficient as a basis for three years' 
limitations. 

Vendee Under Fraudulent Conveyance cannot acquire rights ad- 
verse to vendor's creditor, so long as his debt remains unsatisfied, 
and his remedy for its collection is not lost by laches*. 

Approved in Rutherford v. Carr, 99 Tex. 104, 105, 87 S. W. 816, 
fraudulent conveyance void as against creditor and property may 
be sold on execution against debtor; A. Baldwin & Co. y. Williams, 
74 Ark. 316, 109 Am. St. Bep. 81, 86 S. W. 424, creditor's action to 
set aside fraudulent conveyance not barred where debtor remained 
in posses&non; Vodrie v. Tynan (Tex. Civ.), 57 S. W. 681, limitations 
as to creditor only begins from time of discovery of the fraud; 
New England etc. Trust Co. v. Avery (Tex. Civ.), 41 S. W. CT^, 



37 NOTES ON TEXAS BEP0BT8. 27 Tex. 471-483 

d«ed from insolvent husband to wife, reeiting eonsideration of one 
dollar and love and affection, puts intending purchaser on inquiry. 

Jiidgmmt will not be BeTened for not allowing party with burden 
of proof to open and close argument where no injury resultv there- 
from. 

Approved in McDonald ▼. Texas etc. B. B., 1 Posey U. 0. 193, Bobb 
T. Bobb (Tex. Civ.), 62 S. W. 127, Perkins v. Ouy, 55 Miss. 181, and 
Amoskeage Mfg. Co. v. Head, 59 N. H. 337, all reaffirming rule. 

Where Oontradictory Obarges are given upon a material issue, and 
especially where evidence is conflicting, and jury may have been 
misled, new trial will be granted. 

Approved in Houston etc. B. B. v. Kimbell (Tex. Civ.), 43 S. W. 
1051, reaffirmed in a perfK>nfd injury suit caused by obstructions on 
right of way. 

Mere Lien Witbout Biglit of Pos s efl rt on, or showing that sale will 
impair the lien, gives no right for intervention in trial of right of 
property under execution sale. 

Approved in Qarrity v. Thompson, 64 Tex. 599, Willis v. Thomp- 
son, 85 Tex. 307, 20 S. W. 157, Durham v. Flannagan, 2 Tex. Ap. 
Civ. 29, Dahoney v. Allison, 1 Posey U. C. 115, Holland v. Frock, 2 
Posey U. C. 568, Johnston v. Luling Mfg. Co. (Tex. Civ.), 24 8. W. 
998, and Ohio v. Byrne, 69 Ark. 295, 27 S. W. 247, all reaffirming 
rule; Fisher v. Bogarth, 2 Tex. Ap. Civ. 112, to authorize intervention, 
intervener's interest must be in subject matter of the suit. 

Distinguished in Blanton v. Langston, 60 Tex. 150, where original 
lienholder by subsequent agreement becomes absolute owner of the 
property. 

Gvantee ef Fraudulent CkmTeyuice may rebut presumption of his 
taint .by actual or presumptive evidence of payment of valuable con- 
sideration. 

Approved in Cox v. Miller, 54 Tex. 28, Tillman v. Heller, 78 Tex. 
601, 22 Am. St. Bep. 79, 14 S. W. 700, and Gwynn v. Butler, 17 Colo. 
118, 28 Pac. 467, all reaffirming rule. 

It Seems Tbat Befasal to Party with burden of proof of opening 
and closing the argument is reversible error where the facts of the 
case are contested. 

Approved in Bamsey v. Thomas, 14 Tex. Civ. 432, 38 S. W. 259, 
where defendant admitted facts set up in petition, but relied on 
special defense, it was reversible error to refuse defendant open- 
ing and do&ing where evidence was conflicting; Franklin v. Smith, 
1 Posey TJ. C. 240, judgment will not be reversed whenever there is 
an erroneous instruction on material point which may have misled 
the jury; Hillboldt v. Waugh (Tex. Civ.), 47 S. W. 830, reaffirming 
rule in trial of right of property. 

It Seems That Lienholder, if endangered by levy on his security, 
should invoke equitable power of court in original proceeding. 

Approved in Baysor v. Beid, 55 Tex. 271, Osborn v. Koenigheim, 
57 Tex. 95, Erwin v. Blanks, 60 Tex. 587, Parlin v. Harrell, 8 Tex. 
Civ. 373, 27 8. W. 1086, Bobinson v. Veal, 1 Tex. Ap. Civ. 131, and 
Brown v. Toung, 1 Tex. Ap. Civ. 714, all reaffirming rule; Mason v. 
Bumpass, 1 Tex. Ap. Civ. 781, no particular words are necessary to 
constitute an equitable mortgage. 



27 Tex. 491-503 NOTES ON TEXAS REPOKTS. 38 

27 Tez. 491-603, 86 Am. Dec. 643, WITHEBS ▼. PATTEB80N. 

Jurisdiction of a Oonit means authoritj of constitution and laws 
to determine causes and give effect to such determinations. 

Approved in Bobertfcion v. State, 109 Ind. 82, 10 N. E. 583, reaf- 
firming rule; Johnson v. McKinnon, 94 Fla. 231, 127 Am. St. Rep. 135, 
45 So. 26, 13 L. R. A. (n. s.) 874, deficiency decree rendered in action 
to enforce vendor's lien is void and collaterally attackable. See 
notes, 95 Am. Dec. 460, 97 Am. Dec. 381, and 6 Am. St. Rep. 79. 

Powers of County Courts regarding estates are limited by the 
statutes. 

Approved in Marks v. HUl, 46 Tex. 351, reaffirming rule. See note, 
8 Am. St. Rep. 553. 

In Absence of Proof to the contrary, but not against proof, actfs; 
of county court are presumed to be within its authority. 

Approved in Guilford v. Love, 49 Tex. 741, Martin v. Robinson, 
67 Tex. 374, 3 S. W. 553, Glassgow v. McKinnon, 79 Tex. 118, 14 
S. W. 1050, Fowler v. Simpson, 79 Tex. 617, 23 Am. St. Rep. 375, 
15 S. W. 684, Dickson v. Moore, 9 Tex. Civ. 519, 30 S. W. 79, Baker 
V. De Zavalla, 1 Posey XJ. C. 633, Anderson v. Lockhart, 2 Posey 
IT. C. 70, Jones v. Edwards, 78 Ky. 9, and Angell v. Angell, 14 R. I. 
544, all reaffirming rule. See notes, 97 Am. Dec. 464; 100 Am. Dec. 
734; 11 L. R. A. 158. 

Orders or Judgments of County Court rendered in course of ad- 
ministration on matters which it has the right to determine cannot 
be collaterally impeached. 

Approved in Black v. Epperson, 40 Tex. 179, Davis v. Touchstone, 
45 Tex. 496, Guilford v. Love, 49 Tex. 740, Gillenwaters v. Scott, 62 
Tex. 673, Perry v. Blakey, 5 Tex. Civ. 335, 23 S. W. 806, Dickson v. 
Moore, 9 Tex. Civ. 518, 30 S. W. 79, Strickland v. Sandmeyer, 21 
Tex. Civ. 353, 52 S. W. 88, and Williamson v, Wright, 1 Posey .U. C. 
718, all reaffirming rule; Mitchell v. Menley, 32 Tex. 464, applying 
rule to judgment of district court; Better v. Shottom, 27 Wis. 670, 
proceedings on administrator's sale are not reviewable after five 
years under the statute for irregularities. See notes, 89 Am. Dec. 
185; 89 Am. Dec. 366; 91 Am. Dec. 622; 92 Am. Dec. 374; 93 Am. 
Dec. 620; 94 Am. Dec. 770; 2 Am. St. Rep. 896; 21 L. R. A. 681. 

Orders or Judgments Concerning Matters, where circumstances do 
not exi&rt which would authorize the court to act, are null, and sub- 
ject to collateral attack. 

Approved in Hudson v. Jurnigan, 39 Tex. 587, Brockenborough 
V. Melton, 55 Tex. 506, Lindsay v. Jaffray, 55 Tex. 637, 638, Mc- 
Nally V. Haynes, 59 Tex. 586, Martin v. Robinson, 67 Tex. 376, 
3 S. W. 554, Templeton v. Palls Land etc. Co., 77 Tex. 58, 13 S. 
W. 966, Bordages v. Higgins, 1 Tex. Civ. 54, 20 S. W. 186, and 
Anderson v. Lockhart, 2 Posey U. C. 69, all reaffirming rule; Griffin 
V. Harris, 39 Tex. Civ. 590, 88 S. W. 495, order of county court 
selling homestead to pay debts, nullity; American Loan & Trust Co. 
V. Grand River Co., 159 Fed. 780, holding void 6l;atute escheating 
moneys deposited in federal court after ten years; Hamblin v. 
Wamecke, 31 Tex. 94, where record showed property sold to be the 
homestead; Trammel v. Philleo, 33 Tex. 410, order of probate court 
approving the sale made for Confederate money is void; Walker v. 
Myers, 36 Tex. 252, where record showed that court rendering the 
judgment had no jurisdiction; Forsythe v. Hammond, 142 Ind. 519, 
41 N. E. 951, 30 L. R. A. 576, applying rule to annexation of territory 



^ NOTES ON TEXAS REPORTS. 27 Tex. 503-506 

to a city; Halsey v. Jone« (Tex. Civ.), 25 S. W. 699, where upder 
icatute an order decreeing part of an estate to administrator in pay- 
ment of his elaim was held void. See notes, 23 Am. St. Rep. 114; 
33 Am, Dec. 239; 91 Am. Dec. 508; 91 Am. Dec. 622; 92 Am. Dec. 373; 
d4 Am. Dec. 636; 81 Am. St. Rep. 543, 559. 

County Court baa No Oeneral Power to Sell Lands of an estate 
except as expressly provided by statute. 

Approved in Merriweather v. Kennard, 41 Tex. 277, and Anderson 
y. Lockhard, 2 Posey U. C. 69, both reaffirming rule. See note, 79 
Am. St. Rep. 82. 

Where Original Grant of Letters of Administration iv void, that 
fact may be shown collaterally. 

Approved in Paul v. Willis, 69 Tex. 266, 7 S. W. 359, reaffirming 
rule; Raster v. Warren, 35 Tex. Civ. 651, 80 S. W. 1067, recital in 
unconditional land certificate that grantee in original certificate was 
dead, not conclusive; Kleinecke v. Woodward, 42 Tex. 314, the exist- 
ence of debts against the estate is not essential to jurisdiction of 
probate court; Jones Lumber Co. v. Rhoades, 17 Tex. Civ. 670, 41 S. 
W. 105$ holding judgment against defendant who was dead at time 
of institution of the suit void; Springer v. Shavender, 116 N. C. 16, 
47 Am. St. Rep. 792, 21 S. £. 399, 33 L. R. A. 772, administrator's 
sale, where owner was living at the time, is void; Springer v. Shav- 
ender, 118 N. C. 43, 54 Am. St. Rep. 711, 23 S. E. 976, 33 L. R. A. 
775, heirs cannot be estopped by probate sale on their ancestor's 
estate, made while he was living; Carr v. Brown, 20 R. L 221, 78 
Am. St. Bep. 861, 38 Atl. 11, 38 L. R. A. 294, administration of estate 
of living man violates constitutional provision regarding "due process 
of Uw"; Scott V. McNeal, 154 U. S. 43, 38 L. 900, 14 Sup. Ct. Rep. 
1111, administration on estate of a living man is a nullity; Hamilton 
V. Brown, 161 U. S. 267, 40 L. 697, 16 Sup. Ct. Rep. 589, proceedings 
in escheat against a living person are void. See notes, 73 Am. Dec. 
126; 21 L. R. A. 152. 

Power of County Conrt to Orant Letters of Administration depends 
upon facts existing at time of such granting, and if power to grant 
letters did not exist, all administration proceeding&^ are void. 

Approved in Baker v. De Zavalla, 1 Posey U. C. 632, reaffirming 
rale; Gnilford v. Love, 49 Tex. 748, it seems that mere purpose of 
completing a partition after lapse of twenty years is not suffi- 
cient excuse for reopening administration; Paul v. Willis, 69 Tex. 
265, 7 S. W. 359, an admini&rtration begun ten years after death of 
decedent and reopened seven years thereafter on false petition for 
purpose of enforcing claim' is void; Summerlin v. Rabb, 11 Tex. Civ. 
35, 31 8. W. 713, expense of issuance of land certificate twenty-five 
years after death of the soldier is not sufficient basis for adminibtra- 
tion. See notes, 91 Am. Dec. 347; 21 L. R. A. 147. 

Second Grant of Administration to another person after first ad- 
ministration closed is void. 

See note, 18 L. R. A. 244. 

• 

27 Tex. 503-^06, McDOKALD ▼. MOBGAK. 

Initials or Parts of Words are sufficient designation of official 
capacity of civil officers where context or nature of act clearly cor- 
roborates such designation. 

Approved in Russell v. Oliver, 78 Tex. 14, 14 S. W. 265, 9 L. R. A. 
349, Walthew t. MOby, 3 Tex. Ap. Civ. 150, and Summer v. Mitchell^ 



27 Tex. 507-615 NOTES ON TEXAS REPOBTS. 40 

«9 Fla. 210, 212, 30 Am. St. Rep. 117, 119, 10 So. 568, 569, 14 L. R. 
A. 815, all reaffirming rule; Blythe ▼. Houston, 46 Tex. 79, diserepancy 
between county named in caption and that in initial letters attached 
to notary's signature is immaterial; Talbert v. Dull, 70 Tex. 678, 8 S. 
W. 531, omiscAon of material word in certificate of acknowledgment 
will not vitiate where the mistake is apparent from context; Hambel 
V. Davis, 89 Tex. 258, 59 Am. St. Rep. 47, 34 S. W. 440, where justice 
of peace was shown bj initials; Boussard v. Dull, 3 Tex. Civ. 67, 21 
S. W. 940, where caption in connection with seal showed character 
of officer; Linskie v. Kerr (Tex. Civ.), 34 S. W. 766, where seal im- 
prefiSed on the paper showed name of notary's county; Glenn v. Ash- 
croft, 2 Posey TJ. C. 449, where notary public was designated by 
initials. See note, 14 L. R. A. 815. 

Omission of Initial Letter of Middle Name ia immaterial, as the 
law recognizes but one Christian name. 

Approved in Banks v. Lee, 73 Ga. 27, reaffirming rule. 

27 Tex. 507-515, SMITH v. BOQUET. 

Tbe Presumption in FaTor of Oommonity may, as between husband 
and wife or parties/ with notice, be rebutted by proof that the pur- 
chase was with separate funds. 

Approved in Fox v. Brady, 1 Tex. Civ. 594, 20 S. W. 1026, and Roe 
V. Dailey, 1 Posey U. C. 251, both reaffirming rule; Cox v. Miller. 54 
Tex. 28, property deeded to wife is community property aa against 
bona fide creditors. See notes, 70 Am. Dec. 399, and 86 Am. Dec 
638, 639. 

Husband may Make a Gift or grant of community or separate prop- 
erty directly to his wife. 

Approved in Hall v. Hall, 52 Tex. 299, 36 Am. Rep. 726, Richardson 
V. Hutchins, 68 Tex. 86, 3 S. W. 278, Evans v. Opperman, 76 Tex. 
299, 13 S. W. 313, Graham v. Stuve, 76 Tex. 534, 13 S. W. 381, 
Riley v. Wilwon, 86 Tex. 241, 24 S. W. 395, and Caffey v. Cooksey, 19 
Tex. Civ. 147, 47 S. W. 67, all reaffirming rule. See notes, 76 Am. 
Dec. 108; 86 Am. Dec. 640; 126 Am. St. Rep. 120; 69 L. R. A. 378. 

Where Conveyance ia to Wife, the presumption as between them- 
selves or those with notice is that it is separate property of wife, 
regardless of whether consideration was from husband's separate 
or community funds. 

Approved in French ▼. Strumberg, 52 Tex. 109, Hall v. Hall, 52 
Tex. 299, 36 Am. Rep. 726, McCormick v. McNeel, 53 Tex. 22, and 
Wallace v. Campbell, 54 Tex. 89, all reaffirming rule; Frank v. Frank 
(Tex. Civ.), 25 S. W. 819, in trespass to try title by divorced wife 
against her ex-husband. 

Where Judgment Debtor Fraudulently has agent buy his property 
at sheriff's bale, and title is taken in agent's name, equity will not 
enforce a resulting trust against the agent. 

Approved in Redmond ▼. Packenham, 66 Dl. 435, reaffirming rule. 

Delivery of Bvidence of Title to wife is not necessary, where wife 
has authorized husband to purchase for her through a trustee. 

Approved in Richardson v. Hutchins, 68 Tex. 87, 3 S. W. 278, re- 
affirming rule. 

Solvent Debtor may Purchase his own property on execution »ale 
if he does so openly and publicly. 

Approved in Grimes v. Hobson, 46 Tex. 420, codefendant may pur- 
chase at sheriff's sale. 



41 NOTES ON TEXAS BEPORTa 27 Tex. 515-535 

27 Tex. 515-622, BI7KNSL8 ▼. BUNNELS. 

Where Estate is Inaolvent, Widow and Obildren are entitled to 
homestead and statutory allowance free from creditors* lien^. 

Approved in Beeves v. Pettj, 44 Tex. 254, reaffirming rule. 

Testator cannot Derise Estate so as to preclude widow and chil- 
dren's statutory claim to homestead and substitute allowance. 

Approved in Hall ▼. Fields, 81 Tex. 560, 17 S. W. 85, and Holbrook 
V. Wightman, 31 Minn. 169, 17 N. W. 280, both reaffirming rule; 
Woolley V. Sullivan, 92 Tex. 36, 45 S. W. 381, minor children's rights 
to statutory allowance are not affected by devise of all the property 
to wife. 

Distinguished in McGowen v. Zimpelman, 53 Tex. 484, where 
decedent left no will, widow should claim reservation in probate 
eourt. 

Ooimty Oonrt cannot Set Aside exempted property or substituted 
allowance while estate is being administered by independent ex- 
ecutor. 

Approved in Holmes v. Johns, 56 Tex. 52, Boy v. Whitaker, 92 
Tex. 355, 48 S. W. 896, Haby v. Fuos (Tex. Civ.), 25 S. W. 1122, and 
Boy V. Whitaker (Tex. Civ.), 50 S. W. 493, all reaffirming rule. 

27 Tex. 52S-525, BOOK ▼. BEAU). 

Oenflrmation of Administrator's Sale vests title in purchaser, in- 
dependent of the execution of the deed by administrator. 

Approved in Erhart v. Bass, 54 Tex. 99, and Byan v. Ferguson, 3 
Wash. 368, 28 Pac. 914, both reaffirming rule. 

Mere Failure of Administrator to Execute Deed, where sale has 
been confirmed, is no defense to suit on purchase money notes. 

See note, 70 Am. Dec. 340. 

27 Tex. 626-528, JOHNSON ▼. BOBESON. 

Bond in Error Payable to Two Plalntiffe^ one of whom was dead 
at the filing, being a nullity, gave no jurisdiction on the writ of error. 

Approved in Hart v. MilU', 31 Tex. 313, reaffirming rule; Sum- 
merlin V. Beeves, 29 Tex. 88, applying rule where one of the plain- 
tiffs was not made party to writ of error, and was not cited; Poole 
V. Mueller (Tex. Civ.), 30 S. W. 952, jurisdiction of appellate court 
is determined solely by inspection of the record; Terry v. Schultz 
(Tex. Civ.), 38 S. W. 374, where error bond was payable to dead man, 
while reciting fact of his death, jurisdiction does not attach. 

27 Tex. 528^34, BUNNELS ▼. KOWNSLAB. 

Unless Heirs File Bond required in article 822, O. ft. W. Dig., 
for payment of debts, the estate must be settled by chief justice as 
in other cases. 

Approved in Wood v. Mistretta, 20 Tex. Civ. 240. 49 S. W. 238, 
reafftrming rule. 

27 Tex. 634-^35, McOAVOHET ▼. BENDY. 

Judgment will be Beversed where the charge, in connection with 
pleadings and verdict, might have misled jury, although there is no 
statement or bill of exceptions. 

Approved in Boss v. McGk>wen, 58 Tex. 607, Texas etc. By. v. 
McAllister, 59 Tex. 362, Devore v. Crowder, 66 Tex. 206, 18 S. W. 
501, Hill V. Gulf etc. By., 80 Tex. 436, 15 S. W. 1099, and Gibbs 
V. Mayes, 2 Posey U. C. 220, all reaffirming rule. 






27 Tex. 535-^54 NOTES ON TEXAS BEPORTS. 42 

27 Tez. 535^36, WALKEB ▼. HANE8. 

A Grant will not be Presomed from ten years' uninterrupted pos- 
session, nor from five years' adTerse possession under imperfect regis- 
tered deed, coupled with payment of taxes. 

Approved in Plummer v. Power, 29 Tex. 16, Forrest v. Woodall, 
33 Tex. 365, and Paschal y. Dangerfield, 37 Tex. 303, all reaffirming 
rule. 

27 Tox. 537-541, SAPP ▼. NEWSOM. 

Marriage by Bond in 1830, clearly showing a matrimonial inten- 
tion, will, on consideration of public policy, be sustained as valid. 

Approved in Lewis v. Ames, 44 Tex. 342, Cumby v. Henderson, 
6 Tex. Civ. 526, 25 S. W. 676, and Ingersol v, Mc Willie, 9 Tex. Civ. 
556, 30 S. W. 61, all reaffirming rule. 

Under Laws of Bepublic of Texas in 1837 a marriage by bond was 
null. 

Approved in Western Union Tel. Co. v. Proctor, 6 Tex. Civ. 303, 
25 S. W. 812, holding ''common-law marriage" consummated with- 
out license or ceremony invalid. 

Miscellaneous. — Lewis v. Ames, 44 Tex. 338, cited arguendo. 

27 Tex. 541^542, MOOBE ▼. LOWEBT. 

Mere Inadequacy of Price is not sufficient to set aside an execu- 
tion sale. 

Reaffirmed in Agricultural etc. Assn. v. Brewster, 51 Tex. 263. 
27 Tex. 647-551, 86 Am. Dec. 654, HADLEY ▼. UPSHAW. 

Under Act of February 5, 1858, interrogatories need not be crossed 
in order to give both parties right to read answers to them. 

Approved in Kruger v. Spachek, 22 Tex. Civ. 308, 54 S. W. 296, 
reaffirming rule. 

Landlord is Liable for loss of such articles as are ordinarily carried 
by travelers, unless loss is caused by guest's negligence. 

See notes, 89 Am. Dec. 628; 91 Am. Dec. 670; 96 Am. Dec. 331; 
98 Am. Dec. 562; 18 Am. Bep. 134; 8 L. B. A. 98. 

In Suit Against Landlord for Lost Property, question whether guest 
exercised ordinary care to prevent the loss is for jury. 

See notes, 7 Am. Dec. 455; 99 Am. St. Bep. 595, 

27 Tex. 561-552, MUOKLEBOT ▼. BETHANT. 

Under Special Non Est Factum Plea alleging alteration of instru- 
ment, burden is on party so pleading. 

Approved in Irvin v. Garner, 50 Tex. 52, and Kansas etc. Ins. 
Co. V. Coalson, 22 Tex. Civ. 67, 54 S. W. 389, both reaffirming rule; 
Cox V. Cock, 59 Tex. 524, applying rule where affidavit is filed that 
•leed under which party claims is forged. See note, 37 Am. Bep. 
.'564. 

27 Tex. 553-554, BABBINGEB ▼. STATE. 

Where Judgment Nisi and Scire Facias recited larger sum than 
bail bond, judgment should, on motion, be set aside, and scire facias 
quashed. 

Approved in Carr t. State, 9 Tex. Ap. 464, where judgment nisi 
was correct, but final judgment was against principal for two hun- 
dred and fifty dollars, and against sureties for same amount| ap- 
pellate court may reform the judgment. 



43 NOTES ON TEXAS REPORTS. 27 Tex. 555-571 

« 

Bail Bond not Conforming to Ord«r of committing magistrate is 
quashable. 

Approved in Holt t. State, 20 Tex. Ap. 274, where there was a 
variance as to date of the bail bond in evidence and that set forth 
in scire facias; Roberts v. State, 34 Kan. 153, 8 Pac. 247, where 
bond was in excess of amount directed by the court. 

Distinguished in Patillo v. State, 9 Tex. Ap. 459, where sheriff 
fixed amount of bail bond on surrender of priocipal at different 
amount than in first bond. 

Wliere Committing Magistrate directs bail bond for five hundred 
dollars, a bond in severalty for that amount is void. 

Approved in Neblett v. State, 6 Tex. Ap. 318, reaffirming rule; 
Turner v. State, 14 Tex. Ap. 170, bail bond conditioning defendant 
to "abide the final judgment" is null; Wright v. State, 22 Tex. Ap. 
673, 3 S. W. 347, where bail bond did not obligate principal to ap- 
pear in court, although binding surety for his appearance. 

Distinguished in Peters v. State, 10 Tex. Ap. 306, where bail bond 
was by agreement taken for less amount than that fixed by the 
justice; Fulton v. State, 14 Tex. Ap. 34, where liability of each 
surety was for full penalty, but were bound "jointly and severally." 

27 Tex. 555-^657, STONE ▼. TAYLOR. 

Miscellaneous. — Cunningham v. Perkins, 28 Tex. 489, miscited to 
point that writ of error loses its force when transcript is not filed 
within prescribed time. 

27 Tex. 558^66, BIBNCOnRT ▼. PARKER. 

Under Constitution of 1846, making offices of notary and county 
elerk incompatible, qualification of a notary as county clerk vacated 
office of notary. 

Approved in Cavazos y. Trevino, 35 Tex. 160, reaffirming rule; 
Roundtree v. Gilroy, 57 Tex. 179, holding special district judge 
competent, although member of legislature at time of appointment; 
State V. Brinkerhoff, 66 Tex. 47, 17 S. W. 110, city secretary who 
qualifies as recorder thereby vacates former office: Boesch v. Byron, 
37 Tex. Civ. 38, 83 S. W. 19, election of school trustees not void be- 
cause voters outside district participated; Brumby v. Boyd, 28 Tex. 
Civ. 171, 66 S. W. 878, officer illegally appointed to second office is 
mere intruder. See notes, 86 Am. St. Rep. 579; 5 L. B. A. 853. 

Distinguished in Deaver v. State, 27 Tex. Civ. 455, 66 S. W. 257, 
election for school trustees not void because election officers dis- 
qualified. 

Presnmption of a Orant cannot arise where all the circumstances 
of the case are consistent with its nonexistence. 

Approved in Plummer v. Power, 29 Tex. 16, and Paschal v. Dan- 
gerfield, 37 Tex. 303, both reaffirming rule. 

In Trespass to Try Title, discontinuance or abandonment by one 
plaintiff does affect rights of other plaintiff. 

Approved in Pilcher v. Kirk, 55 Tex. 213, reaffirming rule. 

In Trespass to Try Title, mesne profits are recoverable as part of 
plaintiiTs damages. 

Approved in Ammons v. Dwyer, 78 Tex. 652, 14 S. W. 1054, re- 
affirming rule. 

27 Tex. 566-571, BALDRIDOE v. COOK. 

Under Ezecntory Contract for Land, purchaser cannot be com- 
pelled to take a defective title. 



27 Tex. 572-586 NOTES ON TEXAS BEPOBTS. 41 

Approved in Frazier t. Boggs, 37 Fla. 813, 20 S. W. 247, eontract 
for land providing for good and sufficient deed calls for a perfect 
title. See note, 70 Am. Dec. 340. 

If Vendee at Time of Purchase knows of defect in title, he takes 
risk thereof, nnless particularly covenanted against. 

Approved in Webb v. Waters, 1 Tex. Ap. Civ. 789, payment of 
purchase note cannot be resisted where vendee took warranty deed, 
unless there has been an eviction or fraud on part of vendor. 

If Petitioner, After Diesolntion of Hia Injunction, desires his peti- 
tion to be continued over as an original suit, he should so request. 

Approved in Hale v. McComas, 59 Tex. 486, Washington Co. v. 
Schulz, 63 Tex. 34, and Love v. Powell, 67 Tex. 16, 17, 2 S. W. 
457, all reaffirming rule; Dixon ▼. Zadek, 59 Tex. 531, applying rule 
where demurrer to plaintiff's claim and affidavit as to goods seized 
un*der execution was sustained; Daugherty v. Gibbs, 2 Posey U. C. 
256, if answer denies equity of petition, petitioner on dissolution 
should ask for continuance as original suit. 

Miscellaneous. — Cook v. Balbridge, 39 Tex. 252, cited historically 
as showing disposition of case on former appeal. 

27 Tex. 57^-674, OABLETON ▼. BAIJ>WIN. 

After Execation of Deed, and parting of control of the property, 
assignor of deed for benefit of creditors cannot impeach the deed. 

Approved in Fox v. Willis, 60 Tex. 376, Hinson v. Walker, 65 
Tex. 106, Hale v. Hollon, 14 Tex. Civ. 102, 35 S. W. 846, and Boltz 
V. Engelke (Tex.), 63 S. W. 900, all reaffirming rule; D'Arrigo v. 
Texas etc. Co. (Tex. Civ.), 31 S. W. 714; declarations of vendor after 
sale and delivery are not admissible. 

27 Tez. 574-679, POBTIS v. ENNIS. 

Without Anthorlty to Do ao^ acceptance of draft by creditor's at- 
torney from judgment debtor is no satisfaction of the judgment. 

Approved in Anderson v. Boyd, 64 Tex. 109, reaffirming rule; 
Cook V. Greenberg (Tex. Civ.), 34 S. W. 689, attorney cannot com- 
promise client's claim without client's knowledge or consent. 

It Seems That the Entry of SherilTs Betum on clerk of court's 
execution docket is proper original evidence thereof. 

Approved in Schleicher v. Markward, 61 Tex. 102, reaffirming 
rule. 

SherilTa Betnm on Execution is admissible aa evidence that he 
received payment on the execution. 

See note, 129 Am. St. Bep. 851. 

27 TtaL 579-683, PATBIOK ▼. BOAOH. 

On Besciaaian of Land Oontract» vendee's measure of damages is 
for subsequent use and occupation of the premises. 

See notes, 12 Am. Dec. 312; 46 Am. Dec. 290. 

27 Tex. 684-686^ TUDOB ▼. WHITE. 

Third Parties are not Aifected by a secret dissolution of a part- 
nership. 

Approved in Long v. Gamett, 59 Tex. 232, Johns v. Brown, 1 Tex. 
Ap. Civ. 568, and Dunham y. Simon, 1 Posey U. C. 552, all reaffirm- 
ing rule. 

Distinguished in Blanks v. Halfin (Tex. Civ.), 30 S. W. 944, party, 
who never had dealings with a firm, should ascertain when buying 
note payable to it whether it is still existing. 



45 NOTES ON TEXAS BEPOBTS. 27 Tex. 580-608 

Whether a Party had Notiee of Dlasolntlon of a partnership at 
time of his transactiona ia for jury. 

Approved in Davis ▼. Willis, 47 Tex. 16 1, and Long ▼. Qamett, 
59 Tex. 233, both reaffirming rule. Bee note, 76 Am. Dec. 127. 

27 Tex. 586-588, NICHOLS ▼. BLAOZMOBE. 

Inatanee Where Delay of Forty-eeyen Daya was not laches in pre- 
senting a draft for acceptance, considering distance and mail facili- 
ties. 

Approved in Montelias v. Charles, 76 111. 808, where thirty-five 
days was not chargeable as laches. See note, 17 Am. Dec. 548. 

A Sight Draft, or so many days after sight, must be presented 
within a reasonable time. 

Approved in Singer v. Dickneite, 51 Mo. Ap. 248, reaffirming rule. 

27 Tex. 68&-603, PBIDGEN ▼. BUCHANAN. 

Miscellaneous. — Unger v. Anderson, 37 Tex. 550, cited to proposi- 
tion that in suit on note, where one defendant sets up his surety- 
ship, it is error to allow plaintiff to dismiss principal without aver- 
ring his death, insolvency, or situation beyond jurisdiction; Hooks 
V. Bramlette, 1 Tex. Ap. Civ. 501, cited as not supporting conten- 
tion set up by Unger y. Anderson, supra. 

27 Tex. 603-608, 86 Am. Dee. 667, ATBE8 ▼. DX7PBET. 

SherilTa Betom, Being Prima Fade Eyldenee of his action, can- 
not be varied, in absence of fraud or mistake, by parol evidence of 
sheriff. 

Approved in King v. Bussell, 40 Tex. 131, Flaniken t. Neal, 67 
Tex. 632, 4 8. W. 213, Schneider v. Ferguson, 77 Tex. 576, 14 S. W. 
155, Matthews v. Boydstem (Tex. Civ.), 31 8. W. 818, and Bowyer v. 
Knapp, 15 W. Ya. 291, all reaffirming rule. 

Distinguished in Hamblen v. Knight, 60 Tex. 40, where a fraudu- 
lent conspiracy was alleged between sheriff and judgment creditor; 
Kempner v. Jordan, 7 Tex. Civ. 279, 26 S. W. 871, where suit was 
between original parties to vacate and annul the judgment. 

Contradictory Statements of Wltnesa cannot be shown without 
first inquiring of witness relative to such statements. 

Approved in Stroud v. Oberthier, 35 Tex. 178, reaffirming rule. See 
note, 92 Am. Dec. 680. 

Impeachment of Witneee cannot extend to his general moral charac- 
ter. 

Approved in Kennedy v. Upshaw, 66 Tex. 452, 1 S. W. 312, and 
Fletcher v. State, 49 Ind. 133, 19 Am. Bep. 676, both reaffirming 
rule; Crawleigh v. Galveston etc. By. Co., 28 Tex. Civ. 264, 67 S. W. 
142, error to ask witness if he had been indicted for burglary. See 
notes, 40 Am. St. Bep. 791; 82 Am. St. Bep. 27, 29. 

Befusal of a Continuance will not be reviewed unless injury or in- 
justice has resulted therefrom. 

See notes, 95 Am. Dec. 379, and 96 Am. Dec. 766. 

Failure to Appraiee Iiand on day of levy is not such irregularity 
as avoids the sale. 

Approved in Holmes t. Buckner, 67 Tex. 110, 111, 2 S. W. 454, re- 
affirming rule; Oppenheimer v. Beed, 11 Tex. Civ. 369, 32 8. W. 326, 
where foreclosure decree directed sale of lots together while sheriff 
sold them separately. 



27 Tex. 593-e08 NOTES ON TEXAS REPORTS. 4e 

' Distinguished in Capital Bank v. Huntoon, 35 Kan. 592^ 11 Pae. 
377, where property selling at sheriff's sale for less than two-thirds 
of its appraised value was held void. 

Irregular Execution Sale may be set aside by motion to quash in 
court from which it issued, or by equitable proceedings for that pur- 
pose. 

Approved in Hansbro v. Blum, 3 Tex. Civ. Ill, 22 S. W. 271, re- 
affirming rule; Owen v. Navasota, 44 Tex. 522, improper execution 
sale may be set aside by motion in court from which execution is- 
sued, or by equitable proceeding for that purpose. See note, 33 Am. 
Dee. 699. 

Irregular Ezecntion Sale cannot be invalidated collaterally, even 
though execution plaintiff be a party to the suit. 

Approved in Bogges v. Howard, 40 Tex. 158, Smith v. Perkins^ 
81 Tex. 158, 26 Am. St. Rep. 799, 16 8. W. 807, Odum v. Menafee, 
11 Tex. Civ. 121, 33 S. W. 131, Fuller v. East Texas etc. Imp. Co. 
(Tex. Civ.), 23 S. W. 573, and Wright v. Dick, 116 Ind. 542, 19 N. 
E. 308, all reaffirming rule; Smith v. Olson, 23 Tex. Civ. 464, 56 S. 
W. 571, where sale was not advertised for time prescribed; Cravans 
V. Wilson, 35 Tex. 56, failure to issue execution because of the 
"stay laws" did not void the judgment; Laughter v. Seela, 59 Tex. 
179, where execution was issued in 1867 on judgment rendered in 
1863, the presumption is that it was legally issued, and sale will not 
be void. See note, 8 Am. St. Rep. 574. 

Distinguished in Moody v. Moeller, 72 Tex. 638, 13 Am. St. Rep. 
841, 10 S. W. 729, where it was sought to validate a void sale by 
the acquiescence of judgment debtor. 

An Equitable Bight as against plaintiff cannot be shown under 
plea of "not guilty" in trespass to try title, but may be shown by 
proper averments. 

Approved in Stroud v. Springfield, 28 Tex. 673, Catlin v. Bennatt, 
47 Tex. 172, Rippetoe v. Dwyer, 49 Tex. 507, Williams v. Barnett, 
52 Tex. 132, Fuller v. O'Neal, 69 Tex. 352, 5 Am. St. Rep. 62, 6 
S. W. 182, Mcxia v. Lewis, 12 Tex. Civ. 105, 34 S. W. 160, McCamp- 
bell V. Durst, 15 Tex. Civ. 531, 40 S. W. 319, Hanrick v. Gurley 
(Tex. Civ.), 48 S. W. 999, and Matthews v. Moses, 21 Tex. Civ. 496, 
52 S. W. 114, all reaffirming rule; Moore v. Snowball, 98 Tex. 2.5, 
107 Am. St. Rep. 596, 81 S. W. 9, 66 L. R. A. 745, one failing to 
set aside execution for want of citation and sale in bulk not pre- 
cluded from attacking it for irregularities causing inadequacy of 
price; Singletary v. Hill, 43 Tex. 590, applying nile to probate sale 
of homestead for partition; Morris v. Housley (Tex. Civ.), 34 S. W. 
660, in suit to recover land, defendant may set up affirmative plead- 
ings for equitable relief, together with reliance on the general issue. 
See note, 5 Am. St. Rep. 62. 

Distinguished in dissenting opinion in Moore v. Snowball, 98 Tex. 
28, 31, 32, 33, 81 S. W. 10, 12, 13, 66 L. R. A. 745, majority adhering 
to rule of cited case. 

Under Begistration Laws, bona fide purchaser at sheriff's sale, 
without notice, takes as against unrecorded conveyance made before 
rendition of his judgment. 

Approved in Senter v. Lambeth, 59 Tex. 262, McKarney v. Thorp, 
61 Tex. 651, Russell v. Nail, 2 Tex. Civ. 64, 23 S. W. 901, Hamil- 
ton-Brown Shoe Co. V. Lewis, 7 Tex. Civ. 513, 28 S. W. 103, West 
V. Loeb, 16 Tex. Civ. 401, 42 8. W. 613, Ranney v. Hogan, 1 Posey 



47 NOTES ON TEXAS BEPORTS. 27 Tex. 593-608 

U. C. 257, Blum ▼. Schwartz (Tex. Sup.), 20 S. W. 55, Russell v. 
Nail (Tex. Civ.), 23 S. W. 901, L. & H. Blum Land Co. v. Harbin 
(Tex. Civ.), 33 S. W. 153, and Stevenson v. Texas By. Co., 105 U. 
S. 708, 26 L. 1217, all reaffirming rule; Taylor v. Harrison, 47 Tex. 
460, 26 Am. Bep. 308, applying rule to purchaser from administra- 
tor; Contrell v. Dyer, 6 Tex. Civ. 554, 25 S. W. 1098, applying rule 
to purchaser from assignee for benefit of creditors; Wallace v. Crow 
(Tex. Sup.), 1 S. W. 374, arguendo in case where titles were ac- 
quired by quitclaim deed and by decree as substitute for lost unre- 
corded deed. See notes, 86 Am. Dec. 669; 89 Am. Dec. 520; 94 Am. 
Dec. 183; 95 Am. Dec. 349; 96 Am. Dec. 571; 3 Am. St. Rep. 230; 
7 Am. St. Rep. 618; 8 Am. St. Bep. 752; 16 Am. St. Rep. 387; 79 
Am. St. Bep. 948; 21 L. B. A. 34. 

Distinguished in HuflP v. Maroney, 23 Tex. Civ. 468, 56 S. W. 755, 
one purchasing for grossly inadequate price gets only title of de- 
fendant in execution. 

Subsequent PnrclLaser having notice of prior unrecorded deed is 
bound by it. 

Approved in Barrett t. Barrett, 31 Tex. 351, Orme v. Boberts, 33 
Tex. 773, Price v. Cole, 35 Tex. 471, Hale v. Hollon, 14 Tex. Civ. 
110, 35 S. W. 850, and Milby v. Began, 16 Tex. Civ. 355, 41 S. W. 
374, all reaffirming rule; Barnett v. Squyecs (Tex. .Civ.)^ 52 S. W. 
614, where creditor had actual notice of unrecorded mortgage. See 
notes, 95 Am. Dec. 748; 97 Am. Dec. 432. 

Under Begistration Lawsy entry of credit on execution of purchase 
price is not such valuable consideration as makes one a bona fide 
purchaser. 

Approved in Masterson v. Burnett, 27 Tex. Civ. 376, 66 S. W. 93, 
Farley v. McAllister, 39 Tex. 603, Grace v. Wade, 45 Tex. 528, Bailey 
V. Tindall, 59 Tex. 542, McKamey v. Thorp, 61 Tex. 652, First Nat. 
Bk. V. Western Mortgage etc. Co., 6 Tex. Civ. 61, 24 8. W. 692, and 
Brown Hardware Co. v. Marwitz, 10 Tex. Civ. 460, 32 S. W. 79, all 
reaffirming rule; Delespine v. Campbell, 52 Tex. 12, applying rule 
to mortgage foreclosure sale; Smith v. Westall, 76 Tex. 512, 13 S. 
W. 540, where consideration was the surrender to grantor of a claim 
against one to whom grantor was owing. See notes, 89 Am. Dec. 
561; 16 L. B. A. 672. 

Distinguished in McLane v. Sullivan, 29 Tex. Civ. 251, 69 S. W. 
194, surety purchasing at foreclosure sale land of one indebted to 
his principal may be bona fide purchaser; Blum v. Loggius, 53 Tex. 
137, where negotiable instruments were transferred for an antecedent 
debt. 

Impeaching Witness, Wliose Opinion as to reputation is based on 
individual opinion and feelings only, is incompetent. 

See note, 22 L. B. A. (n. s.) 650. 

Purchaser at Execution Sale who has had deed first recorded takes 
preference over prior unrecorded conveyance, in same manner as if 
purchasing directly from the debtor. 

Approved in Cordray v. Neuhaus, 25 Tex. Civ. 253, 61 S. W. 418, 
purchaser at execution sale against a city stands in same position as 
though he had bought directly from the city. 

The Begistration Law of 1840 affects only such creditors who have 
acquired some character of lien on the property. 

Approved in Wallace v. Campbell, 54 Tex. 91, McKeen v. Sul- 
tenfuss, 61 Tex. 328, Brown y. Chancellor, 61 Tex. 444, Keller v. 



27 Tex. 608-619 NOTES ON TEXAS BEPOBTS. 48 

Smallej, 63 Tex. 519, Tufts ▼. Blanton, 2 Tex. Ap. Civ. 228, Ward 
V. League (Tex. Civ.), 24 S. W. 988, and Kilgore v. Grave, 2 Tex. 
Ap. Civ. 358, all reaffirming rule. 

If ProcesB Under Which Sheriff BallB Land ia absolutely void, the 
purchaser acquires no title. 

See note, 65 Am. Dec. 95. 

Miscellaneous. — Hester v. Duprey, 40 Tex. 626, cited historically in 
showing status of the land title involved. 

27 Tex. 608-610, HILL ▼. STATE. 

A Becognizance Failing to State Distinctly the accusation against 
defendant is insufficient to support a judgment. 

Approved in McLaren v. State, 3 Tex. Ap. 682, reaffirming rule; 
Moore v. State, 34 Tex. 139, where offense charged in bond was 
"shooting with intent to kill and murder"; Bryant v. State (Tex. 
Cr.), 58 S. W. 1022, holding defect in recognizance cannot be sup- 
plied by parol. 

27 Tex. 610-611, BBOWN ▼. OUTHBIE. 

Delay of Twelye Tears in attempting to enforce an equitable right 
to property, jointly won in a horserace, makes it a stale demand. 

Approved in Beed v. West, 47 Tex. 248, where ten years was held 
sufficient to make title bond stale; Browning v. Pumphrey, 81 Tex. 
168, 16 S. W. 872, where holder of legal title was in unquestioned 
possession for thirty years; Clifton v. Armstrong (Tex. Civ.), 54 
8. W. 613, where heir delays for thirteen years after attaining his 
majority in asserting rights to community property, the claim is 
stale; I^'rench v. Koenig, 8 Tex. Civ. 345, 27 S. W. 1080, claim of 
community property made after lapse of thirty-five years is stale. 

27 Tex. 612-615, JOBDAK ▼. BOBSOK. 

Where Affidavit for first continuance shows facts constituting 
complete defense, and such knowledge to have been of recent origin 
and acted upon with diligence, continuance should be granted. 

See note, 74 Am. Dec. 145. 

Failure to File Affidavit impeaching recorded deed relieves party 
offering it from proving its execution as at common law. 

Approved in Cox y. Cock, 59 Tex. 624, and Jester v. Steiner, 86 
Tex. 418, 25 S. W. 412, both reaffirming rule; Hampshire v. Floyd, 
39 Tex. 105, holding under general denial profert of instrument 
must be made or its execution proven. 

Failure to File Affidavit Impeaching Deed does not preclude party 
so failing from disproving its execution or showing it to be a 
forgery. 

Beaffirmed in Salazar v. Ybarra (Tex. Civ.), 57 S. W. 303, and 
McGee v. Berrien (Tex. Civ.), 28 S. W. 463. 

27 Tex. 616-619, WINTEBS v. LAIBD. 

Certified Copies of Will and Inventory, taken from county court 
records, are admissible without being filed three days before trial. 

Approved in McDaniel v. Weiss, 53 Tex. 263, reaffirming rule. 

Under Plea of Five Years Limitations, possession under registered 
deed and payment of taxes must be concurrent and continuous dur- 
ing full term. 

Approved in Converse v. Binger, 6 Tex. Civ. 55, 24 S. W. 706, re- 
affirming rule; Snowden v. Bush, 69 Tex. 596, 6 S. W. 771, posses- 



49 NOTES ON TEXAS BEPOBTS. 27 Tex. 620-652 

sion and pajment of taxea must be concurrent. See note^ 83 Am. 
St. Bep. 719. 

27 Tex. 620--623» GOBDOK ▼. JONE& 

Exemplary Damages are Allowable where tbe conversion is at- 
tended with circumstances of fraud, malice, or wanton disregard of 
plaintiff's rights. 

Approved in Flanagan v. Nomack, 54 Tex. 50, San Antonio etc. 
B7. v. Kniffen, 4 Tex. Civ. 489, 23 8. W. 461, Stresau v. Pidelli, 
1 Tex. Ap. Civ. 488, and Pegram v. Stortz, 31 W. Va. 270, 6 S. E. 
512, all reaffirming rule; Flanary v. Wood, 32 Tex. Civ. 251, 73 S. 
W. 1073, exemplary damages must bear reasonable proportion to 
actual damages; G. H. etc. By. v. Dunlavy, 56 Tex. 261, where it 
was not shown that railroad company acted with wanton disregard 
of plaintiff's rights in handling her baggage; Buffalo etc. Canal Co. 
V. Milly, 63 Tex. 501, 51 Am. Bep.. 675, wrongful refusal to allonvi 
certain tug to pass through public ship channel, controlled by toll 
company, is basis for damages to ship which was to be hauled by 
said tug; Cone v. Lewis, 64 Tex. 332, malicious seizure under execu- 
tion of a "dray" wagon is basis for exemplary damages. 

Fraodalent Bapresentatlons made in obtaining possession of con- 
verted property are basis for exemplary damages. 

Distinguished in Houston etc. B. B. v. Shirley, 54 Tex. 142, where 
exemplary damages were claimed for an "intentional gross breach 
of a contract" without allegations of fraud. 

27 Tex. 627-635, STATE ▼. 8PABK8. 

Orders of Military Oommander are no justification for subordi- 
nates' illegal acts. 

See notes, 89 Am. Dec. 615; 106 Am. St. Bep. 727; 19 L. B. A. 
358. 

Miscellaneous. — Cited in Ex parte Bodriguez, 39 Tex. 748, as dis- 
cussing supreme court's jurisdiction in habeas corpus cases. 

27 Tex. 637-643^ WATSON ▼. HOPKINS. 

Power of Attorney/ not pertinent to any issue of the case, is prop- 
erly excluded. 

See note, 81 Am. Dec. 777. 

Although Payment of Taxes is Essential to five years' limitations, 
such payment may be shown by either direct or circumstantial evi- 
dence. 

Approved in Ochoa v. Miller, 59 Tex. 462, Allen v. Woodson, 60 
Tex. 652, and Snowden v. Bush, 69 Tex. 596, 6 S. W. 771, all re- 
affirming rule; Hodges v. Boss, 6 Tex. Civ. 440, 25 S. W. 976, proof 
that ''taxes were paid by Ann Boss and son" is sufficient, where pos- 
session was successively held by mother and son. 

Failnre of Becord to Show Authority of Attorney in fact, upon 
whose consent the judgment was rendered, is fatal on appeal. 

Approved in Swearingen v. Glenn, 34 Tex. 245, jurisdictional re- 
cital in judgment not supported by record is insufficient. 

Miscellaneous. — ^Miscited in Houston etc. B. B. y. McKinney, 55 
Tex. 186. 

27 Tex. 646-662, MOBBILL ▼. OBAHAM. 

An Attorney is Uable for Damages resulting from gross ignorance 
of ordinary legal principles. 

2 Tex. Notes — 1 



27 Tex. 653-^69 NOTES ON TEXAS REPORTS. 60 

Approved in Isham v. Parker, 3 Wash. 780, 29 Pae. 843, reaffirm- 
ing rule; Patterson v. Frazer (Tex. Civ.), 79 S. W. 1079, counsel 
liable for negligence in dismissal of suit when barred by limitations. 

An Attorney is not Liable for Error of judgment upon an unsettled 
and controverted question of law. 

Approved in Morgan v. Giddings (Tex. Sup.), 1 S. W. 370, attor- 
ney having reasonable doubts as to propriety or expediency of in- 
stituting certain legal proceedings is not liable for failure to do so. 

See notes, 34 Am. Dec. 90; 52 L. R. A. 888. 

Mere Oonfldence of Client in attorney not sufficient consideration 
for attorney's promise to pay debt in case he failed to collect it. 

See note, 83 Am. St. Bep. 183. 

27 Tez. 653-666^ BXJLLIOK V. CAMPBEUi. 

Statute Beqoirlng Presentation of ClaimB to administrator before 
suit does not apply to contract for conveyance of land title. 

Reaffirmed in Barlow ▼. Anglin (Tex. Civ.), 45 S. W. 857. Bee 
note, 70 Am. Dec. 322. 

Assignee, Under Verbal Assignment for valuable consideration of 
title bond for land, is entitled to maintain an equitable title thereon 
in his own name. 

Approved in G. H. etc. B. B. ▼. Freeman, 57 Tex. 157, reaffirming 
rule. 

Parol Assignifient of Title Bond for land upon valuable considera- 
tion is not within statute of frauds. 

Approved in Cox v. Bray, 28 Tex. 261, applying rule to sale of 
unlocated land certificate; Anderson ▼. Powers, 59 Tex. 214, verbal 
agreement for specified interest in lands in which legal title is at 
time in another is not within statute of frauds; Moore v. Tarrant 
Co. etc. Assn. (Tex. Civ.), 31 S. W. 710, where title bond provides 
that on payment of balance of purchase price it shall be a deed 
absolute, conveyance at direction of bond grantee to third party 
vests title in such third party. See notes, 62 Am. Dec. 487; 19 L. 
B. A. (n. 8.) 881. 

Distinguished in Sanborn v. Murphy, 5 Tex. Civ. 511, 25 S. W. 
460, parol rescission of contract to convey is within statute of 
frauds. 

27 Tex. 656-668, 8A8SEB ▼. DAVIS. 

Insanity, Under Article 1333, O. ft W. Dig., suspends the running 
of statute of limitations. 

Approved in Nebola v. Minnesota Iron Co., 102 Minn. 93, 112 N. 
W. 881, where personal injury caused by actionable negligence of 
another and resulting insanity occur on same day, disability of in- 
sanity deemed to exist at time of accrual of cause of action within 
meaning of statute of limitations. See note, 36 Am. Dec. 71« 

27 Tex. 669-669, BEOTON V. ALEZAKDEB. 

District Oourt has Jurisdiction to Set Aside Will and recover 
property alienated by ancestor of forced heirs in fraud of their 
rights. 

Approved in Blum v. Wettermark, 56 Tex. 89, district court may 
incidentally remove and appoint new assignee, in suit against as- 
signee for benefit of creditors charged with appropriating the as- 
sets; Fisher v. Wood, 65 Tex. 204, where there was a fraudulent 



51 NOTES ON TEXAS EEPOBTa 27 Tex. 670-678 

combination between executor and another; Hickman v. Stewart, 
G9 Tex. 259, 5 8. W. 835, district court has jurisdiction to set aside 
fraudulent deed bj legatee where amount in con trover sj is sufficient, 
although estate ia in course of administration; Crosson v. Dwyer, 
9 Tex. CiT. 487, 30 S. W. 931, district court has jurisdiction of 
action to construe a wilL See notes, 129 Am. St. Bep. 82; 15 L. B. 
A. (n. s.) 601. 

An Amended Petition which only supplies defective averments and 
amplifies facts constituting cause of action does not set up new 
cause of action. 

Approved in Smith ▼. Kinnej, 33 Tex. 287, Zeliff v. Jennings, 61 
Tex. 464, Bremond v. Johnson, 1 Tex. Ap. Civ. 326, Texas etc. By. 
V. Johnson (Tex. Civ.), 34 S. W. 188, and Bippetoe v. Dwyer, 1 
Posey T7. C. 506, all reaffirming rule. 

District Ooart in Equitable Proceeding to set aside will may, after 
reforming the probate thereof, direct further proceedings thereunder 
to take place in county court. 

Approved in Bogers v. Kennard, 54 Tex. 43, district court cannot 
order sale of land to pay debts of an estate on which administra- 
tion has been begun in probate court. 

Heirs may Sue to Becover Property alienated by ancestor in fraud 
of their rights where executor colludes with adverse claimant. 

See note, 22 L. B. A. (n. s.) 457. 

27 Tex. 670-675, HENDEB80K v. BTAN. 

Under the Statute of Wills, whatever estate testator possessed at 
his death passed according to terms of his will. 

Approved in Haley v. Gatewood, 74 Tex. 284, 12 S. W. 26, reaffirm- 
ing rule. 

If, by Abandonment of Her Husband, the wife of testator had 
forfeited her interest in the community, the right does not revive by 
testator's death. 

Criticised in Bouth v. Bouth, 57 Tex. 599, holding matrimonial 
relations in regard to community property, when once formed, con- 
tinue until terminated by death or decree. 

If a Wife has not Forfeited Her Bight to the community by aban- 
donment of her husband, she is entitled to one-half thereof after 
payment of the debts. 

Approved in separate opinion in Bouth v. Bouth, 57 Tex. 602, ma- 
jority holding legal wife entitled to whole of conununity property; 
Morgan v. Morgan, 1 Tex. Civ. 318, 21 S. W. 155, arguendo, while re- 
ferring to separate opinion in Bouth v. Bouth, 57 Tex. 602. 

27 Tez. 675-678, RIDDLE Y. BUSH. 

Title of Pnrcbaser at Sheriff's Sale is not affected by mere want of 
certainty in sheriff's entry or return. 

Approved in Whitney v. Krapf, 8 Tex. Civ. 306, 27 S. W. 844, re- 
affirming rule. 

Purchaser at Sheriff's Sale is only bound to show valid judgment, 
execution, and sheriff's deed. 

Approved in Owen v. Navasota, 44 Tex. 522, Cavanaugh v. Peter- 
son, 47 Tex. 205, Pitch v. Boyer, 51 Tex. 346, Bludworth v. Poole, 
21 Tex. Civ. 555, 53 S. W. 720, House v. Bobertson (Tex. Civ.), 34 
a W. 641, and Moore v. Frazer, 15 Or. 637, 16 Pac. 869, all reaffirm- 
ing rule; Donnebaum v. Tinsley, 54 Tez. 366, where sheriff failed 
to call on judgment debtor to point out property before levy; David- 



27 Tez. 678-692 NOTES ON TEXAS BEPOBTS. 68 

■OB T. Chandler, 27 Tex. Civ. 419, 65 S. W. 1080, where elerieal 
error in date of levy; Croft v. Colfax Electric Lig^ht etc. Co., 113 
Iowa, 460, 85 N. W. 763, sale under special execution in foreclosure 
of pledge of stock in possession of judgment creditor passes title 
as against debtor though no levy actually made. See notes, 33 Am. 
Dec. 699; 65 Am. Dec. 173; 21 L. B. A. 41. 

Fact That Ezecutioiui were returned without levy by plaintiff's or- 
der did not make judgment dormant where executions were regu- 
larly issued. 

Approved in Wren v. ]^eel, 64 Tex. 380, Adams v. Crosby, 84 Tex. 
101, 19 8. W. 355, and Pfeuffer v. Werner, 27 Tex. Civ. 290, 65 8. W. 
889, all reafftrming rule. 

27 Tez. 678-685, RAINES v. OALLOWAT. 

In Suit on Warranty of Title, defendant may show that plaintiff 
is in possession of land sold and that the deed misdescribes the land. 

Approved in Goff v. Jones, 70 Tex. 578, 8 Am. St. Bep. 623, 8 
S. W. 528, reaffirming rule. 

Measure of Damages on partial failure of warranty is actual value 
of failing parcels compared with balance, assuming agreed price as 
value of whole. 

Approved in Thomas v. Hammond, 47 Tex. 55, Grant v. Hill (Tex. 
Civ.), 30 S. W. 957, and Hynes v. Packard, 92 Tex. 49, 45 S. W. 
563, all reaffirming rule. See notes, 99 Am. Dec. 79, and 24 Aul St. 
Bep. 267. 

Special Verdict must find every fact necessary to sustain the judg- 
ment. 

Approved in Heflin y. Burns, 70 Tex. 355, 8 S. W. 51, Gaither v. 
State, 21 Tex. Ap. 538, 1 S. W. 457, and McShan y. Myers, 1 Posey 
U. C. 105, all reaffirming rule. 

27 Tez. 686-688, BCABSHALL y. BAILEY. 

Oonstable*8 Bond not Executed in strict conformity to directions 
of city council is good as a common-law bond. 

Approved in Hines v. Norris (Tex. Civ.), 81 S. W. 791, where bond 
executed to county judge instead of to governor; Dignan v. Shields, 
51 Tex. 327, holding voluntary bond of deputy collector of customs 
to be binding as common -law bond; Bose v. Winn, 51 Tex. 550, where 
formal conclusion in administrator's bond was omitted; Edmiston 
y. Concho Co., 21 Tex. Civ. 340, 51 S. W. 354, where county treas- 
urer's bond failed to obligate principal to render just and true ac- 
count to the commissioner's court. 

27 Tez. 68S-e92, UTTLE y. BIBDWELL. 

Quaere, Whether a Husband can by testamentary disposition pre- 
vent an appropriation of it being made by the chief justice as a 
statutory allowance to the widow and children. 

Cited in Hall v. FiMds, 81 Tex. 560, 17 S. W. 85, arguendo, while 
holding that a father cannot by a will affect homestead rights of his 
minor children. 

Party cannot Take Under a Will and also claim rights antagonistic 
to it. 

Approved in Mayo v. Tudor, 74 Tex. 473, 12 S. W. 118, reaffirming 
rule* 



53 NOTES ON TEXAS EEPOBTS. 27 Tex. 693-713 

Failure of Olilef Justice to make itatutory allowance in lieu of 
exempt property does not forfeit the widow's right to it if estate 
is solvent. 

Approved in Mabry ▼. Ward, 50 Tex. 411, reaffirming rule. 

Failuie to Designate Parties by name in entry of judgment is im- 
material where complete record leaves no doubt as to the parties. 

Approved in Dunlap v. Southerlin, 63 Tex. 42, Flack v. Andrews, 
86 Ala. 397, 5 So. 453, and Taylor v. Branham, 35 Fla. 305, 48 Am. 
St. Rep. 254, 17 So. 555, 28 L. B. A. 391, all reaffirming rule; Hodges 
v. Bobbins, 23 Tex. Civ. 59, 56 S. W. 566, looking to caption for 
names of parties to suit; Boyd v. Boane, 49 Ark. 414, 5 S. W. 708, 
service of process cannot be contradicted aliunde. 

Widow Receiving for Over Year benefit of support provided for 
in will cannot claim allowance in lieu of year's support. 

See note, 12 L. B. A. 229. 

27 Ter. 693-695, GBIIdES v. HAGOOD. 

Where Money is Advanced on Cotton received in store, the cotton 
is primary fund for discharge of the advancements. 

Approved in Nagle v. Moody, 53 Tex. 270, reaffirming rule. 

27 Tez. 695-699, KENDBIOK v. TAYLOB. 

Verbal Sale or Exchange of Personal Property between husband 
and wife is good as against husband's subsequent creditors. 

Approved in Pearce v. Jackson, 61 Tex. 646, reaffirming rule. 

Verbal Sales or Exchanges of Personalty between husband and 
wife should be subjected to most rigid scrutiny. 

Approved in Wellborn v. Odd Fellows' Building etc. Co., 56 Tex. 
505, reaffirming rule. 

Silence of Wife Beepectlng Her Title to personalty operates no 
forfeiture of her rights. 

Approved in Schneider v. Fowler, 1 Tex. Ap. Civ. 493, married 
woman is not required to give notice of her title to personal prop- 
erty. 

Where Interests of Parties to the appeal can be better promoted 
by BO doing, appellate court will remand case with instructions. 

Approved in Kuhlman v. Medlinka, 29 Tex. 393, reaffirming rule. 

27 Tex. 701-704, BENNETT v. STATE. 

If Defendant be not Indicted at Next Term of court after commit- 
ment, he is entitled to be discharged from custody. 

Approved in Ex parte Porter, 16 Tex. Ap. 323, reaffirming rule. 
See note, 56 L. B. A. 543. 

District Oonrt may Bequlre any member of bar present to act as 
district attorney pro tempore in absence of district attorney. 

Approved in Marnoch v. State, 7 Tex. Ap. 271, where attorney 
appointed by court to conduct prosecution at previous term was 
allowed to continue at succeeding term without new appointment 
therefor. 

Defendant not Indicted at next term after commitment, because 
district attorney not present and attorneys named had declined ap- 
pointment as district attorney pro tempore, must be discharged. 

See note, 56 L. B. A. 529. 

27 Tez. 705-713, STATE v. 8PABK8. 

By Production of Prisoner under writ of habeas corpus, original 
commitment is suspended until disposition of wrik 



27 Tex. 715-757 NOTES ON TEXAS EEPOETS. 64 

Approved in Ez parte Coopwood, 44 Tex. 469, reaffirming role. 

Miscellaneous. — Cited in Ex parte Eodriguez, 39 Tex. 748, as 

establishing limits of supreme court's jurisdiction in habeas corpus. 

27 Tex. 716-725, EZ PARTE MAYEB. 

I^glslatiTe Powers are Limited by power of construction of courts 
and by constitutional restrictions to be enforced by the courts. 

Approved in Ex parte Bodriguez, 39 Tex. 748, 772, reaffirming 
rule. 

LeglBlatore Does not Part with its power to exact future military 
service from a person by passage of a law exempting persons from 
such service who furnish substitutea. 

Approved in Dunlap v. State, 76 Ala. 466, applying rule to law 
repealing exception of certain persons from jury service. 

27 Tex. 726-729, STATE Y. MOBELAND. 

In an Indictment "the offense must be set forth in plain and in- 
telligible words." 

Approved in Floyd v. State (Tex. Or.), 68 S. W. 691, informa- 
tion for unlawful sale of estray need not negative owner's consent; 
Stringer v. State, 13 Tex. Ap. 522, omission of any ingredient in 
definition of the offense is fatal to indictment. 

27 Tez. 731-733, EX PABTE AINSWOBTH. 

Appeal Lies from Denial of Application for writ of habeas corpus, 
after full hearing, but not from a refusal to grant the writ. 

Approved in Thomas v. State, 40 Tex. 7, Ex parte Coopwood, 44 
Tex. 468, Ex parte Foster, 5 Tex. Ap. 645, and E^e parte Strong, 
34 Tex. Cr. 310, 30 S. W. 666, all reaffirming rule; Ex parte Blan- 
kenship (Tex. Cr.), 57 S. W. 647, appeal does not lie from refusal 
to grant writ of habeas corpus; remedy is by application to some 
other judge. 

After Indictment, application for writ of habeas corpus must be 
made to judge of district wherein indicted. 

Approved in Ex parte Lynn, 19 Tex. Ap. 122, reaffirming rule. 

Miscellaneous. — Ex parte Trader, 24 Tex. Ap. 397, 6 S. W. 535, 
miscited as to the point that the writ must be returnable in county 
where defendant stands indicted. 

27 Tez. 734-750, EX PABTE BLUMEB. 

An Act of Congress should never be construed to violate the law 
of nations if possible. 

Approved in Ex parte Bodriguez, 39 Tex. 748, reaffirming rule. 

Domicile of Birtli continues until a new one is acquired. 

Approved in Giddings v. Steele, 28 Tex. 751, 91 Am. Dec. 341, re- 
affirming rule. 

Declarations of a Party's Intentions in relation to his domicile are 
admissible as res gestae. 

Approved in Benavides v. Oussett, 8 Tex. Civ. 200, 28 8. W. 113, 
reaffirming rule. 

27 Tex. 760-757, SHAW v. STATE. 

Bales Begulating New Trials on ground of newly discovered eyi- 
dence are same in criminal as in civil cases. 



55 NOTES ON TEXAS EEPOETS. 27 Tex. 758-771 

Approved in Shnltz ▼. State, 5 Tez. Ap. 394, and White v. State, 
10 Tex. Ap. 172, 173, 174, both reaffirming rule. 

M«rtt Fact Tbat Juror Heard Evidenoe adduced in investigating 
court is BO disqualification for cause. 

Approved in Parchman v. State, 2 Tex. Ap. 244, reaffirming rule; 
Biennan v. State, 33 Tex. 268, juror's affidavit impeaching his quali- 
fications as juror is not allowable. 

OiuniilativB ETidence is ordinarily no ground for new trial. 

Approved in Eoontz v. State, 41 Tex. 572, reaffirming rule. 

Hew Trial is Discretionary in ease of doubt as to defendant's 
diHgence in procuring new evidence or as to its materiality. 

Approved in Eronson v. State, 2 Tex. Ap. 47, reaffirming rule; 
Gonzales v. Adoue (Tex. Civ.), 56 8. W. 550, new trial should be 
denied where affidavits in support of it on ground of newly dis- 
covered evidence show want of diligence. 

Verdict in Criminal Case will not be disturbed unless finding is 
plainly against the evidence. 

Apiff'oved in March v. State, 3 Tex. Ap. 336, and Ealtzeager v. 
State, 4 Tex. Ap. 534, both reaffirming rule. 

Opinion Disqualifying Juror for cause may be formed from hearsay. 

Approved in Eothschild v. State, 7 Tex. Ap. 544, reaffirming rule; 
Ooble V. State, 42 Tex. Or. 503, 60 S. W. 968, juror forming opinion 
from evidence in a companion case based on same transaction is in- 
competent. 

27 Tez. 758-771, JOHNSON v. STATE. 

Eeversal will not laie for Erroneotis Baling as to juror challenged 
for cause, unless defendant has exhausted his peremptory challenges 
before jury is obtained. 

Approved in Houston etc. Ey. v. Terrell, 69 Tex. 651, 7 S. W. 670, 
Brill V. State, 1 Tex. Ap. 578, Bejarano v. State, 6 Tex. Ap. 279, 
Bothschild v. State, 7 Tex. Ap. 543, Loggins v. State, 12 Tex. Ap. 
78, Territory of Arizona v. Shankland, 3 Ariz. 411, 77 Pac. 494, and 
State V. Fourchy, 51 La. Ann. 244, 25 So. 115, all reaffirming rule; 
Bowman v. State, 41 Tex. 419, where defendant challenged the 
array because they had been impaneled on jury in case of a co- 
defendant; Lester v. State, 2 Tex. Ap. 446, where defendant did not 
examine juror on his voir dire to ascertain the disqualification. 

Distinguished in Houston etc. By. v. Terrell, 69 Tex. 654, 7 S. W. 
672, where examination upon juror's voir dire was denied. 

Objectioiiis to Evidence not taken at trial are not reviewable. 

Approved in Smith v. State, 1 Tex. Ap. 135, Higginbotham v. 
State, 3 Tex. Ap. 450, Cooper v. State, 7 Tex. Ap. 198, Walker v. 
State, 7 Tex. Ap. 264, Gsithan v. State, 11 Tex. Ap. 560, and Will- 
iams V. State, 61 Wis. 292, 21 N. W. 61, all reaffirming rule. 

Depoflitioos are not Admissible in Criminal Cases except upon 
conditions prescribed in Code of Criminal Procedure. 

Approved in Adams v. State, 19 Tex. Ap. 261, Childers v. State, 
30 Tex. Ap. 195, 28 Am. St. Eep. 902, 16 8. W. 905, Cline v. State, 
36 Tex. Cr. 339, 343, 61 Am. St. Eep. 854, 859, 36 S. W. 1101, 1103, 
and Pearl v. State, 43 Tex. Cr. 196, 63 S. W. 1017, all reaffirming 
role. 

In Felony Case it is necessary to charge jury on every point from 
which legitimate deduction may be had from facts of case. 



27 Tex. 768-771 NOTES ON TEXAS REPORTS. 5$ 

Approved in Dawson v. State, 33 Tex. 504, Thomas ▼. State, 40 
Tex. 43, Bishop v. State, 43 Tex. 402, Jobe v. State, 1 Tex. Ap. 186, 
Kelly V. State, 1 Tex. Ap. 637, Davis v. State, 2 Tex. Ap. 603, Lister 
V. State, 3 Tex. Ap. 26, Sims v. State, 9 Tex. Ap. 598, and Evans v. 
State, 13 Tex. Ap. 242, all reaffirming rule; Marshall v. State, 3? 
Tex. 665, where court failed to instruct jury that they might com- 
mute punishment of murder in first degree to life imprisonment; 
Brown v. State, 38 Tex. 486, in homicide case it is practice to ex- 
amine general charge notwithstanding no exception was taken at 
trial; Williams v. State, 43 Tex. 385, where court failed to instruct 
as to distinction between murder and manslaughter in case of as- 
sault with intent to murder when evidence so demanded; Gesure v.. 
State, 1 Tex. Ap. 26, where court failed to instruct jury that they 
might substitute imprisonment in county jail instead of penitentiary; 
Wasson v. State, 3 Tex. Ap. 481, where charge as to self-defense was. 
omitted in homicide case where evidence demanded it; Heath v. 
State, 7 Tex. Ap. 466, omission to charge on issue that defendant pur- 
chased property alleged to be stolen is fatal where there is evidence 
to that effect; Davis v. Texas, 139 U. S. 655, 35 L. 302, 11 Sup. Ct. 
Rep. 676, where exception is taken at trial verdict will be set aside- 
for any error, but where not taken the error must be such as affects 
a substantial right of defendant. See note, 76 Am. Dec. 66. 

Mere Antecedent Tbreats, not accompanied by some demonstration 
indicative of their immediate execution, will not justify homicide or 
reduce it to manslaughter. 

Approved in Highsmith v. State, 41 Tex. Cr. 44, 51 S. W. 922, Bean 
V. Mathieu, 33 Tex. 597, Irwin v. State, 43 Tex. 240, Talbert v. State, 
8 Tex. Ap. 319, Sims v. State, 9 Tex. Ap. 595, Allen v. State, 17 Tex. 
Ap. 644, Howard v. State, 23 Tex. Ap. 278, 5 S. W. 235, McDade v. 
State, 27 Tex. Ap. 686, 11 Am. St. Rep. 220, 11 S. W. 674, Ex parte 
Taylor, 33 Tex. Cr. 537, 28 S. W. 958, Wright v. State, 40 Tex. Cr. 
450, 50 8. W. 941, People v. Macard, 73 Mich. 22, 40 N. W. 787, Terri- 
tory V. Campbell, 9 Mont. 21, 22 Pac. 122, and State v. Stewart, 9 
Nev. 131, all reaffirming rule. See note, 4 L. R. A. (n. s.) 155, 157, 
162. 

Tlireate of Deceased are Admissible in Homicide Case to show 
whether acts of deceased justified the homicide. 

Reaffirmed in Pridgen v. State, 31 Tex. 428. See note, 89 Am. St. 
Rep. 704. 

That Jury Misunderstood Charge of Court is no cause for new trial. 

Approved in Dancy ▼. State, 41 Tex. Cr. 299, 53 S. W. 637, and 
Bishop V. State, 43 Tex. 397, reaffirming rule. 

Affidavits of Jorors impeaching their verdict are not allowable ex- 
cept under imperative necessity for accomplishment of justice. 

Approved in Brennan v. State, 33 Tex. 268, Wills Point Bank v. 
Bates, 72 Tex. 142, 10 S. W. 351, Rockhold v. State, 16 Tex. Ap. 584, 
and Territory v. Taylor, 1 Dak. Tr. 463, all reaffirming rule; St. Louis 
etc. Ry. Co. v. Ricketts, 96 Tex. 71, 70 S. W. 317, rejecting affidavits 
of jurors that foreman volunteered personal knowledge bearing 'on 
case; Moore v. Missouri etc. Ry. Co., 30 Tex. Civ. 273, 69 S. W. 1001, 
rejecting affidavit of juror as to experiment during deliberations. See 
notes, 24 Am. Dec. 478, and 73 Am. Dec. 250. 

Distinguished in McCane v. State, 33 Tex. Cr. 481, 26 S. W. 1087, 
where seven jurors made affidavit that they did not believe defendant, 
was guilty when tboy returned the verdict. 



57 NOTES ON TEXAS REPORTS. 27 Tex. 758-771 

IfiMOndQCt of Jozy sufficient for new trial is to be determined bj 
application of the facts to result attained in verdict. 

Approved in Davis v. State, 28 Tex. Ap. 560, 13 S. W. 997, re- 
afirming rule; Wakefield v. State, 41 Tex. 557, where juror sepa- 
rated from other jurors during deliberation unaccompanied by officer; 
Austin v. State, 42 Tex. 359, statement of one juror to another as 
to character of aecused, while jury are deliberating over case, does 
Bot authorize new trial; Davis v. State, 3 Tex. Ap. 102, separation of 
jury does not per se vitiate their verdict even in capital case; Cox v. 
State, 7 Tex. Ap. 4, mere separation of the jury is insufficient; Jack 
V. State, 20 Tex. Ap. 660, statement by juror, after guilt had been 
decided and during deliberation of punishment, that he had been once 

robbed by a porter (defendant being a porter), and advising severe 

punishment, is not such misconduct. 

Miscellaneous. — ^Ward v. State, 19 Tex. Ap. 689, miscited as to point 

that it is error to allow jurors, who have disqualifying opinion, to sit, 

where defendant haa not exhausted his peremptory challenges. 



NOTES 

OK THE 



TEXAS EEPORTS. 



CASES IN 28 TEXAS. 



28 Tex. 1-15, WHITEHEAD v. FOLET. 

Allowance of Disclaimer as to part of land sued for, after parties 
are readj for trial, is not error. 

Approved in Trotti ▼. Hobby, 42 Tez. 353, on foreclosure allowing 
disclaimer as to lands not included; Obert v. Landa, 59 Tex. 477, 
allowing filing of exceptions to petition after defendant's announce- 
ment of readiness for trial; Foster v. Smith, 66 Tex. 681, 2 S. W. 745, 
Texas etc. By. v. Goldberg, 68 Tex. 687, 5 8. W. 825, Parker v. Spencer, 
61 Tez. 164, allowing amendment after announcement of readiness 
for trial; Badam ▼. Capital Microbe Destroyer Co., 81 Tex. 129, 26 
Am. St. Bep. 786, 16 8. W. 991, allowing amendment after case called 
for trial; Gamble v. Talbot, 2 Tex. Ap. Civ. 641, allowing amendment 
changing spelling of name after ease ready for trial; Alamo Fire Ins. 
Co. ▼. Shacklett (Tex. Civ.), 26 S. W. 631 (on rehearing), allowing 
amendment in suit on fire insurance policy after overruling of de- 
murrer; Greeley-Burnham Grocery Co. v. Carter (Tex. Civ.), 30 S. W. 
487, holding abuse of discretion not to allow withdrawal of announce- 
ment of ready for trial to amend petition so as to allow an instru- 
ment inadmissible because of variance. 

Distinguished in Krueger v. Klinger, 10 Tex. Civ. 579, 30 S. W. 
1088, disallowing amendment after trial commenced and evidence 
offered. 

Land CertiflcateB XAcUng Beqnired Oath were validated and be- 
came patentable under act of 1841. 

Approved in Spofford v. Bennett, 55 Tex. 303, holding location under 
such certificate sufficient for defense of limitation. 

Statute of IJmitatloxis of Three Years does not require all links in 
title to be in writing, but title must come from sovereignty of soil. 

Approved in Finch v. Trent, 3 Tex. Civ. 571, 22 S. W. 134, defend- 
ant in possession for three years under deed made jointly to A and 
B, but claiming whole title in right of A only, cannot as against B's 
vendee prescribe under eolor of title by parol proof that B held in 
trust for A; Burleson v. Burleson, 28 Tex. 417, applying three years' 
limitation where patent acquired after surviving husband's sale of 
community headrigbt certificate; Parker v. Bains, 59 Tex. 17, holding 

(59). 



28 Tex. 15-34 NOTES ON TEXAS BEPOETS. 60 

grant void on its face insufficient to sapport plea of limitation; 
League v. "Rogan, 59 Tex. 433, patent issued on forged certificate will 
support plea of limitation. 

Occupation Hj Trespasser claiming under survey of valid headrigbt 
certificate is disseizin of true owner to extent of boundaries of sur- 
vey. 

See note, 15 L. B. A. (n. s.) 1242. 

Defendant Pleading Limitation may avail himself of all possession 
of land held in privity with him. 

Approved in Brownson v. Scanlon, 50 Tex. 227, holding privity of 
titles must be shown to support limitation; Bushing v. Chandler, 2 
Posey U. C. 604, possession by tenant secures bar of limitation; Coyle 
V. Franklin, 54 Fed. 646, 21 L. B. A. 289, maintaining plea of limita- 
tion by lessor based partly on lessee's possession. 

Temporary Vacation of Premises while changing tenants does not 
stop running of statute of limitations. 

Approved in Elliott v. Mitchell, 47 Tex. 451, applying rule where 
premises unoccupied for one month; Tarlton v. Kirkpatrick, 1 Tex. 
Civ. 112, 21 S. W. 408, holding reasonable time allowable to take 
possession after sale. 

28 Tez. 15-19, BIEBBIWETHEB y. DIXOK. 

Proper Verdict Beached by Jury, under erroneous charge, will not 
be disturbed. 

Approved in Galveston v. Morton, 58 Tex. 416, H. E. & W. T. By. 
V. Hardy, 61 Tex. 232, H. & T. C. By. v. Marcelles, 59 Tex. 335, Gulf 
etc. By. V. Pettis, 69 Tex. 693, 7 S. W. 97, Hussey v. Moser, 70 Tex. 
45, 7 S. W. 607, Seley v. Texas etc. By., 2 Tex. Ap. Civ. 69, Dargan 
v. Pullman Palace Car Co., 2 Tex. Ap. Civ. 610, Muse v. Burns, 3 Tex. 
Ap. Civ. 100, Lewis v. Alexander (Tex. Civ.), 31 S. W. 418, Patterson 
V. Kellar (Tex. Civ.), 26 S. W. 301, all applying rule. 

28 Tez. 19-34, SAN AKTONIO Y. JONES. 

Legislature can Authorize Municipality to subscribe for railroad 
stock, and to borrow money and levy taxes to pay for it. 

Approved in San Antonio v. Gould, 34 Tex. 70, San Antonio v. 
Mehaffy, 96 U. S. 314, 24 L. 817, Talcott v. Township of Pine Grove, 
1 Flipp. 138, Fed. Cas. 13,735, San Antonio v. Lane, 32 Tex. 411, all 
awarding recovery on municipal railroad aid bonds; Picton v. County 
of Cass, 13 N. D. 250, 100 N. W. 714, upholding Laws 1903, p. 213, 
relating to enforcement of payment of unpaid taxes on realty sold 
for taxes and remaining unredeemed; Harcourt v. Good, 39 Tex. 475, 
refusing to enjoin collection of tax to redeem railroad aid bends; 
Leavenworth Co. v. Miller, 7 Kan. 510, 12 Am. Bep. 442, Stewart v. 
Supervisors of Polk Co., 30 Iowa, 30, 1 Am. Bep. 254, both holding 
statute authorizing municipal aid to railroads valid; dissenting opinion 
in Hanson v. Vernon, 27 Iowa, 82, majority holding legislature cannot 
authorize municipal aid to railroads. See notes, 59 Am. Dec. 783; 
14 L. B. A. 480. 

Distinguished in Giddings v. San Antonio, 47 Tex. 552, 26 Am. Bep. 
323, 324, holding railroad aid bonds invalid where city's authority not 
stated in title of act. 

Statute Whose Complete Execntlon depends on assent of some other 
body is not delegation of legislative power. 



61 NOTES ON TEXAS BEPOBTS. 2S Tex. 34-57 

Approved in Johnsoii v. Martin, 75 Tex. 39, 12 S. W. 323, holding 
law permitting electors to determine whether they will accept its 
provisions valid; Ex parte Mato, 19 Tex. Ap. 119, holding statute 
allowing judge to fix time IFor holding court valid; Staples v. Llano 
Co., 9 Tex. Civ. 206, 28 S. W. 571, holding statute authorizing commis- 
sioners' court to fix treasurer's commissions valid; Arnett v. State, 
168 Ind. 185, 80 N. E. 154, 8 L. B. A. (n. s.) 1192, upholding Burns' 
Stats. 1901, MC. 3717 et seq., authorizing governor to fix salaries of 
police commissioners and authorizing latter to fix salaries of police- 
men; Ex parte Massej, 49 Tex. Gr. 67, 122 Am. St. Bep. 784, 92 S. W. 
109O, arguendo. See note, 114 Am. St. Bep. 323. 

Miscellaneous. — Cited in Sweeney v. Webb, 33 Tex. Civ. 332, 76 S. 
W. 770, upholding local option law, though exempting regular physi- 
cians. 

28 Tex. 34-62, GOOD T. COOMB& 

Oonjiigal Survi'Tor may Sell Cknmnniiity Property to pay community 
debts, or may make bona fide sale of his portion. 

Approved in Walker v. Howard, 34 Tex. 511, upholding surviving 
husband's sale of community land; Wenar v. Stenzel, 48 Tex. 489, up- 
holding husband's sale to pay community debts; Carter v. Conner, 60 
Tex. 59, judgment against surviving husband for community debt 
binds community property; Walker v. Abercombie, 61 Tex. 74, main- 
taining action by surviving wife on community judgment; Ashe v. 
Yungst, 65 Tex. 636, survivor may sell community homestead to pay 
community debts; Marsalis v. Brown, 1 Tex. Ap. Civ. 209, and Senn 
V. Southern By., 124 Mo. 626, 28 S. W. 68, both arguendo. 

Distinguished in Clark v. Nolan,. 38 Tex. 420, Littleton v. Giddings, 
47 Tex. 113, Magee v. Bice, 37 Tex. 500, all holding husband's sale 
cannot deprive children of rights inherited from mother; Stone v. 
Ellis, 69 Tex. 327, 7 S. W. 352, surviving wife cannot contract to give 
part of land for location of land certificate. 

One Joint or Common Tenant cannot convey distinct portion of es- 
tate by metes and bounds, to prejudice of cotenants. 

Approved ifa Grifiin v. Wilson, 39 Tex. 219, purchaser from one 
party to partition suit cannot intervene therein; March v. Huyter, 
50 Tex. 251, holding deed of distinct portion by joint tenant valid 
against grantor; Saunders v. Silvey, 55 Tex. 48, holding conveyance 
by metes and bounds will not support limitation against owner of un- 
divided interest; Butherford v. Stamper, 60 Tex. 449, holding convey- 
ance by heirs of ancestor's undivided interest binds grantors; Boggess 
V. Meredith, 16 W. Va. 27, holding transferee of one cotenant cannot 
have portion assigned to him; Worthington v. Staunton, 16 W. Va. 
236, allotting portion conveyed to grantee on partition. See notes, 100 
Am. St. Bep. 690; 18 L. B. A. 278. 

Distinguished in Aycock v. Kimbrough, 61 Tex. 545, holding execu- 
tion sale of joint tenant's undivided interest valid. 

Where Execution Plaintiff is not a party, application to annul levy 
and sale will not be considered. 

Approved in Ewing v. Wilson, 63 Tex. 90, plaintiff and purchaser 
should be parties to suit to set aside execution sale, 

28 Tex. 6!^-57, POWELL V. HALEY. 

Deed Impeached as Forgery is properly excluded where no evidence 
is given to sustain. 



28 Tex. 57-59 NOTES ON TEXAS REPOBTS. 62 

Approved in Cox v. Cock, 59 Tex. 524, holding deed established 
where primarily proved and no rebutting testimony offered. 

If Party Oonceive That Law has not been fully given to jary, he 
should request additional charges. 

Approved in Wright v. Donnell, 34 Tex. 305, affirming where charges 
not objected to below; Neyland v. Bendy, 69 Tex. 713, 7 S. W. 500, 
Wisson V. Baird, 1 Tex. Ap. Civ. 389, Johns v. Brown, 1 Tex. Ap. Civ. 
569, Hawkins v. Cramer, 63 Tex. 102, all applying rule and affirming 
lower judgment; Banks v. Bodeheaver, 26 W. Va. 288, refusing to re- 
vise rulings not excepted to when made; dissenting opinion in Mutual 
Life Ins. Co. v. Hayward, 88 Tex. 327, 31 S. W. 511, majority dis- 
missing writ of error in case involving decision of facts; John v. 
Battle, 58 Tex. 597, arguendo. See note, 74 Am. Dec. 149. 

Distinguished in Beazley v. Denson, 40 Tex. 434, reversing for erron- 
eous verdict although charge not objected to. 

Where Evidence Is Conflicting, verdict must be sustained unless it 
clearly appear to be wrong. 

Approved in Faulkner v. Warren, 1 Tex. Ap. Civ. 363, Duffard v. 
Herbert, 2 Tex. Ap. Civ. 536, Adkinson v. (jarrett, 1 Tex. Ap. Civ. 
23, all sustaining verdict where evidence conflicting. See note, 46 
Am. Dec. 121. 

Whatever is Sofllcieiit to put a party upon inquiry is notice. 

Approved in Faulkner v. Warren, 1 Tex. Ap. Civ. 362, affirming rule 
in action on note; Lauve v. Balfour, 1 Tex. Ap. Civ. 397, holding dis- 
continuance of publication of offer of reward notice of withdrawal. 

New Trial will be Refused though one of jurors not sworn if affi- 
davit does not show counsel was ignorant of that fact. 

See note, 18 L. B. A. 475. 

28 Tex. 57-^9, LYELL v. aUADALOXTPE. 

To Confer Jurisdiction appellant must both give notice during term 
and file bond within twenty days after term. 

Approved in McLane v. Bussell, 29 Tex. 128, Freestone Co. v. Bragg, 
28 Tex. 91, both dismissing appeal where no bond filed; Halloran v. 
T. & N. O. B. B., 40 Tex. 471, dismissing appeal where bond not filed 
in time; Smith v. Parks, 55 Tex. 85, dismissing appeal where bond 
made payable to deceased plaintiff; Bonner v. Ferrell, 3 Tex. Civ. 
445, 22 S. W. 418, dismissing appeal where notice not given as re- 
quired by statute; Luckey v. Warren (Tex. Civ.), 23 S. W. 617, notice 
of appeal must comply with article 1387, Bevised Statutes; Wichita 
Val. By. V. Peery (Tex. Civ.), 27 8. W. 751, giving notice of appeal 
in trial court is necessary; Sanger v. Burke (Tex. Civ.), 44 S. W. 871 
(on rehearing), appeal bond must be filed within prescribed time. 

Distinguished in Scranton v. Bell, 35 Tex. 414, refusing to dismiss 
appeal on appellant's motion for insufficiency of bond. 

Consent cannot Confer Jurisdiction, and appeal will be dismissed 
where bond was not filed within statutory time. 

Approved in Smith v. Parks, 55 Tex. 86, dismissing appeal where 
bond is defective; Young v. Bussell, 60 Tex. 687, dismissing appeal 
where bond not payable to parties entitled; H. & T. C. B. B. v. 
McGlasson, 1 Tex. Ap. Civ. 631, dismissing appeal where jurisdictional 
amount not shown; Haney v. Milliken, 2 Tex. Ap. Civ. 172, parties* 
agreement that house is realty cannot confer jurisdiction; Bauer v. 
Adkins (Tex. Civ.), 28 S. W. 1011, dismissing appeal in garnishment 
where bond waa payable to plaintiff alone; McMahon v. City Bank 



63 NOTES ON TEXAS REPORTS. 28 Tex. 59-84 

(Tex. Civ.), 61 S. W. 953, diBmisung appeal where bond wai filed too 
late, although dated within the ten days by consent. 

28 Tex. 69-«l, VAN HOOK y. WALTON. 

Doliyery of Deed maj be established by circumstances as well as by 
direct proof. 

Approved in Hubbard v. Cox, 76 Tex. 242, 13 S. W. 170, McLaughlin 
V. McManigle, 63 Tex. 557, both applying rule and holding no delivery. 

Actual Notice to Creditor or his attorney of assignment preferring 
•ther creditors is equivalent to registration. 

Approved in Riordan v. Britton, 69 Tex. 204, 5 Am. St. Rep. 39, 7 
S. W. 53, levy on undescribed lots has priority over levy by persons 
with knowledge; Taylor v. Evans (Tex. Civ.), 29 S. W. 174, com- 
munication by client to attorney of intention to violate insolvency 
law is notice to client who very soon thereafter employs the attorney 
to secure the preference intimated. 

PossesBioxi by Assignor of Property assigned for benefit of creditors 
is prima facie evidence of fraud. 

Approved in King v. Russell, 40 Tex. 132, circumstances to show 
conveyance fraudulent should be submitted to jury; Eicks v. Cope- 
land, 53 Tex. 589, 37 Am. Rep. 761, holding failure to assign all prop- 
erty not fraud per se; Edwards v. Dickson, 66 Tex. 616, 2 S. W. 719, 
holding bona fide transfer of property to creditor valid; Cleveland v. 
Empire Mills, 6 Tex. Civ. 484, 25 S. W. 1057, applying rule and hold- 
ing assignment valid. See notes, 75 Am. Dec. 818, 819; 58 Am. St. 
Rep. 95. 

Employment by Trustee of Assignor as clerk is not sufficient to 
prove fraud in assignment for creditors. 

Approved in Peters Saddlery etc. Co. v. Schoelkoff, 71 Tex. 422, 9 
S. W. 339, applying rule where debtor sells to creditor and is employed 
as clerk. 

Deed of Trust for Benefit of Creditors need not set forth exact 
amount of each debt secured. 

Approved in Nave v. Britton, 61 Tex. 574, upholding assignment 
although amount of indebtedness not stated; Kellogg v. Muller, 68 
Tex. 185, 4 S. W. 363, holding assignment providing for some un- 
named creditors valid. 

Failing Debtor may Assign Property for benefit of creditors, giving 
preference, but assignment must be bona fide and not prohibited by 
law. 

Approved in Dwight v. Overton, 35 Tex. 412, holding assignment 
for benefit of creditors not revoked by grantor's debt; McCormack v. 
Bignall, 1 Tex. Ap. Civ. 418, holding assignment providing for con- 
tinuance of business and subject to defeat by assignor void. See 
note, 26 Am. Dec. 584. 

28 Tez. 81-84, BTJBLE80N T. HANCOOE. 

Bejected Testimony should be presented by bill of exceptions, other- 
wise court will not consider its exclusion. 

Approved in Pennington v. McQueen (Tex. Sup.), 3 S. W. 316, re- 
affirming rule; Hereford Cattle Co. v. Powell, 13 Tex. Civ. 503, 36 
S. W. 1037, Moss V. Cameron, 66 Tex. 413, 1 S. W. 177, both refusing 
to revise exclusion of testimony not set forth. 



28 Tex. 85-101 NOTES ON TEXAS BEPOBTS. 64 

28 Tez. 85-90, OOOK T. KNOTT. 

To Complete Defense of five years' limitation defendant must bave 
been in continuous adverse possession claiming under registered deeds. 

Approved in Howard v. McKenzie, 54 Tex. 187, possession of vendee 
under executory contract may become adverse to sustain limitation; 
Texas etc. By. ▼. Speights, 94 Tex. 356, 60 S. W. 661, oral purchase and 
payment thereunder, although afterward rescinded, breaks the con- 
tinuity of the adverse possession. See note, 58 Am. Dec. 144. 

Business of Deputy Clerk of county court is to perform duties of 
principal, one of which is taking proof of instruments for record in 
county. 

Approved in Wert v. Schneider, 64 Tex. 330, applying rule and 
holding assignments so acknowledged valid; Ansaldua v. Schwing, 81 
Tex. 201, 16 S. W. 990, 13 L. B. A. 50, applying rule and holding 
record valid; Herndon v. Beed, 82 Tex. 651, 18 S. W. 666, holding 
certificate of acknowledgment by deputy in his own name valid; 
Summer v. Mitchell, 29 Fla. 219, 30 Am. St. Bep. 123, 10 So. 570, hold- 
ing acknowledgment before deputy in another state valid; Ballard v. 
Orr, 105 Ga. 197, 31 S. E. 556, admitting mortgage attested by deputy 
clerk. See notes, 41 Am. Dec. 169; 60 Am. Dec. 176; 80 Am. Dec. 
649; 106 Am. St. Bep. 826. 

28 Tex. 91, FREESTONE C0T7NT7 y. BBAOG. 

Supreme Court has No Jurisdiction of appeal where no bond was 
filed. 

Approved in Smith y. Parks, 55 Tex. 85, dismissing appeal where 
bond was payable to deceased plaintiff. 

28 Tez. 91-97, YEABY v. CUIOCINS. 

Suit for Specific Performance by vendee who has paid under bond 
for title is not barred until ten years after vendor indicates intention 
to refuse performance. 

Approved in Bucker ▼. Dailey, 66 Tex. 286, 1 S. W. 316, Beed v. 
West, 47 Tez. 248, both granting specific performance within ten 
years; Wilson v. Simpson, 68 Tex. 310, 4 S. W. 841, applying rule in 
suit for specific performance; Meyer v. Andrews, 70 Tex. 329, 7 S. W. 
815, refusing specific performance after twelve years; Wilson v. Simp- 
son, 80 Tex. 287, 16 S. W. 43, awarding land to executory yendee 
where demand not stale. See note, 58 Am. Dec. 145. 

28 Tez. 97-101, DODD T. ABNOLD. 

It is Error to Charge on supposed state of facts, not alleged or 
proved. 

Approved in Northern Texas Traction Co. v. Jamison, 38 Tex. Ciy. 
57, 85 S. W. 305, and Galveston etc. By. v. Silegman (Tex. Civ.), 23 
S. W. 300, reaffirming rule; Claflin v. Harrington, 23 Tex. Civ. 348, 
56 S. W. 372, error to submit issue of fraud when not alleged in plead- 
ings; Hosack V. Darman, 44 Tex. 157, holding charge herein proper; 
Seligson v. Wilson, 1 Tex. Ap. Civ. 510, Floyd v. Bust, 58 Tex. 506, 
both applying rule. 

GN>od Faith of Purchaser cannot invest him with title to property, 
if his vendor had no title. 

Approved in Benick v. Dawson, 55 Tex. 108, purchaser at bank- 
rupt sale takes property charged with equities against bankrupt; 
Home V. Chatham, 64 Tex. 39, representations of vendor cannot pass 



65. NOTES ON TEXAS REPORTS. 28 Tex. 101-113 

interest which he had previoasly disposed of; Stott v. Scott, 68 Tex. 
306, 4 S. W. 496, stable-keeper has no lien on horse placed there by 
person not owner; Hopkins v. Partridge, 71 Tex. 609, 10 S. W. 216, 
good faith in levying attachment confers no title where defendant 
previously sold property; New York etc. Land Co. v. Hyland, 8 Tex. 
Civ. 612, 28 S. W. 210, purchaser of unlocated land certificate acquires 
only vendor's interest; Torrey v. McClellan, 17 Tex. Civ. 374, 43 S. 
W. 66, hotel-keeper has no lien on drummer's samples belonging to 
employer; Russell v. Oppenh'eimer, 1 Tex. Ap. Civ. 110, sale of per- 
sonalty without owner's authority does not devest title; Mayes v. 
Bruton, 1 Tex. Ap. Civ. 384, holding sale of mules by unauthorized 
employee void; Schneider v. Fowler, 1 Tex. Ap. Civ. 493, holding 
wife's personalty not subject to levy for husband's debt; Gammel v. 
Couts, 1 Tex. A p. Civ. 669, vendor of cattle acquiring possession fraud- 
ulently conveys no title; Wilderman v. Harrington, 2 Tex. Ap. Civ. 
724y owner can recover watch pawned by borrower from him; Crowd us 
V. Sanders, 3 Tex. Ap. Civ. 561, purchaser from vendee under execu- 
tory sale acquires no title; Martin v. Armstrong (Tex. Civ.), 62 8. W. 
84, where loaner of moving-picture machine mortgaged it without 
authority to secure board bill. See note, 25 Am. Dec. 606. 

Distinguished in Wintz v. Gordon, 2 Posey U. C. 214, no equity can 
be set up against bona fide purchaser of negotiable note. 

28 Tex. 101-105, CATC y. PHILIPS. 

To Suit on Note defendant can set off certain sum received by plain- 
tiff on wrongful sale of defendant's land. 

Distinguished in Riddle v. McKinney, 67 Tex. 32, 2 S. W. 749, de- 
fendant cannot counterclaim to note unliquidated damages for sale 
of land; Andrews- v. Whitehead (Tex. Civ.), 60. S. W. 801, allowing, 
in suit by brokers for commissions, counterclaim for difference be- 
tween amount which other notes sold for and amount which brokers 
represented them to have been sold for. 

28 Tex. 105-113, ELLIOT y. MITOHELL. 

The Northern Line of Burnet's Oolcmy should be run westerly so as 
to strike the northern branch of Navasoto creek. 

Approved in Elliott v. Mitchell, 47 Tex. 447, applying rule and hold- 
ing land within Burnet's colony. 

If Commissioner and Colonist reasonably believed that land located 
was within colony, colonist's title is valid, although not within 
colonial limits. 

Approved in Ford v. Wright, 2 Posey U. C. 235, upholding sheriff's 
sale of land subsequently ascertained to be in another county; Sheir- 
bum V. Hunter, 3 Woods, 285, Fed. Cas. 12,744, applying rule; White 
v. Blum, 79 Fed. 274, holding excessive grant not objected to by state 
valid. 

Where Witness Is Present in court it is error to allow his deposition 
to be read. 

Approved in Bandall v. Collins, 52 Tex. 442, applying rule; McClure 
V. Sheek, 68 Tex. 429, 4 S. W. 554, applying rule and excluding depo- 
sition. 

Assignment of Error should be so specific as to direct the mind to 
the particular error complained of. 

Approved in Dunson v. Payne, 44 Tex. 543, affirming where precise 
error not pointed out; McBeynolds ▼. Bowlby, 1 Posey U. C. 456, 

2 Tex. Notes— 6 



28 Tex. 113-122 NOTES ON TEXAS REPORTS. 66 

Carleton v. Roberts, 1 Posey XT. C. 595, Campbell v. H. & T. C. R. R., 
2 Posey XT. C. 475, Carter v. Roland, 53 Tex. 544, all refusing to pass 
upon errors too generally assigned; Atchison etc. R. R. v. Emerson 
(Tex. Civ.), 24 S. W. 1105, errors not shown by the records to have 
been noticed in trial court are deemed waived. 

28 Tex. 113-116, SWINKEY V. BOOTH. 

Witness Stating Tliat Testimony is "his impression" means his best 
recollection, and it is admissible. 

Approved in Simpson v. Brotherton, 62 Tex. 172, admitting witness' 
uncertain recollection of conversation; Moore v. Johnson, 12 Tex. Civ. 
702, 34 S. W. 774, admitting testimony that witness understood re- 
moval from homestead to be permanent; Terrell v. Russell, 16 Tex. 
Civ. 576, 42 S. W. 130, admitting testimony of witness' uncertain 
recollection of position of deceased on locomotive. 

Although Testimony is Vague verdict will not be disturbed where 
not clearly without or against evidence. 

Approved in Hurst v. State, 40 Tex. Cr. 386, 50 S. W. 720, insanitv 
of accused need not be proved beyond reasonable doubt. 

28 T6X. 117-118, DICKSON V. BURKE. 

Citation must be Served at least five days before return term of 
court. 

Approved in Watkins v. Willis, 58 Tex. 523, allowing three entire 
days' grace after day fixed for payment of note, under statute; Wood 
V. Galveston, 76 Tex. 130, 13 S. W. 228, holding service on Tuesday 
before return day on Monday following, sufficient; Wallace v. Crow, 
1 Tex. Ap. Civ. 22, holding default erroneous where only three days 
elapsed between service and return day. See note, 49 L. R. A. 218. 

Joint Default Judgment Against Partners will be reversed as ta 
both where one was not served in time, although only one, appeals. 

Approved in McRea v. Mc Williams, 58 Tex. 334, reversal as to one 
joint defendant operates on those not joining in appeal; Hamilton v. 
Prescott, 73 Tex. 566, 11 S. W. 549, Bradford v. Taylor, 64 Tex. 171, 
both holding reversal of entire judgment operates on defendant not 
appealing; King v. Parks, 26 Tex. Civ. 99, 63 S. W. 902, holding in 
suit on accommodation note where issues are closely related to parties 
not joining in appeal bond, cause should be remanded as to all parties. 
See note, 91 Am. St. Rep. 369. 

28 Tez. 119-122, VAUGHAN V. WABNELL. 

It is not Error to Refuse Instruction already substantially given. 

Approved in De Perez v. Everett, 73 Tex. 434, 11 S. W. 389, holding 
error to give undue prominence to principle by repetition; Austin City 
Water Co. v. Capital Ice Co., 1 Tex. Ap. Civ. 642, holding refusal ta 
give superfluous instruction not error. 

Sheriff Failing to Return Execution must show insolvency of defend, 
ants and diligence, to exonerate himself. 

Approved in Taylor v. Fryar, 18 Tex. Civ. 271, 44 S. W. 185, sheriff 
has burden of showing insolvency of garnishees not served by him; 
Ellis V. Blanks (Tex. Civ.), 25 S. W. 310, sheriff must show that the- 
money could not have been collected by use of proper official diligence. 
See notes, 70 Am. Dec. 298; 3 L. R. A. (n. s.) 423. 

Sheriff may Make Return on execution after return day and after- 
motion against him and his sureties for failure to make return. 



«7 NOTES ON TEXAS BEPOBTS. 28 Tex. 123-149 

Approved in Thomas y. Browder, 33 Tex. 785, holding sheriff ma/ 
amend retnm after motion to amerce him. 

28 Tez. 123-126, OLABK ▼. HUTTON. 

Petitioxi for Certiorari should distinctly state errors complained of, 
not consisting of mere irregularities. 

Approved in Miner v. Gose, 1 Tex. Ap. Civ. 33, petition for certio- 
rari must contain substance of evidence; Wilson v. Griffin, 1 Tex. Ap. 
Civ. 764, petition must show applicant's rights and diligence. 

Writ of Procedendo is properly awarded to justice's court where dis- 
trict court dismisses certiorari proceedings for want of merits. 

Distinguished in Llano Improvement etc. Co. v. White, 5 Tex. Civ. 
Ill, 23 S. W. 594, county court cannot award procedendo on dismiss- 
ing justice court appeal. 

28 Tex. 127-130, LOFTIN ▼. NAIiI£T. 

Appeals are Perfected by Notice entered of record, and by giving 
bond within twenty days after adjournment of court. 

Approved in House v. Williams, 40 Tex. 357, fulfillment of statu- 
tory requirements to perfect appeal must appear on record; Smith v. 
Parks, 55 Tex. 85, 86, dismissing appeal where bond is payable to de- 
ceased plaintiff; Toung v. Bussell, 60 Tex. 687, dismissing appeal 
where bond not payable to proper parties; Western Union Tel. Co. v. 
O'Keefe, 87 Tex. 426, 28 8. W. 945, maintaining appeal where notice 
actually given though not entered of record; H. & T. C. B. B. v. 
McGlasson, 1 Tex. Ap. Civ. 631, dismissing appeal where jurisdictional 
facts do not appear; Bauer v. Adkins (Tex. Civ.), 28 S. W. 1011, where 
bond on appeal in garnishment is made payable to plaintiff alone, it is 
insufficient; Thompson v. Thompson (Tex. Civ.), 41 S. W. 680, citation 
before filing of writ of error bond will not authorize affirmance on 
certificate; Sanger v. Burke (Tex. Civ.), 44 S. W. 871, appeal bond 
must be filed within time prescribed by article 1387 of the Bevised 
Statutes of 1895. 

28 Tex. 130-133, 8M00E ▼. TANDY. 

Agreement to Locate Land Oertiflcata for portion of land is not a 
sale within statute of frauds. 

Approved in Gibbons v. Bell, 45 Tex. 423, applying rule; Beed v. 
West, 47 Tex. 248, enforcing contract between certificate owner and 
locator; Anderson v. Powers, 59 Tex. 214, holding verbal agreement 
for interest in land for services enforceable; Beed v. Howard, 71 Tex. 
206, 9 S. W. 110, holding contract for joint acquisition of public land 
not within statute; Ikard v. Thompson, 81 Tex. 290, 16 S. W. 1021, 
applying rule to similar contract by married woman; Hunt v. Elliott, 
80 Ind. 257, 41 Am. Bep. 804, holding oral agreement that one joint 
mortgagee shall purchase at foreclosure valid. See notes, 67 Am. Dec. 
689; 16 L. B. A. 746. 

Distinguished in Aiken v. Hale, 1 Posey XT. G. 322, holding agree- 
ment to convey portion of land already located within statute. 

28 Tex. 134-149, HOWASD ▼. OOLQUHOUN. 

General Assignment not pointing out specific errors may be disre- 
garded. 

Approved in McBeynolds v. Bowlby, 1 Posey U. C. 456, Carleton v. 
Boberts, 1 Posey U. C. 595, Brooks y. Price, 2 Posey U. C. 121, Byrnes 



28 Tex. 150-159 NOTES ON TEXAS EEPOETS. 68 

V. Morris, 53 Tex. 220^ all disregarding assignments not specifying 
particular errors; Bowles v. Glasgow, 2 Posey U. C. 716, holding judge 
must not charge on weight of evidence. 

Distinguished in Clarendon Land etc. Co. v. McClelland, 86 Tex. 190, 
23 S. W. 1102, 22 L. B. A. 105, holding assignment referring to para- 
graph of charge sufficient. 

Deed Properly Registered need not be afterward registered in new 
county subsequently formed. 

Approved in Lumpkin v. Muncey, 66 Tex. 312, 17 S. W. 733, land 
transfers need not be registered in new county subsequently formed. 

Oral Testimony to Impeach Old Grant, which conflicts with written 
memorial, should be closely scrutinized. 

Approved in Blythe y. Houston, 46 Tex. 76, refusing to impeach 
grant after thirty -five years, without conclusive evidence; Bryan v. 
Shirley, 53 Tex. 452, refusing to disturb old grant, on connicting tes- 
timony; Talbert v. Dull, 70 Tex. 678, 8 S. W. 531, holding acknowledg- 
ment valid although word inadvertently omitted. 

Determination of Oommissioner is conclusive on qualifications of 
colonist to receive certain quantity of land. 

Approved in Decourt v. Sproul, 66 Tex. 371, 1 S. W. 338, Burkett 
V. Scabborough, 59 Tex. 498, both holding grant of headright certifi- 
cate by land commissioner not collaterally attackable; Hickman v. 
Gillum, 66 Tex. 318, 1 S. W. 341, holding delivery of testimonio to 
grantee vested title under Mexican law. See note, 65 Am. Dec. 109. 

28 Tez. 150-165, ROSS ▼. MITCHELL. 

Contract for Location of Land Certificate does not implicitly give 
right to portion of land, but only to payment in money. 

Approved in House v. Brent, 69 Tex. 29, 7 S. W. 67, Morris v. Hall, 
2 Posey U. C. 73, Powell v. Thompson, 66 Tex. 231, 18 S. W. 504, all 
applying rule; Stone v. Ellis, 69 Tex. 328, 329, 7 S. W. 352, 353, sur- 
viving wife cannot contract for location of community land certificate 
for portion of land. See note, 4 Am. St. Rep. 703. 

Bights Conferred by Mortgage cease when debt secured thereby is 
barred. 

Approved in Goldf rank v. Toung, 64 Tex. 434, Blackwell v. Barnett, 
52 Tex. 333, both enjoining sale under deed of trust after note secured 
thereby is barred; Hale v. Baker, 60 Tex. 219, holding vendor's lien 
not enforceable after note is barred; Cason v. Chambers, 62 Tex. 307, 
holding renewal of note does not affect rights acquired while it was 
barred; Lilly v. Dunn, 96 Ind. 226, applying rule and refusing fore- 
closure; McKeen v. James (Tex. Civ.), 23 S. W. 464, mortgage is a 
mere incident of the debt. See note, 21 L. R. A. 557. 

Distinguished in Sprague v. Ireland, 36 Tex. 656, holding sale under 
deed of trust to secure notes valid, after notes barred. 

28 Tez. 157-159, McNEILL ▼. HALLMABK. 

Judgment on Note not Dne rendered before expiration of five days 
after service of citation is erroneous, but not void. 

Approved in McAnear v. Epperson, 54 Tex. 225, 38 Am. Rep. 627, 
absence of personal citation of minors rendered judgment voidable 
only; Ex parte Howard etc. Iron Co., 119 Ala. 489, 72 Am. St. Bep. 
930, 24 So. 518, holding judgment entered before appearance day void- 
able; Leonard v. Sparks, 117 Mo. 114, 38 Am. St. Rep. 652, 22 S. W. 
901, insufficient notice before return day does not render default judg- 



69 NOTES ON TEXAS BEPORTS. 28 Tex. 159-172 

ment collaterally attackable; Kerr y. Murphy, 19 S. D. 193, 102 N. W. 
690, 69 L. B. A. 499, gumnions giving defendant two days instead of 
statutory three days to appear does not make void default judgment 
and injunction to restrain its enforcement will not lie. 

Bemedy for Voidable Jtutice'i Judgment is certiorari to district 
court, and not by injunction. 

Approved in Garner v. Smith, 40 Tex. 515, refusing injunction for 
irregularities in justice's proceedings; Williams v. Ball, 52 Tex. 610, 
upholding validity of justice's judgment not objected to when ren- 
dered; Galveston etc. By. v. Dowe, 70 Tex. 4, 6 S. W. 793, refusing to 
enjoin justice's judgment. See notes, 32 L. B. A. 327; 30 L. B. A. 710. 

28 Tex. 169-162, H0KTEB ▼. OlaABX. 

Giving Time to Principal Debtor by creditor without binding con- 
tract does not release surety. 

Approved in Frois v. Mayfield, 33 Tex. 807, Behrns v. Bogers (Tex. 
Civ.), 40 8. W. 421, and Leazar v. Menefee (Tex. Civ.), 61 S. W. 
438, all applying rule; Hall v. Johnston, 6 Tex. Civ. 115, 24 S. W. 864, 
Andrews v. Hagadon, 54 Tex. 578, both holding sureties not discharged 
by extension without consideration; Brown v. Chambers, 63 Tex. 137, 
holding surety not released by creditor voluntarily holding up execu- 
tion; Morris v. Booth, 4 Tex. Ap. Civ. 492, 18 S. W. 640, Babcock v. 
Milmo Nat. Bank, 1 Tex. Ap. Civ. 469, both holding surety discharged 
by valid extension of note; Jenness v. Cutler, 12 Kan. 513, holding 
surety not discharged by void usurious agreement for extension. See 
note, 58 Am. Dee. 108. 

28 Tex. 163-172, SMITH ▼. SUBLETT. 

Defendant or Intervener may plead inconsistent pleas, provided they 
are pertinent and in due order. 

Approved in Lake Shore etc. By. v. Warren, 3 Wyo. 137, 6 Pac. 726, 
holding inconsistent defenses allowable under statute. See notes, 15 
Am. Dec. 163; 123 Am. St. Bep. 293; 48 L. B. A. 187. 

Contract for Location of Land Oertiflcate involves personal confi- 
dence in agent and does not impliedly allow substitution. 

Approved in Doss v. Slaughter, 53 Tex. 237, holding location by 
other than agent valid when ratified; Bitter v. Calhoun (Tex. Sup.), 
8 S. W. 525, appointment to sell land does not authorize substitution; 
Tynan v. Dullnig (Tex. Civ.), 25 S. W. 466, verbal authority to sell 
land does not empower the agent to appoint a subagent; Williams v. 
Moore, 24 Tex. Civ. 405, 58 S. W. 954, agent employed by land owner 
by the year to look after certain lands, but with no general power to 
sell, cannot employ a broker to sell them; Conrad v. Walsh, 1 Tex. 
Ap. Civ. 91, agent conducting branch business has no implied authority 
to appoint subagent; O'Connor v. Arnold, 53 Ind. 206, arguendo. See 
notes, 93 Am. Dec. 172; 50 Am. St. Bep. 111. 

Distinguished in Eastland v. Maney, 36 Tex. Civ. 148, 81 S. W. 575, 
where agent lived outside of state where land situated. 

Poesesaion of Land Certificate does not imply power to employ an- 
other to locate it; title thereto is presumed in assignee named therein. 

Approved in Benick v. Dawson, 55 Tex. 108, awarding land to trans- 
feree of certificate under deed for less land than located; Shifflet v. 
Morelle, 68 Tex. 392, 4 S. W. 848, holding *mere possession of certifi- 
cate not evidence of title in possessor. See note, 50 Am. St. Bep. 111. 



£8 Tex. 172-185 NOTES ON TEXAS EEPOBTS. 70 

Principal is not Iiiabla for acts done outside of scope of agent's 
authority where the third parties treated with the agent as principal. 

Approved in Band v. Davis (Tex. Gir.), 27 S. W. 942, principal is 
not chargeable with knowledge of agent acquired while engaged in 
foreign transactions. 

28 Tex. 172-174, BATET v. DIBBELL. 

Suggestion of Delay waives want of assignment of erron , and brings 
whole cause in review. 

Approved in Mo. Pae. By. y. Patterson, 2 Tex. Ap. Civ. 714, Dibrell 
V. Ireland, 1 Tex. Ap. Civ. 122, Wheeler v. Phillips (Tex. Civ.), 22 8. 
W. 543, all applying rule and reversing judgment. 

SherilTi Betam on Writ of Error must distinctly show delivery to 
defendant of copy of petition and writ. 

Approved in Graves v. Holmes, 1 Tex. Ap. Civ. 16, holding return 
not showing delivery of copy of petition insufficient; Womack v. Slade 
(Tex. Civ.), 23 S. W. 1002, under the statute return that citation in 
error was served by delivering true copy to defendant is insufficient. 

Distinguished in Brooks v. Powell (Tex. Civ.), 29 S. W. 812, holding 
return of service of citation by delivering copy to a person of same 
name as defendant sufficient, though not reciting service on defend- 
ant "in person." 

Where Service of Writ of Error has not been perfected, and defend- 
ants have not notified plaintiffs that former have filed transcript, 
cause will be diemissed. 

Approved in McMickle v. Texarkana Nat. Bank, 4 Tex. Civ. 210, 
holding transcript must contain citation and return; Poole v. Mueller 
(Tex. Civ.), 26 S. W. 739, where return to citation in error does not 
show service on attorney "in person," and there is no appearance, case 
will be stricken from docket. 

Distinguished in Wilson v. Adams, 50 Tex. 13, 14, affirming judg- 
ment, where defendant in error acknowledged service of writ after 
plaintiff's neglect to serve it. 



28 Tez. 175-185, GABNEB ▼. OUT] 

Levy on Personalty is prima facie evidence of satisfaction on exe- 
cution. 

Approved in Heilbroner v. Douglass, 45 Tex. 406, holding defendant 
entitled to credit for property seized and lost; Cravens v. Wilson, 48 
Tex. 339, setting aside sheriff's fraudulent sale for inadequate price. 

Distinguished in Taylor v. Felder, 5 Tex. Civ. 423, 23 S. W. 482, 
holding levy of distress warrant not prima facie satisfaction of debt. 

Sheriff's Betnm of Execution is to be regarded as true until contrary 
appears. 

Approved in Cravens v. Wilson, 35 Tex. 57, holding creditor may 
show that property seized was less than amount returned in levy; 
Holmes v. Buckner, 67 Tex. 110, 2 8. W. 454, admitting parol evidence 
to correct sheriff's return varying from deed. 

Statutory Bnles Begolatlng taking of testimony by deposition must 
be fully complied with. 

Approved in Laird v. Ivens, 45 Tex. 623, applying rule and re- 
jecting depositions for informality; Bice v. Ward, 93 Tex. 536, 56 
S. W. 749, suppressing deposition where notary used memoranda pre- 
pared by counsel procuring deposition, to suggest omissions in answers 
and to refresh witness' memory; St. Louis etc. By. Co. v. Harkey, 39 



71 NOTES ON TEXAS BEPOBT8. 28 Tex. 185-202 

Tex. Civ. 527, 88 S. W. 508, admitting testimony on motion to quasb 
deposition as to office and postmaster to whom delivered; Grigsby v. 
May, 57 Tex. 258, holding objection to deposition for lack of notice 
must be in writing; Avoeato v. Dell'ara (Tex. Civ.), 57 S. W. 299, 
suppressing deposition on deponent's motion where his answers were 
induced through want of knowledge of English language; McMahon 
V. Veasey (Tex. Civ.), 60 8. W. 333, where deposition was allowed to 
stand because of informal objection to it. 

Appellant most Present Facts so as to designate errors complained 
of. 

Approved in Texas etc. By. v. McAllister, 59 Tex. 362, refusing 
to consider errors without statement of facts or bill of exceptions. 
See note, 91 Am. Dec. 196. 

28 Tex. 185-192, WILLIS V. LEWIS. 

Defendant must ProTe His Deed, when attacked as forgery by 
plaintiff's affidavit. 

Approved in Cox v. Cock, 59 Tex. 524, holding impeached deed 
established where evidence introduced, but no rebuttal. 

Although Qrantor Could not Bead or Write, his signature to deed 
IS not necessarily forgery; if written by another, but acknowledged 
by grantor, it is sufficient. 

Approved in Newton v. Emers<jn, 66 Tex. 145, 18 S. W. 349, hold- 
ing conveyance valid where written by another, but acknowledged 
by grantor; Capp v. Terry, 75 Tex. 400, 13 S. W. 55, admitting copy 
of lost deed, although grantor's initials are reversed in body of 
deed and acknowledgment; Harwood v. State, 63 Ark. 134, 37 S. 
W. 305, holding transferred record not impeached by proving clerk's 
name not in his own handwriting. 

Verdict most be Clearly Wrong before it will be disturbed on 
appeal. 

Approved in Houston etc. By. v. Schmidt, 61 Tex. 28 R, Missouri 
etc. By. V. Somers, 78 T-^x. 441, 14 S. W. 779, Mutual Life etc. Co. 
V. Tillman, 84 Tex. 35, 19 S. W. 296, International etc. B. B. v. Arias, 
10 Tex. Civ. 194, 30 S. W. 447, League v. Trepagnier, 13 Tex. Civ. 
526, 36 S. W. 774, and Hamage v. Berry, 43 Tex. 569, all setting aside 
verdicts not supported by evidence; Galveston etc. By. Co. v. Walker, 
38 Tex. Civ. 80, 85 S. W. 31, setting aside verdict where plaintiff 
changed testimony to conform to opinion of court on former appeal; 
Guerin v. Patterson, 55 Tex. 128, reversing for erroneous ruling on 
burden of proof; Woodson ▼. Collins, 56 Tex. 175, reversing for in- 
sufficient evidence to sustain finding of fraudulent conveyance; 
Howard v. Kopperl, 74 Tex. 505, 5 S. W. 634, Zapp v. Michaelis, 58 
Tex. 275, both refusing to disturb verdict where evidence conflicting; 
Hanrick v. Dodd, 62 Tex. 89, affirming verdict finding forgery in land 
grant; dissenting opinion in Mutual Life Ins. Co. v. Hayward, 88 
Tex. 327, 31 S. W. 511, majority refusing to revise issue of facts where 
testimony eonflicting; Moore v. Tarrant Co. etc. Assn. (Tex. Civ.), 
31 S. W. 710, instance where facts were sufficient to prove title to 
land by estoppel. 

28 Tez. 192-202, WALTEBS v. JEWETT. 

Bight to Heftdright Certificate is only an inchoate, equitable right 
not descendable to heirs. 

Approved in Bishop v. Lusk, 8 Tex. Civ. 32, 27 S. W. 307, holding 
wife haa no community interest in land adversely held, before limita- 



28 Tex. 202-210 NOTES ON TEXAS REPORTS. 72 

tion expires; Welder y. Lambert, 91 Tex. 524, 525, 44 S. W. 285, 286, 
arguendo. 

Distinguished in Manchaca y. Field, 62 Tex. 139, holding right to 
colonization concession community property, and passes to wife's 
heirs. 

Judgment of Land Oommissionera awarding headright certificate 
to assignee cannot be questioned collaterally. 

Approved in Merriweather v. Kennard, 41 Tex. 281, certificate 
issued by board to assignee passes title to him; Johnson v. New- 
man, 43 Tex. 640, purchaser of certificate without notice of prior 
conveyance takes better title; Hollis v. Dashiell, 52 Tex. 194, trans- 
fer of headright claim gives assignee right to certificate; Bradshaw 
V. Smith, 53 Tex. 479, certificate issued, by competent authority and 
merged in patent is not collaterally attackable; Burkett v. Scab- 
borough, 59 Tex. 498, land commissioner's decision of person entitled 
to certificate is not collaterally attackable; Adams y. House, 61 Tex. 
641, Satterwhite y. Rosser, 61 Tex. 173, both holding patent issued 
in name of headright claimant inures to benefit of his assignee; 
Capp v. Terry, 75 Tex. 396, 13 S. W. 54, applying rule and holding 
patent inures to assignee's benefit; Stooksberry v. Swann, 12 Tex. 
Civ. 73, 34 S. W. 371, holding ancient deed valid, although notary's 
wax seal detached. 

To Establisli Equitable Trust, plaintifif must show equity and that 
remedy sought is indispensable. 

Approved in Williams v. Rand, 9 Tex. Civ. 638, 30 S. W. 512» 
■ubsequent purchaser of land cannot prevail over prior owner unless 
he shows equity in his claim. 

28 Tex. 202-210, 91 Am. Dec. 309, OOBNEUUS ▼. BUFOBD. 

Levy on Suillcient Personalty to satisfy execution is satisfaction 
of debt, if property is taken from defendant's possession. 

Approved in Lustfield v. Ball, 103 Mich. 21, 61 N. W. 341, holding 
levy no satisfaction where property was left in debtor's possession. 
See notes, 58 Am. Dec. 351, 354, 355; 97 Am. Dec. 242; 98 Am. Dee. 
646. 

Distinguished in Cravans v. Wilson, 35 Tex. 57, execution creditor 
may show that amount of property seized is less than returned; 
Cravens v. Wilson, 48 Tex. 339, holding levy of attachment no 
satisfaction of plaintiff's demand; Taylor v. Felder, 5 Tex. Civ. 
423, 23 S. W. 482, levy of distress warrant is not prima facie satis- 
faction of debt. 

After Levy on Sufftcient Personalty to satisfy execution, creditor 
must look to officer, as debtor is discharged. 

Approved in Dewitt v. Oppenheimer, 51 Tex. 108, holding sheriff 
liable where levy was insufficient; Fatheree y. Williams, 13 Tex. 
Civ. 433, 35 S. W. 326, holding sheriff liable for wrongful levy. 
See notes, 58 Am. Dec. 360; 6 Am. St. Rep. 348; 28 Am. St. Rep. 151. 

In Making a Levy, a sheriff ought not sell more of defendant's 
property than sound judgment would deem sufficient to satisfy the 
demand, where it can be sold separately. 

Approved in Allen v. Ashburn, 27 Tex. Civ. 243, 65 S. W. 48, 
holding petition in case at bar as stating cause of action for ex- 
cessive levy. See note^ 95 Am. St. Rep. 102. 



73 KOTES ON TEXAS EEPOBTS. 28 Teac. 211-227 

28 Tex. 211-219, 91 Am. Dec. 316, HANIiSY ▼. GANDT. 

Handwriting 1b ProTable by Witness who saw instrument executed, 
or who had seen party write, or had access to his writings. 

Approved in Speider y. State, 3 Tex. Ap. 159, Kennedy v. Upshaw, 
64 Tex. 421, both admitting expert's opinion on comparison of signa- 
tures; Sheppard v. Love (Tex. Civ.), 71 S. W. 68, instrument, not 
otherwise relevant, not admissible to prove handwriting; Havnie v. 
State, 2 Tex. Ap. 172, admitting testimony of witness who had seen 
party write; Jones v. State, 7 Tex. Ap. 460, allowing proof of hand- 
writing by comparison under statute; Talbot v. Dillard, 22 Tex. Civ. 
361, 54 S. W. 407, Heacock v. State, 13 Tex. Ap. 132, both holding 
handwriting provable by comparison by expert; Haun v. State, 13 
Tex. Ap. 389, rejecting testimony of witness not shown to have seen 
persoa write; Williams v. Conger, 125 U. S. 414, 31 L. 386, 8 Sup. 
Ct. Bep. 941, allowing comparison of papers in evidence to prove hand- 
writing. See notes, 6 Am. Dec. 172; 95 Am. Dec. 484; 99 Am. Dec. 
470; 6 Am. St. Rep. 177. 

Distinguished in Cook v. First Nat. Bank (Tex. Civ.), 33 S. W. 999, 
signatures on irrelevant documents are not admissible as basis for 
comparison where signature in issue is not of ancient date. 

OompariBon of Disputed Handwriting with other papers is er- 
roneous. 

See notes, 62 L. B. A. 858; 12 L. B. A. 458, 459, 461. 

28 Tez. 219-227, LEMMON ▼. HANLEY. 

Purchaser cannot Besist Pasrment of purchase note for failure of 
title where he does not offer to return property. 

Approved in Wright v. Heffner, 57 Tex. 523, probate purchaser 
cannot defeat recovery on note for failure of title without restoring 
. property; Fondren v. Leake, 1 Posey U. C. 153, Linn v. Willis, 1 
Posey U. C. 164, both applying rule. See note, 70 Am. Dec. 341. 

False Bepresentations will not Afford Belief to party unless they 
were material and caused injury. 

Approved in Furneaux v. Webb, 33 Tex. Civ. 5G1, 77 S. W. 828, 
representations of sublessors as to title to land immaterial, under 
circumstances; Moore v. Cross, 87 Tex. 561, 29 S. W. 1053, refusing 
to cancel deed for fraud, where no pecuniary loss suffered. 

Plea Impeaching Consideration of Note need not be sworn to. 

Approved in Davidson v. Gibson, 2 Posey U. C. 333, defendant 
may amend verified plea impeaching consideration of note. 

Neither Party is Bound to Answer matters not pleaded; allegata 
and probata must concur. 

Approved in Galveston etc. B. Co. v. Pfeuffer, 56 Tex. 75, in tres- 
pass for injury to realty and damages, without prayer for recovery 
of land or enforcement of lien, judgment that plaintiff be put in 
possession in default of payment of money is erroneous; Pacific 
Express Co. y. Darnell, 62 Tex. 641, issuable facts must be pleaded 
to admit evidence thereon; Texas Elevator Co. v. Mitchell, 78 Tex. 
68, 14 S. W. 276, where defendant pleads lack of negligence plaintiff 
may give rebuttal evidence without plea; Ware v. Shafer, 88 Tex. 
46, 29 S. W. 757, refusing instruction on matter not pleaded; Robin- 
son V. Moore, 1 Tex. Civ. 98, 20 S. W. 996, disregarding jury's finding 
on matters not pleaded; Gulf etc. Ry. v. Vieno, 7 Tex. Civ. 350, 26 
S. W. 231, holding error to submit to jury matters not pleaded; Jones 
V. Brazile, 1 Tex. Ap. Civ. 122, party suing on contract cannot recover 



28 Tex. 227-246 NOTES ON TEXAS REPORTS. 74 

on quantum meruit; Hannah v. Chadwick, 2 Tex. Ap. Civ. 46o, de- 
fendant cannot prove failure of consideration not pleaded sufficiently; 
Dolores Land etc. Co. v. JoneS; 3 Tex. Ap. Civ. 330, plaintiff cannot 
recover damages not pleaded. 

28 Tex. 227-230, COWAN ▼. BOSS. 

On Motion and Notice, district court can amend entry of judgment 
of a previous term. 

Approved in Chestnutt v. Pollard, 77 Tex. 88, 13 8. W. 852, amend- 
ing minutes containing wrong judgment number; Wichita Valley 
Ry. V. Peery, 88 Tex. 382, 31 8. W. 621, dismissing appeal where 
trial court refused to enter notice inadvertently omitted; Nettles v. 
State, 4 Tex. Ap. 343, allowing file-mark to be placed on papers 
nunc pro tunc; Morse v. State, 39 Tex. Cr. 572, 50 8. W. 342, allow- 
ing nunc pro tune entry of notice of appeal at subsequent term; 
Andresen v. Lederer, 53 Neb. 130, 73 N. W. 665, affirming right of 
subsequent amendment of record; Pennsylvania etc. Ins. Co. v. 
Wagley (Tex. Civ.), 36 S. W. 998, correcting file-mark on petition 
under order of court; Winter v. Texas Land etc. Co. (Tex. Civ.), 54 
8. W. 804, entering order sustaining demurrer nunc pro tunc where 
shown on judge's docket. See note, 65 Am. Dec. 132. 

Distinguished in Kendall v. Mather, 48 Tex. 596, district court 
cannot correct mistakes after supreme court's decision on appeal; 
Missouri etc. Ry. v. Haynes, 82 Tex. 454, 18 8. W. 607, holding 
judgment not amendable after term, to include amount inadvertently 
omitted. 

Miscellaneous. — Dawson v. Sparks, 1 Posey U. C. 758, miscited. 

28 Tex. 230-240, OOWAN V. NIXON. 

Constitutioa Provides That Justices of the Peace shall have such 
jurisdiction as shall be provided by law, thus leaving legislature to 
create their powers. 

Approved in Ex parte McGrew, 40 Tex. 474, justice cannot im- 
pose fine exceeding one hundred dollars; Solon v. State, 5 Tex. Ap. 
305, applying rule in determining justice's criminal jurisdiction; 
Wells Y. Littlefield, 62 Tex. 32, arguendo. 

28 Tex. 240-246, WHEELEB v. STYUSS. 

One Entering Public Land under purchase from another, on ascer- 
taining that vendor's title was worthless, may claim pre-emption 
adversely to vendor. 

Approved in Rodgers v. Daily, 46 Tex. 583, applying rule and 
refusing recovery on purchase notes; Howard v. McKenzie, 54 Tex. 
188, vendee may locate certificate on land where vendor's title fails; 
Lamb v. James, 87 Tex. 490, 29 8. W. 649, vendee of public land 
can recover money paid and have notes canceled; James v. Lamb, 
2 Tex. Civ. 187, 21 S. W. 173, holding vendor of land liable for 
amount paid state to perfect title; Brinkley v. Smith, 12 Tex. Civ. 
645, 35 S. W. 50, although plaintiff contracted with defendant for 
conveyance of land, he can homestead it when latter's homestead 
application fails; Home v. Gambrell, 1 Tex. Ap. Civ. 559, if pre- 
emptor abandons land, others may enter upon it as public land; 
Turner v. Ferguson, 58 Tex. 10, arguendo. 

Distinguished in Williams v. Finley, 99 Tex. 473, 90 8. W. 1090, 
where vendee received possession and valuable improvements made 
upon faith of patent from state. 



75 KOTES ON TEXAS EEPORTS. 28 Tex. 247-263 

Pertinent Porttons of Party's Pleadings in another suit are ad- 
missible against him. 

Approved in Buzard ▼. McAnnlty, 77 Tex. 446, 14 S. W. 141, 
admitting pleadings in another suit; Laflin v. Shackelford, 98 Fed. 
374, refusing to revise rejection of entire record in another case; 
dissenting opinion in Barrett v. Featherstone, 89 Tex. 580, 35 S. 
W. 17, majority admitting pleadings, although superseded by amend- 
ment. See note, 74 Am. Dec. 145. 

Measure of Damages for Failure of Title to realty is money paid 
and interest. 

Approved in Roberts ▼. McFaddin, 32 Tex. Civ. 55, 74 S. W. 110, 
reaffirming rule. See note, 16 L. B. A. (n. s.) 771; 4 L. B. A. 670. 

28 Tex. 247-263/ OOX ▼. BRAY. 

Where Holder of Land Certificate executed power of attorney 
to locate, patent, and sell land, transaction may be proved a sale 
by parol testimony. 

Approved in Staley v. Hankla (Tex. Civ.), 43 S. W. 20, reaffirming 
rule; Moore v, Tarrant Co. etc. Assn. (Tex. Civ.), 31 S. W. 710, holder 
of executory contract for land may direct the conveyance of the land 
to a third party; Thomas v. Hammond, 47 Tex. 54, admitting parol 
proof of parts of land transaction not reduced to writing; David- 
son v. Senior, 3 Tex. Civ. 549, 23 S. W. 25, applying rule and hold- 
ing transaction a conveyance; Northington v. Tuohy, 2 Tex. Ap. 
Civ. 283, admitting parol proof to vary amount of consideration 
stated in deed; James v. King, 2 Tex. Ap. Civ. 489, admitting parol 
proof of portion of contract not reduced to writing. 

Distinguished in Belcher v. Mulhall, 57 Tex. 20, rejecting parol 
to vary written agreement. 

Parol Evidence of Title to land is admissible when offered by 
defendant who is in possession even after great lapse of time, al- 
though impaired in weight by that fact. 

Approved in Whisler v. Cornelius, 34 Tex. Civ. 514, 79 S. W. 362, 
so long as defendant can assert equitable title without demanding 
affirmative relief, doctrine of stale demand does not apply; Staley 
V. Hankla (Tex. Civ.), 43 8. W. 21, stale demand cannot be urged 
by plaintiff in action to dispossess defendant holding under transfer 
of headright certificate; Hanrick v. Gurley (Tex. Civ.), 48 S. W. 
998, instance where statute of limitations was held not to apply 
against an assignee of purchaser under mortgage sale pendente lite. 

Sale of Unlocated Land Certificate is not within statute of frauds, 
and may be by parol. 

Approved in Pleasants v. Dunkin, 47 Tex. 355, upholding probate 
sale of land certificate; Stone v. Brown, 54 Tex. 334, upholding 
h3rpothecation by depository of land certificates indorsed in blank; 
Capp V. Terry, 75 Tex. 401, 13 S. W. 56, Lindsay v. Jaffray, 55 Tex. 
633, both upholding parol sale of land certificate against subse- 
quent quitclaim deed; Porter v. Burnett, 60 Tex. 222, holding un- 
located land certificate a chattel in determining surviving wife's 
interest; Parker v. Spencer, 61 Tex. 164, upholding verbal sale of 
land certificate; Edwards v. Gill, 5 Tex. Civ. 207, 23 S. W. 744, 
holding title to land subsequently patented passed on administra- 
tor's sale of certificate; Hensel v. Kegans, 8 Tex. Civ. 586, 28 S. 
W. 706, purchaser of headright certificate takes subject to wife's 
<!nms; Sewell v. Laurance, 2 Posey U. C. 379, land certificates are 



28 Tex. 263-294 NOTES ON TEXAS BEP0RT8. 76 

personal property and pass by delivery; Massenberg; y. Denison, 
107 Fed. 22, holding; Texas land certificate personalty, and salable 
by administrator without order; Miller y. Texas etc. By., 132 U. 
S. 684, 32 L. 498, 10 Sup. Ot. Bep. 213, holding land certificates 
chattels and transferable by parol; New York etc. Land Co. y. Thom- 
son, 83 Tex. 180, 17 S. W. 923, arguendo; Stooksberry v. Swann, 12 
Tex. Civ. 74, 34 8. W. 372, arguendo. See note, 67 Am. Dec. 689. 

Distinguished in Hearne v. Gillett, 62 Tex. 25, land certificate 
after location becomes chattel real, and cannot pass by parol. 

Title, of Which One Link is established by parol, will not sus- 
tain plea of three years' limitation. 

Approved in Grigsby v. May, 84 Tex. 253, 19 S. W. 347, patent to 
heirs is title from sovereignty of soil within meaning of statute 
of limitations; Finch v. Trent, 3 Tex. Civ. 571, 22 S. W. 134, hold- 
ing defense not available where defendant's title rested on parol; 
Finch V. Trent, 3 Tex. Civ. 571, 22 S. W. 134, holding adverse pos- 
session under article 3192 of Be vised Statutes confined to possession 
under deeds or other writings. 

Deed Executed by attorney in fact after death of his principal is 
absolutely void. 

Reaflirmed in Connor v. Parsons (Tex. Civ.), 30 8. W. 85. See 
note, 88 Am. St. Bep. 717. 

28 Tex. 263-268, GOSS ▼. PILORIM. 

Judgment by Nil Diclt or by confession will not be reversed where 
complaining party has not been injured. 

Approved in Smith v. Wood, 37 Tex. 620, affirming judgment for 
gold payment of note so payable under its terms; Frazier v. Wood- 
ward, 61 Tex. 451, reversing confessed judgment for excessive, un- 
authorized amount. 

Miscellaneous. — Cited in Smith v. Conner, 98 Tex. 435, 84 S. W. 
816, refusing to mandamus civil court of appeals to certify case 
alleged to be in conflict with cited case. 

28 Tex. 268-294, WHITEHEAD ▼. FOLEY. 

Oonveyance by Deed, Descent, or government grant carries legal 
seisin to grantee. 

Approved in Lockridge v. McCommon, 90 Tex. 238, 38 S. W. 34, 
holding livery of seisin not necessary to support conditional limita- 
tion. 

Possession of Intruder is confined to land actually occupied; posses- 
sion by person under colorable title is considered coextensive with 
his deed. 

Approved in Pearson v. Boyd, 62 Tex. 544, adverse possession 
for ten years of part of headright land under contract for its sale 
gives right to entire tract; Parker v. Baines, 65 Tex. 609, possession 
of subsequent grantee works disseizin to extent of his grant; Evans 
V. Foster, 79 Tex. 51, 15 S. W. 171, intruder sustaining limitation 
acquires only land actually occupied; Montgomery v. Gunther, 81 
Tex. 325, 16 S. W. 1075, restricting possession to lands actually oc- 
cupied by adverse claimants to locations under same certificate; 
Beaumont Lumber Co. v. Ballard (Tex. Civ.), 23 S. W. 921, intruder's 
possession is confined to land actually occupied; Dunman v. Harrison 
(Tex. Civ.), 41 8. W. 500, arguendo. See notes, 76 Am. St. Bep. 492; 
15 L. B. A. (n. B.) 1241, 1242. 



77 NOTES ON TEXAS BEPOBTS. 28 Tex. 268-294 

Distingins^ied in Ellis ▼. Le Bow, 30 Tex. Civ. 456, 71 8. W. 580, 
judgment will not give color of title as against one not a party to it; 
Native] v. Baymond (Tex. Civ.), 59 8. W. 312, holding title acquired 
by ten years' adverse possession of fifteen acre lot, although only 
small portion was inclosed, where remainder was claimed adversely. 

Void Certiflcate and Survey cannot give color of title to claimants 
holding land thereunder. 

Approved in Wofford v. McKinna, 23 Tex. 47, 76 Am. Dec. 57, 
holding assessor's void deed will not support plea of ^\e years' 
limitation; Besson v. Bichards, 24 Tex. Civ. 68, 58 S. .W. 614, hold- 
ing location on previously surveyed land no basis of claim of title; 
Watson V. Watson (Tex. Civ.), 55 8. W. 183, deed to part of home- 
stead, executed by husband alone, does not constitute "title or color 
ot title." 

Possession of Iiand, to amount to disseizin, must be actual, visible, 
and notorious occupation. 

Approved in Parker v. Bains, 59 Tex. 18, holding sale of land 
amounts to assertion of right thereto. 

Actual, Visible, and Substantial inclosure of land is decisive proof 
of disseizin, and also of its limits. 

Approved in Cantagrel v. Yon Lupin, 58 Tex. 577, holding fencing 
land sufficient to plead five years' limitation. 

ConstmctlTe Possession is incidental to ownership of land, and 
results from title, and is not applicable to wrongful occupation. 

Approved in Jones v. Paul, 59 Tex. 46, refusing recovery to vendee 
under warranty deed, before assertion of superior title; Parker v. 
Baines, 65 Tex. 608, Evitts v. Both, 61 Tex. 84, both holding when 
true owner enters land constructive possession of adverse claimant 
ceases as to unindosed portion; Heironimus v. Duncan, 11 Tex. Civ. 
615, 33 8. W. 289, trespasser cannot recover for crops destroyed by 
cattle on uninclosed land. 

Party Claiming Title to Land by five years' possession under 
recorded deed should show compliance with statute perfect in every 
particular. 

Approved in Hunton v. Nichols, 55 Tex. 230, upholding limitation 
under deed not conveying good title where statutory requirements 
fulfilled; Adams v. Hay den, 60 Tex. 227, holding bar of statute not 
applicable where deed recorded in wrong county; Griffin v. West 
Ford, 60 Tex. 505, holding record of deed and payment of taxes 
insufficient to support five years' limitation; Tarlton v. Kirkpatrick, 
1 Tex. Civ. 113, 21 8. W. 408, holding five years' limitation not 
sustained without payment of taxes; Jacks v. Dillon, 6 Tex. Civ. 
196, 25 8. W. 646, upholding title by limitation to entire tract where 
possession was continuous under record deeds; Hull v. Woods, 14 
Tex. Civ. 591, 38 8. W. 256, holding temporary inclosure of land, 
subsequently abandoned, insufficient to support limitation; McDow 
y. Babb, 56 Tex. 160, arguendo. 

Legal Title to land draws to owner seisin and possession, and he 
is disseized only to extent of possession adversely held. 

Approved in Fuentes v. McDonald, 85 Tex. 136, 20 S. W. 44, 
Vineyard v. Brundrett, 17 Tex. Civ. 151, 42 8. W. 234, Sabine etc. 
By. y. Johnson, 65 Tex. 394, all holding grazing cattle on land no 
dispossession of owner; Peyton v. Barton, 53 Tex. 304, where there 
is only partial conflict of surveys statute does not run in favor of 
adverse occupant under junior title, if his actual possession does 



28 Tex. 294-336 NOTES ON TEXAS EEPOBTS. 78 

not extend to part of land in dispute within conflict; Turner v. Moore, 
81 Tex. 209, 16 S. W. 930, after sale of iract in subdivisions, grantee 
of entire tract cannot claim iubdivisions never possessed by him; 
Cook V. Lister, 15 Tex. Civ. 32, 38 S. W. 380, partial possession of 
tract does not dispossess prior grantee of portion thereof. 

Where Ground of Exclusion of Testimony is not shown in bill of 
exceptions, court will not review ruling unless manifestly unjust. 

Approved in International etc. Ry. v. Jones (Tex. Civ.), 60 S. W. 
978, Schouch v. San Antonio (Tex. Civ.), 57 S. W. 893, both reafflrm- 
ing rule; Endick v. Endick, 61 Tex. 560, Western Union Tel. Co. v. 
Arwine, 3 Tex. Civ. 157, 22 S. W. 105, Johnson v. Crawl, 55 Tex. 
576, all applying rule and affirming judgment. 

28 Tez. 294-321, BISHOP ▼. JONES. 

Flea of ''Alien Enemy" is merely dilatory; it is an "odious" plea, 
and will not be aided by construction. 

Approved in Missouri etc. Ry. v. Cullers, 81 Tex. 386, 17 8. W. 
21, 13 L. R. A. 542, holding civilized Indian can sue in state courts. 
See note, 89 Am. Dec. 681. 

28 Tez. 322-325, BUTHEBFOBD ▼. SMITH. 

Allegation That Payee transferred note by indorsement to plaintiff 
for valuable consideration is sufficient to show title in plaintiff. 

Approved in German Ins. Co. v. Pearlstone, 18 Tex. Civ. 708, 
45 S. W. 833, holding allegation that defendant insured plaintiffs 
on their stock sufficient to show ownership; Kursey v. Bellas, 1 
Tex. Ap. Civ. 40, holding allegation of execution and delivery to 
plaintiff sufficient; Park v. Pendergast, 4 Tex. Civ. 569, 23 S. W. 
536, arguendo; Simpson etc. v. Masterson (Tex, Civ.), 31 S. W. 419, 
averment of purchase of notes before their maturity is sufficient; 
German Ins. Co. v. Gibbs (Tex. Civ.), 35 8. W. 679, allegation that 
insurance policy was issued to plaintiff is equivalent to one of owner- 
ship. 

A Promissory Note is not Usurious Merely because it bears interest 
from a time anterior to its date. 

Reaffirmed in Cole y. Horton (Tex. Civ.), 61 S. W. 503. 

28 Tex. 326-327, NATHAN ▼. STATE. 

Where No Judgment is Entered on verdict of guilty, appeal is 
dismissed. 

Approved in Dooly v. State, 33 Tex. 712, Mayfleld v. State, 40 Tex. 
290, Smith v. State, 1 Tex. Ap. 410, and Pennington v. State, 11 Tex. 
Ap. 283, all dismissing appeal. See note, 28 L. B. A. 628. 

28 Tex. 327, STATE v. STOUT. 

Supreme Court will not entertain appeal where defendant is not 
under recognizance. 

Affirmed in Buie v. State, 1 Tex. Ap. 61, dismissing appeal where 
recognizance was defective. 

28 Tex. 328-336» STACHELY ▼. PEIBCE. 

Continuance is Properly Refused where applicant failed to state 
when he expected to have absent witness' testimony. 

Approved in Franks v. Williams, 37 Tex. 25, applying rule; Cabell 
▼. Holloway, 10 Tex. Civ. 308, 31 S. W. 202, refusing continuance 



79 NOTES ON TEXAS BEP0BT8. 28 Tex. 336-341 

where it ii not shown that absent witness' testimony wonld be ob- 
tained in reasonable time; Doxey v. Westbrook (Tex. Civ.), 62 S. W. 
788, refusing continuance where affidavits for it failed to state that 
applicant expected to procure the absent witnesses at next court or 
any other time. 

Receipts may be Contr&dicted by parol evidence, but are prima facie 
correct. 

Approved in Pool v. Chase, 46 Tex. 211, admitting parol contradic- 
tion of receipt; Texas etc. Ins. Co. v. Davidge, 51 Tex. 250, admitting 
parol contradiction of receipt for premium recited in insurance policy; 
Middlebrook v. Zapp, 73 Tex. 31, 10 S. W. 734, arguendo. 

In Action to Recover Property in case of joint bailment, all joint 
owners must join as plaintiffs. 

Approved in H. & T. C. By. v. Hollingsworth, 2 Tex. Ap. Civ. 149, 
T. & P. B. B. V. Williams, 1 Tex. Ap. Civ. 98, both holding one joint 
owner cannot sue to recover interest in property destroyed; Strohl v. 
Pinkerton, 1 Tex. Ap. Civ. 218, all joint owners of debt must join in 
suit; Texas etc. By. v. Gill, 2 Tex. Ap. Civ. 161, joint owners of crops 
may join to recover for damages thereto; Texas etc. By. v. Pollard, 
2 Tex. Ap. Civ. 426, objection to misjoinder of husband and wife must 
be taken by special exception ; Mo. Pac. By. v. Teague, 2 Tex. Ap. Civ. 
686, surviving wife and children must join in action for injury to 
homestead. 

Joint Creditors must all join in action to recover debt or estate 
which they hold together. 

Approved in Goldman v. Blum, 58 Tex. 636, transferees of part of 
note and original payee can join in suit; O'Brien v. Gill eland, 79 Tex. 
604, 15 S. W. 682, law firm and surviving partner thereof are properly 
joined to recover fees; Williams v. Fort Worth etc. By., 82 Tex. 560, 
18 S. W. 209, reversing for defect of parties where all beneficiaries 
under bond are not joined; Hanner v. Summerhill, 7 Tex. Civ. 237, 
26 S. W. 908, both legatees of vendor are necessary parties to enforce 
lien. 

Distinguished in T. C. By. v. Burnett, 61 Tex. 639, holding husband 
alone is proper party to bring suit for personal injury to wife. 

In Suit by One Plaintiff for quantity of wool held in storage, un- 
explained receipt for wool delivered jointly by plaintiff and another 
to defendant is inadmissible. 

Approved in Gulf etc. By. v. McGowan (Tex. Sup.), 8 S. W. 58, in 
action against railroad for damming water, thereby destroying crops 
cultivated by plaintiff and his tenant. 

28 Tex. 336-341, TUCKER ▼. BRACEETT. 

Surviving Wife Filing Inventory and appraisement of community 
property may be sued on community debts for which it was made ex- 
pressly liable. 

Approved in Moke v. Brackett, 28 Tex. 445, upholding judgment 
against surviving wife for community debts; Hollingsworth v. Davis, 
62 Tex. 440, and Carter v. Conner, 60 Tex. 59, both holding judgment 
against surviving spouse for community debt binding on community 
property; Hill v. Osborne,* 60 Tex. 392, holding community property 
liable for community debts after wife's death; Withrow v. Adams, 
4 Tex. Civ. 445, 23 S. W. 439, upholding sale of community property by 
surviving wife. 



28 Tex. 341-367 NOTES ON TEXAS REPORTS. 80 

Distinguished in Wingfield t. Hackney, 95 Tex. 494, 68 S. W. 264, 
regular administration necessary where surviving wife had remarried. 

Court may Prevent Execution against wife on community debt 
where property is likely to be sacrificed. 

Approved in Laughter v. Seela, 59 Tex. 185, court may enjoin execu. 
tion sale of minor's estate to prevent sacrifice. 

28 Tex. 341-345, FLOTD ▼. SIOE. 

Where Record Shows no action by lower court on exceptions to 
pleadings, they are presumed to have been abandoned. 

Approved in William J. Lemp Brewing Co. v. McDougle, 40 Tex. 
Civ. 583, 90 S. W. 215, and Rische v. Diesselhorst (Tex. Civ.), 26 S. W. 
762, both reaffirming rule; Supreme Commandery v. Rose, 62 Tex. 322, 
presuming demurrer waived, where no action thereon shown by record. 

Deposition is Inadmissible when taken by officer who is surety on 
party's bond for costs. 

• Approved in McMahan v. Yeasey (Tex. Civ.), 60 S. W. 333, reaffirm- 
ing rule; Blum v. Jones, 86 Tex. 495, 25 S. W. 695, deposition taken 
by employee of witness should be suppressed; Rice v. Ward, 93 Tex. 
537, 56 S. W. 749, suppressing depositions where notary coached wit- 
nesses. 

Line Acquiesced in by Adjoining Owners is presumed to be the 
correct boundary. 

Approved in Lagow v. Glover, 77 Tex. 451, 14 S. W. 143, Koenigheim 
V. Sherwood, 79 Tex. 513, 16 S. W. 25, Bohny v. Petty, 81 Tex. 529, 
17 S. W. 82, Medlin v. Wilkins, 60 Tex. 413, Mullaly v. Noyes (Tex. 
Civ.), 26 S. W. 145, all applying rule in determining boundary; Miller 
V. Mills Co., Ill Iowa, 660, 82 N. W. 1040, Goddard v. Parker, 10 Or. 
107, King v. Mitchell, 1 Tex. Civ. 704, 21 S. W. 52, all upholding 
acquiesced in line as true boundary. See note, 67 Am. Dec. 620. 

Instruction Already Substantially GlTen need not be repeated. 

Approved in De Perez v. Everett, 73 Tex. 434, 11 8. W. 389, re- 
versing where undue prominence given principle by repetition in 
charge; Austin City Water Co. v. Capital Ice Co., 1 Tex. Ap. Civ. 642, 
refusing to reverse for harmless refusal of instruction. 

It is Peculiar Province of Jury to decide upon credibility and weight 
of conflicting testimony. 

Approved in Williams v. Ford (Tex. Civ.), 27 S. W. 724, reaffirming 
rule; Vogt v. Geyer (Tex. Civ.), 48 S. W. 1103, applying rule in a 
boundary case; G. C. & S. F. Ry. v. Holt, 1 Tex. Ap. Civ. 480, refusing 
to disturb verdict on conflicting testimony. 

28 Tez. 345-347, NEIL ▼. BAKER. 

On Error by One Defendant not served, judgment on notes will be 
reversed as to both, although plaintiff in error waived service by in- 
sufficient agreement. 

Approved in Bradley v. Harwi, 2 Kan. Ap. 278, 42 Pac. 413, holding 
agreement before filing of suit, for venue and appearance, does not 
dispense with service of process; Booth v. Holmes, 2 Posey U. C. 233, 
reversal as to one defendant effects reversal as to all. 

28 Tex. 347-367, BALI«ABD V. PERRY. 

Codefendant, Claiming not Only Under Common Source of Title 
with others, but also independently of them, is entitled to severance. 

Approved in Clay Co. Land etc. Co. y. Wood, 71 Tex. 464, 9 S. 



«1 NOTES ON TEXAS EEPOBTS. 28 Tex. 368-371 

W. 342, and Snider t. Methyin, 60 Tex. 490, both allowing sever- 
ance after joint answer hj defendants; Boonville Nat. Bank v. 
Blakej, 166 Ind. 449, 76 N. £. 535, where complaint wrongfully 
joined in same bill six di£ferent causes against distinct defendants, 
it was abuse of discretion to refuse separate trial; Boone v. Hulsey, 
71 Tex. 184, 9 S. W. 535, after severance there may be independent 
final judgments. 

Depositloiis Should be Admitted, where certificates of officers show 
substantia], though not literal, compliance with statute. 

Approved in H. ft T. 0. By. v. Larkin, 64 Tex. 457, and Knox- 
ville etc. Ins. Co. v. Hird, 4 Tex. Civ. 86, 23 S. W. 394, both hold- 
ing deposition sufficient, although names are abbreviated; Missouri 
etc. By. V. Hennesey, 20 Tex. Civ. .320, 49 8. W. 919, holding cer- 
tificate that depositions were sworn to and subscribed to sufficient. 

Where Defaidante Bely on Outstanding Title to defeat plaintiff, 
latter may show acquisition thereof after suit. 

Approved in Strickland v. Hardwicke, 3 Tex. Civ. 327, 22 8. W. 
.541, defense of outstanding title fails if party disclaims interest; 
Sinsheimer v. Kahn, 6 Tex. Civ. 148, 24 S. W. 535, wife can prove 
land separate property, against attaching creditor of husband. 

Where Court In Overmling objection to a deed in evidence cor- 
rectly announces the purpose for which it is receivable, if on final 
Kubmission opposing party desires an instruction as to its efifect, 
he should request it. 

Approved in Watson v. Winston (Tex. Civ.), 43 S. W. 854, special 
instruction not to consider part of a written instrument properly 
admitted should be requested by party desiring it. 

Where Deed In Evidence is certified copy of record, it is presumed 
that notarial seal was on original, though not indicated on copy. 

Approved in Alexander v. Houghton (Tex. Civ.), 26 S. W. 1103, 
reaffirming rule; Hines v. Thorn, 57 Tex. 104, admitting certified 
copy from land office of lost deed; Coffey v. Hendricks, 66 Tex. 677, 
679, 2 S. W. 47, 48, Summer v. Mitchell, 29 Fla. 218, 30 Am. St. Bep. 
122, 10 So. 570, and Witt v. Harlan, 66 Tex. 661, 2 S. W. 41, all 
admitting record copy of deed without representation of seal. See 
note, 41 Am. Dec. 173. 

Entry Under Superior Title Oives Constructive Possession of entire 
parcel, but entry by another is ouster to the extent of his actual 
and exclusive occupation. 

Approved in Parker v. Bains, 59 Tex. 18, affirming rule. 

Letter is Inadmissible where only proof of its authenticity is that 
signature resembled admittedly genuine signature of same writer. 

See note, 62 L. B. A. 858. 

28 Tez. 368-371, COVXNGTON v. BUBI.ESON. 

Citation must State Time of holding court at which defendants 
are cited to appear. 

Approved in Hunt v. Schrieb, 37 Tex. 632, dismissing writ of error 
where citation directs appearance at term not known to law; Butta 
V. Laffera, 1 Tex. Ap. Civ. 471, holding citation naming wrong court 
defective; Davidson v. Heidenheimer, 2 Posey U. C. 492, reversing 
for citation not stating time of holding court. 

After Default on Citation stating impossible time, defendant may 
avail himself of defect on writ of error in supreme court. 
2 Tex. Notes— 6 



28 Tex. 371-382 NOTES ON TEXAS BEPORTa 82 

Approved in James v. Proper, 1 Tex. Ap. Civ. 36, applying rule 
where citation commanded answer before date of service; Booth v. 
Holmes, 2 Posey U. C. 233, Stewart v. Arlege, 1 Tex. Ap. Civ. 361, 
both reversing default rendered on defective citation; Caspary v. 
Greely etc. Grocer Co., 3 Tex. Ap. Civ. 219, applying rule to garnish- 
ment requiring answer on day prior to service. See note, 47 Am. 
Dec. 657. 

Each Defendant most be Served personally with a copy of petition 
and citation. 

Approved in Schramm v. Gentry, 64 Tex. 144, Fulton v. State, 
14 Tex. Ap. 33, McDowell v. Nicholson, 2 Tex. Ap. Civ. 203, Ruther- 
ford v. Davenport, 4 Tex. Ap. Civ. 417, 16 S. W. Ill, and Willis 
v. Bryan, 33 Tex. 429, all reversing default judgment where sepa- 
rate service of citation does not appear; Rodgers v. Green, 33 Tex. 
663, reversing where return does not name defendant served. 

Distinguished in Polnac v. State, 46 Tex. Cr. 72, 80 S. W. 382, 
where return shows service on three different days, it will not be 
assumed that same party was served on each day. 

In Suit on Note executed by husband and wife, judgment against 
wife is erroneous, in absence of averment showing her separate lia- 
bility. 

Approved in Rhodes v. Gibbs, 39 Tex. 440 (rehearing S. C, 39 
Tex. 433, 444), holding wife can encumber separate property for hus- 
band's prior debt; Harris v. Williams, 44 Tex. 126, holding wife liable 
for rent of house used by family; Burke v. Purifoy, 21 Tex. Civ. 
206, 50 S. W. 1091, holding wife not necessary party to action on 
contract unconnected with her separate property; Grand Island 
Banking Co. v. Wright, 53 Neb. 583, 74 N. W. 85, to hold wife 
liable on note, plaintiff must show its execution in reference to her 
separate property; Brown v. Farmers' etc. Nat. Bank, 88 Tex. 272, 
31 S. W. 287, 33 L. R. A. 359, arguendo; Wheeler v. Burks (Tex. 
Civ.), 31 S. W. 434, judgment against married woman as indorser 
or guarantor of note is erroneous, unless for benefit of her separate 
estate; Hawkes v. Robertson (Tex. Civ.), 40 S. W, 549, wife is not 
liable for note unless given for necessaries furnished herself or chil- 
dren, or for benefit of her separate estate. See note, 55 Am. Dec 
603. 

28 Tex. 371-382, 91 Am. Dec 321, THURMOND ▼. TRAMMELL. 

Verbal Statements as to ownership of personal property are ad- 
missible to defeat claim of adverse possession. 

Approved in Goldfrank v. Young, 64 Tex. 435, holding adverse 
possession for statutory period vests title in holder; Texas Western 
Ry. V. Wilson, 83 Tex. 157, 18 S. W. 326, disallowing limitation 
where railroad acknowledged owner's right in land; Warren t. 
Frederichs, 83 Tex. 384, 18 S. W. 752, holding possession held under 
arrangement with owner not adverse. 

Wliere Adverse Possession of personal property has been of suffi- 
cient duration to make limitations available, an acknowledgment 
of title to the property, unaccompanied by intention to submit to it 
will not defeat the bar of the statute. 

Approved in McLane v. Canales (Tex. Civ.), 25 S. W. 31, mere 
fact that person in adverse possession of land for fifteen years offers 



83 NOTES ON TEXAS BEPORTS. 28 Tex. 383-419 

to buy paper title to part thereof will not defeat his adverse posses- 
sion. 

It Seems That Title to Personal Property may be acquired by ad- 
Terse and hostile possession thereof. 

Approved in Bowyer v. Robertson (Tex. Civ.), 29 S. W. 917, ex- 
clusive adverse possession of personal property for two years vests 
title. 

Witness to Testimony given at former trial need not repeat precise 
words. 

See note, 91 Am. St. Rep. 205. 

28 Tex. 383-419, BT7SLES0N ▼. BX7BLES0N. 

Under Three Years' Statute of Limitations adverse possession by 
joint tenants is as efifectual as though each claimed in severalty. 

Approved in Newman v. Bank of California, 80 Cal. 371, 13 Am. 
St. Rep. 170, 22 Pac. 261, 5 L. R. A. 467, judgment for one tenant 
in ejectment determines right to possession of entire premises. 

Depositicm of Defendant's Vendor taken before he became a party 
is admissible. 

Approved in Lobdell v. Fowler, 83 Tex. 350, admitting deposi- 
tions of persons competent to testify when taken; Doughty v. State, 
18 Tex. Ap. 196, 51 Am. Rep. 306, admitting deposition taken before 
indictment of witness. See note, 65 Am. Dec. 109. 

After Jury Returns with finding on special issues and general ver- 
dict, other special issues cannot be submitted to them. 

Approved in McKelvey v. Ches. etc. Ry., 35 W. Va. 507, 14 S. 
E. 264, withdrawal of interrogatories after deliberation thereon by 
jury is error, although submitted after argument and charge; Ham- 
mond V. Coursey, 2 Posey U. 0. 32, arguendo. 

Instraction That Husband's Sale of community headright certifi- 
cate creates outstanding paramount title against wife's heirs, is er- 
roneous. 

Cited in dissenting opinion in Yancy v. Batte, 48 Tex. 75, 76, 
majority awarding recovery to wife's heirs of half of community 
land sold by surviving husband. 

Defense of Outstanding Paramount Title is valid to suit of tres- 
pass to try title, but not in equitable proceeding for partition. 

Approved in Gullett v. O'Connor, 54 Tex. 416, only parties con- 
nected with prior equitable claim to land can impearh patent; 
Adams v. House, 61 Tex. 641, admitting proof of superior, outstand- 
ing title to bar recovery; Nash v. Simpson, 78 Me. 151, 3 Atl. 58, 
awarding partition at suit of claimant under will; McKie v. Simp- 
kins, 1 Tex. Ap. Civ. 115, arguendo; Coleman v. Reavis (Tex. Civ.), 
34 S. W. 646, in trespass to try title defendant may defeat recovery 
by showing superior outstanding legal title; Pool v. Foster (Tex. 
Civ.), 49 S. W. 924, defendant may show outstanding legal title 
without connecting himself therewith in trespass to try title. 

Distinguished in Shields v. Hunt, 45 Tex. 428, outstanding equity 
in land unconnected with defendant cannot be pleaded in defense; 
Cooper v. Pox, 67 Miss. 242, 7 So. 343, holding partition will be 
defeated by showing outstanding title. 

Where Person Intentionally acts to make another believe he has 
no rights, and latter acts trusting thereto, former is estopped from 
asserting rights. 



28 Tez. 383-410 NOTES ON TEXAS BEPOBTS. 84 

Approved in Page t. Amim, 29 Tex. 70, holding no estoppel by 
failure to assert right to land for ten years, where no adverse pos- 
session; Walker v. Howard, 34 Tex. 510, holding defendant in par- 
tition estopped to deny his vendor's title; Turner v. Phelps, 46 Tex. 
262, holding mortgagee not estopped from enforcing rights, although 
alleging mortgage to be worthless; Mayer v. Bamsey, 46 Tex. 375, 
maintaining estoppel against plaintiff who represented vendor as 
owner of land; Peters v. Clements, 52 Tex. 143, holding no estoppel 
where party was not influenced by representations; Byrnes v. Morris, 
53 Tex. 219, bidder for creditor at execution sale cannot claim es- 
toppel against subsequent sale; Fielding v. Du Bose, 63 Tex. 636, 
maintaining estoppel against mortgagee representing land free from 
liens; De La Vega v. League, 64 Tex. 217, holding party to partition 
estopped from subsequently asserting superior title against another 
party; Equitable etc. Co. v. Norton, 71 Tex. 689, 10 S. W. 304, parties 
procuring loan on land by representing it as not homestead cannot 
thereafter assert homestead; Wortham v. Thompson, 81 Tex. 350, 
16 S. W. 1060, holding no estoppel where purchaser knew all facts 
and was not deceived; Security etc. Trust Co. v. Caruthers, 11 Tex. 
Civ. 441, 32 S. W. 843, mortgagee's assent to erection of building 
does not estop him to claim superiority of lien; Stranger v. Dorsey, 
22 Tex. Civ. 576, 55 S. W. 130, owner of property is not estopped 
by failure to notify intending purchasers; Attaway v. Carter, 1 Posey 
U. C. 77, holding purchaser estopped from claiming release of vendor's 
lien where he withheld notice from transferee of note; Larkin v. Mead, 
77 Ala. 491, debtor representing title to property in surety is estopped 
to deny it; Lewis v. Alexander, 51 Tex. 587, arguendo; Stewart v. 
Crosby (Tex. Civ.), 26 S. W. 140, instance where record title holder, 
ignorant of his title, was estopped by advising a lender that loan 
applicant had good title; Wbitselle v. Texas Loan Agency (Tex. 
Civ.), 27 S. W. 315, holding director of corporation active in procuring 
loan under representations that it will be first lien estopped from 
asserting prior lion. 

Distinguished in Lewis v. Brown, 39 Tex. Civ. 142, 87 S. W. 705, 
where representation did not induce action. 

Where Surviving Husband sold community land certificate, patent 
subsequently issued to vendee constitutes title from sovereignty of 
soil to support three years' limitation. 

Approved in League v. Began, 59 Tex. 432, patent issued on forged 
transfer of certificate will support three years' limitation; Grigsby 
V. May, 84 Tex. 249, 19 S. W. 345, maintaining limitation where pos- 
session held under patent although others had superior right. See 
note, 80 Am. Dec. 652. 

In Texas, Husband has possession and management of wife's prop- 
erty, and suit against him for land stops running of limitation in 
wife's favor. 

Approved in Allen v. Bead, 66 Tex. 20, 17 S. W. .117, applying 
rule; Kempner v. Huddleston, 90 Tex. 187, 37 S. W. 1068, holding 
wife not negligent in leaving note with husband, and may recover 
it after fraudulent transfer. 

Distinguished in Read v. Allen, 56 Tex. 194, judgment against 
husband alone cannot devest wife of title to her separate property; 
Owen V. New York etc. Land Co., 11 Tex. Civ. 292, 32 S. W. 1059, 
husband cannot convey wife's title to land; Owens v. New York etc. 
Land Co. (Tex. Civ.), 32 S. W. 1059, judgment against husband alone 



85 NOTES ON TEXAS BEP0RT8. 28 Tex. 420-425 

in suit to which wife was not party eannot devest wife's title to her 
separate property. 

In Suit to Becover Land limitation is not suspended against ven- 
dees of plaintiffs until they intervene. 

Approved in Bean v. Dove, 33 Tex. Civ. 381, 77 S. W. 244, interven- 
tion did not stop running of statute as to interveners not in .privity; 
Stovall V. Carmichael, 52 Tex. 390, suit by one part owner does not stop 
running of statute as to other; Uhl v. Musquez, 1 Posey U. C. 660, 
holding amendment making new parties defendant a new suit as to 
them. 

Distinguished in Dillingham v. Bryant, 4 Tex. Ap. Civ. 43, 14 
S. W. 1018, action commenced against one of two joint receivers 
arrests running of statute as to both; Dillingham v. Bryant (Tex. 
Ap.), 14 S. W. 1018, commencement of action against one of two 
joint receivers arrests limitations as to both. 

Bights of Wife's Heirs attach only to community property remain- 
ing after payment of community debts. 

Approved in Johnson v. Harrison, 48 Tex. 266, Magee v. Bice, 
37 Tex. 500, both holding surviving husband cannot by sale devest 
children of community property interest inherited from wife; Wil- 
son V. Helms, 59 Tex. 682, upholding survivor's sale of community 
property to pay community debts; Carter v. Conner, 60 Tex. 59, 
upholding execution sale of community property for community 
debt after wife's death; Stephens v. Shaw, 68 Tex. 264, 4 S. W. 
460, refusing recovery of land from deceased spouse without ac- 
counting to heirs for money received. See note, 73 Am. Dec. 235. 

Distinguished in McBeynolds v. Bowlby, 1 Posey U. C. 456, hold- 
ing land granted to colonist after wife's death separate pioperty; 
Gamer v. Thompson, 2 Posey U. C. 235, holding settlement land 
granted to husband irrespective of marriage separate property. 

If Child has Been AdTanced his share in community property, he 
cannot subsequently recover as wife's heir. 

Approved in Sparks v. Spence, 40 Tex. 698, holding conveyance 
of community property by father to children presumed in discharge 
of children's interest; Bandolph v. Junker, 1 Tex. Civ. 523, 21 S. 
W. 553, refusing recovery to wife's heir against surviving husband's 
grantee, where husband granted plaintiff compensatory land. 

If Bights of Wife's Heirs can be satisfied from other portions of 
community property, purchaser from surviving husband will be pro- 
tected. 

Approved in Wilson v. Helms, 59 Tex. 683, upholding authorized 
sale of community property, where heir's interest can be obtained 
from other land; Von Bosenberg v. Perrault, 5 Idaho, 727, 51 Pac. 
776, where surviving husband sold community property, in suit by 
children against purchaser brought eight years after sale, existence 
of debts and necessity for sale presumed. 

28 Tez. 420-425, LAOOSTB-T. CHIEF JUSTICE. 

Statements of Party in deposition taken in another suit are admis- 
sible against him in suit where he is a party. 

Approved in Edwards v. Norton, 55 Tex. 411, irregular deposition 
admitted as admissions on proof of handwriting; Parker v. Chan- 
cellor, 78 Tex. 526y 15 S. W. 158, irregular deposition on proof of 
subscription allowed as admission; Watson v. Winston (Tex. Civ.), 



28 Tex. 425-443 NOTES O^ TEXAS REPORTS. 86 

43 S. W. 854, admissions in a deposition may be read without reading 
the whole deposition. 

Statement of Administrator after close of administration, not in 
course of official duty, is not admissible against his surety. 

Distinguished in Keowne v. Love, 65 Tex. 158, admissions of ad- 
ministrator admissible when part of res gestae. See note, 18 Adl 
Dec. 515. 

28 Tex. 425-429, OIJ>HAM ▼. SPARKS. 

Attorney is Liable to Olient for gross neglect in failing to collect 
claim. 

Approved in Patterson v. Prazier (Tex. Civ.), 70 S. W. 1080, negli- 
gent causing of dismissal of action, when barred by limitations; 
Fox V. Jones, 4 Tex. Ap. Civ. 49, 14 S. W. 1007, holding attorney 
liable for failure to sue on note before barred by limitation; Fox 
V. Jones (Tex. Ap.), 14 8. W. 1007, attorney liable where he failed 
to sue on note before it became barred or uncollectible. See note, 
34 Am. Dec. 91. 

Petition for Certioraxi Should Show all the evidence, or any ma*- 
terial error in the proceedings, or that injustice has resulted, or that 
petitioner was unable to avail himself of his legitimate defense. 

Reaffirmed in Nelson v. Hart (Tex. Civ.), 23 S. W. 833. 

28 Tex. 429-443, WOODS ▼. DUBBETT. 

Oonrt Takes Judicial Notice of act of 1853, creating Mississippi 
and Pacific Bailroad reserve. 

Approved in Duren v. Houston etc. By., 86 Tex. 290, 24 8. W. 
258, reaffirming rule; Hall v. Bushing, 21 Tex. Civ. 633, 54 S. W. 32, 
taking notice that definitely described tract is within reservation 
made by legislature. 

No Bights Arise from Survey on reserved lands. 

Approved in Eyl v. State, 37 Tex. Civ. 311, 84 S. W. 612, patents 
issued to locators of veteran certificates on school land conferred 
no superior rights; McCaleb v. Rector (Tex. Civ.), 78 S. W. 957, 
hoMing void location on vacancy less than six hundred and forty acres 
in extent; Gammage v. Powell, 61 Tex. 633, location under land certi- 
ficate cannot bar right of pre-emptioner in possession of homestead; 
Winsor v. O'Connor, 69 Tex. 579, 8 S. W. 523, cancellation of patent 
•does not invalidate on "land titled." 

Petition Setting Out Claim on invalid survey may be amended 
to include patent received pendente lite. 

Approved in Port Worth etc. Mills Co. v. Milam, 1 Tex. Ap. 
Civ. 97, allowing new cause of action by amendment, where suit 
prematurely brought. 

Only Party With Older and Superior Equity can question patent 
baned on void survey. 

Approved in Bryan v. Shirley, 53 Tex. 457, patent to one not 
colonist not set aside at suit of one without equities; McLeary v. 
Dawson, 87 Tex. 535, 29 S. W. 1046, only state or those with prior 
equities can question patent. 

Land Within I^imits of Peters' Colony was not subject to appro- 
priation by pre-emption. 

Approved in Stewart v. Cook, 62 Tex. 523, location thereon abso- 
lutely void. 

Distinguished in Bryan v. Shirley, 53 Tex. 451, patent to one not 
colonist good against one without equities at grant. 



87 NOTES ON TEXAS EEPORTS. 28 Tex. 443-473 

One Failinif to Perfect HiB Bight Wltliin Time limited by law has 
no title against patentee. 

Approved in Young v. O'Neal, 54 Tex. 549/ even though he did not 
know the land was vacant. 

Ruling, Which Conld in No Way Affect Besalt of case, will not be 
revised. 

Approved in Glasscock ▼. Hamilton, 62 Tex. 153, applied where 
no prejudice arises from sustaining exceptions to part of answer; 
McReynolds v. Bowlby, 1 Posey U. C. 464, applying rule and affirm- 
ing judgment. 

28 Tex. 443-448, MOKE ▼. BBACKETT. 

On the Administration of Community Property, all power and con- 
trol of surviving wife ceases. 

Approved in Hollingsworth v. Davis, 62 Tex. 440, on grant of let- 
ters of administration wife's control over community ceases. 

Judgment in favor of or against a feme sole is erroneous. 

See note, 70 Am. Dec. 314. 

Where Character of Party is Changed, judgment is only voidable 
and may be corrected by proceeding in nature of writ of error coram 
nobis in the court committing the error. 

Approved in Giddings v. Steele, 28 Tex. 755, 91 Am. Dee. 344, 
applied where death of party is suggested but legal representative 
not made a party; Pullen v. Baker, 41 Tex. 421, judgment set aside 
reinstating case on docket and making representative party; Milam 
Co. V. Robertson, 47 Tex. 233, applied when party was supposed to be 
alive; Taylor v. Snow, 47 Tex. 465, 26 Am. Rep. 312, that judgment 
was rendered after death cannot defeat title to land acquired under 
execution; Sanders v. State, 85 Ind. 326, 44 Am. Rep. 35, applied 
where defendant has pleaded guilty under coercion. See notes, 49 
L. R. A. 160, 161, 174^ 18 L. R. A. 841. 

Judgment Rendered against surviving wife enjoined and certified 
to probate court for allowance against deceased husband. 

Approved in Laughter v. Seela, 59 Tex. 185, district court enjoins 
sale, rendering estate of minor insolvent, to pay partition costs. 

28 Tex. 448-451, BI.ANEENSHIP ▼. BEBBT. 

Demand for Property may be made by authorized agent, but de- 
fendant may refuse if not satisfied with the authority. 

Approved in Foster , v. State, 22 Ind. Ap. 475, 53 N. E. 1096, de- 
mand by city treasurer for city money from predecessor is sufficient; 
Sandford v. Wilson, 2 Tex. Ap. Civ. 190, awarding recovery against 
stable-keeper unjustifiably refusing to deliver horse to true owner. 

The Becord must Disclose the fraud. 

Approved in Baines v. Mensing, 75 Tex. 203, 12 S. W. 985, fraud 
must be specifically alleged. 

A Judgment Should Conform to the verdict. 

Approved in Filgo v. Citizens' Nat. Bank (Tex. Civ.), 38 S. W. 238, 
judgment foreclosing lien on twenty-four head of cattle, where ver- 
dict is for twenty-three only, is improper. 

Miscellaneous. — ^Burnett v. Burriss, 39 Tex. 504, without applica- 
tion. 

28 Tex. 452-473, WBIOHT v. HAWKINS. 

Survey of Iiaad within Mississippi and Pacific Bailroad reserve is 
void. 



28 tcx. 452-473 NOTES ON TEXAS EEPOETS. 8» 

Approved in Rtewart v. Cook, 62 Tex. 523, location on Peters' 
colony reservation is void; Perry v. Coleman, 1 Posey U. C. 316,, 
318, holding land occupied by delinquent pre-emptors not subject 
to location where statute extended time. 

Distinguished in Bryan ▼. Shirley, 53 Tex. 451, 452, such patent 
not held void in suit of one without equities before its issuance. 

Locatioii on Unappropriated Ziand gives equitable title secured 
by constitutional guaranties for protection of private property. 

Approved in Burleson ▼. Durham, 46 Tex. 157, De Montel v. Speed,. 
53 Tex. 342, and Monroe Cattle Co. v. Becker, 147 U. S. 58, 37 L. 77, 
13 Sup. Ct. Bep. 221, all holding equitable owner may enforce rights 
against claimant under patent. See note, 11 Am. Dec. 781. 

Though State Betains Legal Title, legislature may not dispose of 
public domain irrespective of equitable rights thereto. 

Approved in White v. Martin, 66 Tex. 345, 17 S. W. 729, act of 
1883 cannot retroact as against another title; Cox v. Houston etc 
By., 68 Tex. 231, 4 S. W. 458, ratification of illegal survey is not good 
against intervening survey; Udell v. Peak, 70 Tex. 652, 7 S. W. 
788, statute of limitation runs against legal survey and location 
under valid certificate; Gracey v. Hendrix, 93 Tex. 31, 51 S. W. 
848, change of law to meet applications not complying with existing- 
law does not inure to their benefit; Finders v. Bodle, 58 Neb. 61, 78 
N. W. 481, curative legislation does not operate against purchaser, 
in good faith and for value; dissenting opinion in Jones v. Lee, 86' 
Tex. 41, 22 S. W. 394, majority holding administratrix may not 
abandon survey. 

Distinguished in Blum v. Houston etc. By., 10 Tex. Civ. 317, 31 
S. W. 528, legislature may validate survey not made by proper 
surveyor; Hade ▼. McVay, 31 Ohio St. 241, repeal of statute creating 
penalty takes away right to enforce it. 

ConrtB Take Judicial Notice of Oonnties^ and that an entire county 
lies within a reservation. 

Approved in Zimmerman v. Brooks, 118 Ky. 1(M, 80 S. W. 446,. 
applying rule to boundariea of counties and state surveys; Duren v. 
Houston etc. By., 86 Tex. 290, 24 S. W. 258, courts take notice of 
reservation of all public land in Van Zandt county; Wood v. Fowler, 
26 Kan. 687, 40 Am. Bep. 332, taking notice of navigability of large 
rivers. See notes, 89 Am. Dec. 665; 89 Am. Dec. 666; 89 Am. Dec. 
676, 677; 82 Am. St. Bep. 445; 4 L. B. A. 39, 44. 

Although the Oourts Take Judicial Notice of the Mississippi and 
Pacific Bailroad reserve, still it is incumbent on a claimant to show 
that his survey is situated within such reservation. 

Approved in Hill v. Grant (Tex. Civ.), 44 S. W. 1019, courts cannot 
take judicial notice of the date of organization of a county; hence 
recordation in wrong county must be shown where new county has 
been organized from old one. See note, 4 L. B. A. 36. 

It Seems That Oourte may Take Judicial Cognizaiice of the rudi- 
mental principles of natural science, and of the geographical posi- 
tions of counties. 

Approved in Western Union Tel. Co. v. Smith (Tex. Civ.), 30 S. 
W. 938, jury may assume that a person could travel thirty miles- 
in less than two days by railroad and go nine miles in the country 
in less than half a day. 



89 NOTES ON TEXAS REPORTS. 28 Tex. 478-503 

28 Tex. 478-487, 91 Ant Dee. 328, DE LA GABZA T. BOOTH. 

Recovery of Penalty Against Sheriff for failure to pay over money 
must follow the mode prescribed by the statute. 

Approved in De La Garza v. Carolan, 31 Tex. 391, and Scogins 
V. Perry, 46 Tex. 113, both reaffirming rule; Murray v. G. C. ft 
S. F. R. R., 63 Tex. 413, and Schloss v. Atchison etc. Ry., 85 Tex. 
604, 22 S. W. 1015, both applying statutory remedy for freight 
overcharges; State v. Vinson, 5 Tex. Civ. 318, 23 S. W. 808, liquor 
dealer's bond for penalty for gaming is strictly construed; Texas etc. 
R. R. V. Wood (Tex. Civ.), 23 S. W. 745, penalty for detention of 
goods after tender, legal freight charges must be proven from data 
in bill of lading. 

Demand is Necesaary to charge sheriff with failure to pay over 
money collected on execution. 

Approved in Butler v. Smith, 20 Or. 131, 25 Pac. 382, arguendo. 
See note, 5 L. R. A. 532. 

Sheriff cannot Discharge Himself from liability for money re- 
ceived on execution by paying it over to the clerk. 

Approved in Brown ▼. People, 3 Colo. 119 (concurring opinion 3 
Colo. 124), reaffirmed. 

28 Tez. 488-491, OUNKINOHAM ▼. PERKINS. 

Writ of Error loses its force by failure to file record in proper 
time. 

Approved in Wilson v. Adams, 50 Tex. 13, affirming judgment on 
certificate. 

Statute Excluding Certain Period from Statute of Limitations does 
not extend time for filing transcript of record in supreme court. 

Approved in Walker v. Taul, 1 Tex. Ap. Civ. 19, and Cotton v. 
Jones, 37 Tex. 36, both holding absence of executor from state 
does not suspend time for suing on claim; Best v. Nix, 6 Tex. Civ. 
352, 25 S. W. 131, and McAnear v. Epperson, 54 Tex. 226, both 
holding act suspending statute of limitation does not apply to time 
for taking writ of error. 

28 Tex. 491-497, SEAL v. STATE. 

Instruction, abstractly correct, need not be given when not au- 
thorized by the testimony. 

Approved in Bishop v. State; 43 Tex. 396, and Haynes v. State, 
2 Tex. Ap. 87, both reversing for material misdirection not excepted 
to; Mace v. State, 9 Tex. Ap. 113, charge first excepted to on motion 
for new trial not reversed unless prejudicial. . 

Where It Does not Appear That Charges asked were refused, it 
must be presumed they were given as asked. 

Approved in Johnson v. State, 7 Tex. Ap. 212, and Evans v. State, 
13 Tex. Ap. 242, both reaffirming rule. 

Where Evidence is Conflicting, and trial judge refuses to set aside 
verdict, it is not disturbed on appeal. 

Approved in Williams v. State, 41 Tex. 213, Brown v. State, 1 
Tex. Ap. 158, Jones v. State, 5 Tex. Ap. 87, and Temple ton v. State, 
5 Tex. Ap. 415, all reaffirming rule. 

28 Tez. 497-603, SMITH T. AlaLEN. 

Party Desiring to Intervene must show that his rights are in- 
volved, and petition must be filed in time to enable parties to contest 
issues. 



28 Tex. 503-535 NOTES ON TEXAS REPORTS. 90 

Approved in Whitman v. Willis, 51 Tex. 426, disallowing inter- 
vention for want of direct interest; Pool v. Sanford, 52 Tex. 534, 
allowing materialman to intervene in suit to foreclose mechanic's 
lien; Jones v. Smith, 55 Tex. 387, in suit between vendee of pur- 
chaser at sherifiF sale and heirs, purchaser, having given warranty, 
may intervene; Hanna v. Drennan, 2 Posey U. C. 539, adminis- 
tratrix of deceased partner can intervene in unauthorized suit by 
surviving partner; Jaffray v. Meyer, 1 Tex. Ap. Civ. 790, assignee 
of goods levied on by attachment against asgignor cannot inter- 
vene; Snow V. Texas etc. B. R., 4 Woods, 396, 16 Fed. 2, order of 
court not necessary to make parties; Johnston v. Luling Mfg. Co. 
(Tex. Civ.), 24 S. W. 998, mortgagee not in possession at time of levy 
may intervene by leave of court. See notes, 15 Am. Dec. 162; 16 
Am. Dec. 180; 123 Am. St. Rep. 289, 295. 

In Absence of Statement of Facts, everything susceptible of proof 
under pleadings is deemed proved. 

See note, 60 Am. Dec. 219. 

28 Tex. 503-520, CHEBBT ▼. SPEIGHT. 

Soundness of Edward ▼. Taney, 27 Tex. 224, is questionable. 

Approved in Gibbs v. Belcher, 30 Tex. 82, action arising from 
personal injury dies with person; March v. State, 5 Tex. Ap. 453, 
death pending appeal in criminal cases abates the fine. 

Question of Effect of Appeal on Judgment is determined by law of 
state where judgment is had and appeal taken. 

Approved in Faber v. Hovey, 117 Mass. 108, 19 Am. Rep. 399; 
reaffirmed in dissenting opinion, Thomas v. Morrisett, 76 Ga. 418, 
majority holding mortgage on lands administered according to laws 
of domicile. 

Foreign Administrator cannot Sue to collect choses in action or 
present claim, unless judgment has been rendered in his favor. 

Approved in Summerhill v. McAlexander, 1 Tex. Ap. Civ. 308, 
and Terrell v. Crane, 55 Tex. 82, both disallowing suit by foreign 
administrator; Carrigan v. Semple, 72 Tex. 308, 12 S. W. 179, no 
rights against local administrator unless he holds assets; Robertson 
V. Stead, 135 Mo. 142, 58 Am. St. R«p. 573, 36 S. W. 611, 33 L. R. A. 
203, allowing foreign receiver to maintain replevin; dissenting opin- 
ion, Humphreys v. Hopkins, 81 Cal. 560, 22 Pac. 895, 6 L. R. A. 792, 
majority disallowing foreign receiver to replevy property; Hynes 
V. Winston (Tex. Civ.), 54 S. W. 1069, foreign administrator cannot 
maintain suit in such capacity. See notes, 65 Am. Dec. 176; 15 
Am. St. Rep. 79. ' ^ 

Foreign Judgment Against an Administrator is no ground for ac- 
tion against Texas administrator in absence of showing of assets in 
hands of local administrator. 

See note, 27 L. R. A. 102, 104. 

28 Tex. 523-535, CROSS ▼. EVERTS. 

Petition on Contrax;t Within Statute of Frauds need not allege 
that it is in writing. 

Approved in New York etc. Land Co. v. Dooley, 33 Tex. Civ. 637, 
77 S. W. 1031, and Carson Bros. v. McCord-Collins Co., 37 Tex. Civ. 
541, 84 S. W. 392, both reaffirming rule; Jones v. National Cotton 
Oil Co., 31 Tex. Civ. 424, 72 S. W. 250, buying cattle, material for 
pens, etc., does not take contract for feed out of statute; Fisher 



91 NOTES ON TEXAS REPORTS. 28 Tex. 523-535 

▼. Bowser, 41 Tex. 223, applied to appointment of agent to sell land; 
Lewis y. Alexander, 51 Tex. 585, holding allegations of authority 
of agent sufficient; Leasing v. Cunningham, 55 Tex. 235, applied to 
building contract; Gonzales v. Chartier, 63 Tex. 38, reaffirming prin- 
ciple; Robb V. San Antonio etc. Ry., 82 Tex. 395, 18 S. W. 709, 
applied to lease for over one year; Richerson v. Moody, 17 Tex. Civ. 
68, 42 S. W. 317, applied to allegation of agreement to convey land; 
Tinsley v. Penniman, 8 Tex. Civ. 498, 29 S. W. 176, statute of limi- 
tations applicable to parol contracts must be interposed by plea; 
Small V. Foley, 8 Colo. Ap. 446, 47 Pac. ^"^j applied to assignment 
of claim of mechanic's lien; Day v. Dal/ui (Tex. Civ.), 32 S. W. 
377, defense that contract was verbal and within statute of frauds 
cannot be interposed by demurrer where petition does not allege 
whether written or verbal. See notes, 16 Am. Dec. 149; 86 Am. Dec. 
685. 

Failure ot Married Woman to comply with statute renders deed 
void. 

Approved in West v. Clark, 28 Tex. Civ. 2, 66 S. W. 216, married 
woman cannot be compelled to make will; Fitzgerald v. Turner, 43 
Tex. 84, no defense that married woman used consideration during 
lifetime; Johnson v. Taylor, GO Tex. 364, instrument is not absolutely 
void for failure of officer to make proper certificate; Garcia v. lllg, 
14 Tex. Civ. 486, 37 S. W. 471, deed is an absolute nullity; Kincaid 
V. JoneSy 2 Posey U. C. 534, conveyance by married woman must 
conform with statutory requirements; Gardner v. Moore, 75 Ala. 
398, 51 Am. Rep. 455, equity corrects misdescription in married 
woman's deed. See notes, 58 Am. Dec. 117; 95 Am. St. Rep. 941; 10 
L. R. A. 220. 

Abandonment of Homestead before acquisition of new one can 
only be shown by most conclusive evidence. 

Approved in Ross v. McGowen, 58 Tex. 608, holding allegations 
of petition show there was no abandonment; Goff v. Jones, 79 Tex. 
576, 8 Am. St. Rep. 621, 8 S. W. 527, enforcing conveyance of aban- 
doned homestead; Marler v. Handy, 88 Tex. 427, 31 S. W. 638, 
deed of husband becomes good on selection of new homestead; 
Cox V. Harvey, 1 Posey tJ. C. 274, holding homestead not aban- 
doned without proof of wife's consent; Cantine v. Dennis (Tex. Civ.), 
37 S. W. 187, it must be abandoned with intention not to return. 
See notes, 60 Am. Dec. 608; 102 Am. St. Rep. 391. 

Refusal of Married Woman to comply with void promise to con- 
vey homestead does not give rise to action for fraud. 

Approved in Robert v. Ezell, 11 Tex. Civ. 178, 32 S. W. 363, may 
revoke a parol gift of land; Showers v. Robinson, 43 Mich. 512, 
5 N. W. 996, request by widow that party purchase land does not 
defeat her homestead; Schulz v. Schirmer (Tex. Civ.>, 49 S. W. 246, 
damages for breach of parol agreement for lease of real estate for 
term of five years are not recoverable. 

Wliere Husband Joins in Gontract With Wife to convey home- 
stead he is liable in damages, if conveyance cannot be enforced 
against her. 

Approved in Ley v. Hahn, 36 Tex. Civ. 210, 81 S. W. 355, re- 
affirming rule; Vaughn v. Butterfield, 85 Ark. 289, 122 Am. St. Rep. 
31, 107 S. W. 994, defendant, unable to secure his wife's relinquish- 
ment of dower, liable for breach of contract to furnish marketable 
title; Campbell t. Elliott, 52 Tex. 158, purchaser at forced sale of 



28 Tex. 535-565 NOTES ON TEXAS REPORTS. 02 

homestead gets no rights; Eberling y. Deutscher Yerein, 72 Tex. 342, 
12 S. W. 206, husband liable for improvements made in reliance on 
bond to convey; Barnett v. Mendenhall, 42 Iowa, 302, 303, no damages 
for breach of contract by husband to convey homestead. 

28 Tex. 536-543, STATE T. DTOHE& 

State's Attorneys are not entitled to commission for recovery of 
forfeitures remitted by governor. 

Approved in Smith v. Smith, 26 Tex. Ap. 51, 9 S. W. 275, reaffirm- 
ing rule. 

Distinguished in Ex parte Mann, 39 Tex. Or. 493, 73 Am. St. Rep. 
963, 46 S. W. 829, governor cannot remit the costs. 

28 Tex. 645-548, MOODT v. BENGE. 

Facts must be Distinctly ATerred in pleading, and not left to 
be supplied by inference. 

Approved in Loungeway v. Hale, 73 Tex. 497, 11 S. W. 538, 
allegation of execution imports delivery; Missouri etc. Ry. v. Hen- 
nessey, 75 Tex. 157, 12 S. W. 609, acts constituting negligence must 
be averred; Western Union Tel. Co. v. Henry, 87 Tex. 169, 27 S. W. 
64, in suit against telegraph for damages, delivery to company for 
transmission must be alleged; Alamo Fire Ins. Co. v. Davis (Tex. 
Civ.), 45 S. W. 605, petition not showing plaintiff's mortgage for 
any particular sum does not show suable interest in insurance policy 
on the property. 

Under Submission of Case upon suggestion of delay, judgment will 
be reversed for an error patent upon face of the petition. 

Approved in Wheeler v. Phillips (Tex. Civ.), 22 S. W. 543, such 
submission opens record to all material errors, whether assigned or 
not. 

Miscellaneous. — Dibrell v. Ireland, 1 Tex. Civ. 122, without appli- 
cation. 

28 Tex. 548.661, NIBLETT ▼. 8HELT0N. 

Default is admission of truth of facts charged, 

Approved in Bridges v. Reynolds, 40 Tex. 209, and Lewis v. Den- 
nis, 54 Tex. 490, both applied to suit on note; Mason v. Slevin, 1 Tex. 
Ap. Civ. 14, reaffirming rule. 

Jury is not Necessary In Action on note to enforce vendor's lico 
where default entered. 

See note, 20 L. R. A. (n. s.) 30. 

28 Tex. 652-665, SELF ▼. KINQ. 

Contract^ not uncertain, reduced to writing, cannot be varied by 
parol. 

Approved in Donley v. Bush, 44 Tex. 8, when ambiguous circum- 
stances may be used to show intent; Watrous v. McKie, 54 Tex. 
71, inquiry must be confined to meaning of words used; Belcher 
v. Mulhall, 57 Tex. 19, 20, excluding contemporaneous parol agree- 
ment; Rountree v. Gilroy, 57 Tex. 180, parol agreement that part 
payment to be made otherwise than in money is not admissible; 
Bruner v. Strong, 61 Tex. 557, disallowing prior conversations; 
Lynch v. Ortlieb, 70 Tex. 731, 8 S. W. 516, excluding representation 
of condition of building in absence of concealment or fraud; Ru- 
brecht v. Powers, 1 Tex. Civ. 285, 21 S. W. 320, errors in charge on 



93 NOTES ON TEXAS BEPOBTS. 28 Tex. 555-568 

issues raised hj verbal evidence are immaterial; Peak v. Blythe, 1 
Tex. Ap. Civ. 12, following rule; Shaw v. Parvin, 1 Tex. Ap. Civ. 154, 
admissible to explain ambiguity; History Co. v. Flint, 4 Tex. Ap. 
Civ. 378, 15 S. W. 914, admitted to show fraud; Bailey v. Bockwall 
County etc. Bank (Tex. Civ.), 61 8. W. 531, not allowing parol 
agreement that note could be partly paid by credit of certain debt; 
Roberts v. Snow, 27 Neb. 429, 43 N. W. 242, arguendo; Newman v. 
Blum (Tex. Sup.), 9 S. W. 179, refusing evidence of prior parol agree- 
ment to show that certain attorney's fees were part of claim trans- 
ferred. 

ETidence am to Value Being Conflicting, verdict of jury is not 
set aside. 

Approved in G. C. ft S. P. By. v. Holt, 1 Tex. Ap. Civ. 480, affirm- 
ing judgment irrespective of preponderance of evidence. 

Written Agreemmit may be Changed by verbal agreement based 
on a valuable consideration. 

Approved in Bruce v. Brown (Tex. Civ.), 25 8. W. 445, verbal agree- 
ment may be substituted for original written agreement. 

In Absence of Fraud or Bfistake, parol is not admissible that the 
written agreement does not express the true contract of the parties. 

Approved in Foote v. Frost (Tex. Civ.), 39 S. W. 329, in cattle 
contract, refusing to allow parol that others were not to be employed 
to procure cattle in certain portion of the county. 

28 Tez. 555^658, BBOWK ▼. BOBEBTSGN. 

Sheriff Must Show by Hi8 Betum the time and manner of serving 
citation. 

Approved in Sloan v. Batte, 46 Tez. 216, return must show date 
of execution. 

Return Showing Service of Citation on "Mrs. Brown" does not 
warrant default judgment against "Pamela Brown." 

Approved in Johnson v. Barthold, 43 Tex. 557, return of service 
on "B. C. H. Johnson," being same as petition, is sufficient; Hern- 
don V. Pugh, 46 Tex. 212, wrong middle initial is sufficient; Clark 
V. Wilcox, 31 Tex. 331, return properly naming party need not state 
he was defendant; Booth v. Holmes, 2 Posey U. C. 233, citation 
on "John B. Pavers" will not support default against "John B. 
Paver." 

It must Appear With Reasonable Certainty from the sheriff's 
return that the citation has been served on the party intended. 

Approved in Brooks v. Powell (Tex. Civ.), 29 S. W. 812, return of 
«ervice on party having same name as defendant is sufficient al- 
though not reciting service on him "in person." 

28 Tez. 560-n568, E3MBB0 T. HAMILTON. 

Statute of Umitationfl does not run till legal title is vested by 
patent or equitable title by location and survey on genuine certi- 
ficate. 

Approved in Sulphen v. Norris, 44 Tex. 245, limitation runs from 
date of location; Montgomery v. Gunther, 81 Tex. 325, 16 8. W. 
1075, no proof as to location or survey, limitation does not run till 
patent; Tarlton v. Kirkpatrick, 1 Tex. Civ. Ill, 21 S. W. 407, limita- 
tion could not run till location. 

Patent is EYidence of the genuineness of certificate on which patent 
issued. 



28 Tex. 569-583 NOTES ON TEXAS REPORTS. 94 

Approved in Buster ▼. Warren, 35 Tex. Civ. 651, 80 S. W. 1067, 
reaffirming rule; Bryan ▼. Shirley, 53 Tex. 460, defective certificate 
herein did not affect validity of patent; Shepard v. Avery, 89 Tex. 
307, 34 8. W. 441, presumed that facts authorized issue of patent; 
Schwab Clothing Co. v. Claunch (Tex. Civ.), 2^ S. W. 923, recitals 
in deed of trust by partnership, recognizing prior deed of trust by 
one member, estop the partnership. 

Charge Assuming that Defendant failed to establish certain facts 
is erroneous. 

Approved in Searcy ▼. State, 1 Tex. Ap. 443, instruction assum- 
ing commission of crime is error; Burcham v. Gann, 1 Posey U. C. 
345, charge on weight of evidence is error; Dawson v. Sparks, 1 
Posey U. C. 758, charge giving undue prominence to isolated facts 
should be refused; Hammond v. Coursey, 2 Posey U. C. 33, instruc- 
tion as to presumption not cured by stating it is no legal presump- 
tion. See note, 72 Am. Dec. 545. 

Recitals in Patent are legal evidence against the patentee. 

Approved in Brackenridge v. Howth, 64 Tex. 193, parties estopped 
by partition, though new patent issued to them; Willis v. Smith, 
72 Tex. 573, 10 S. W. 686, party estopped by recitals, in his title; 
Shortridge v. Allen, 2 Tex. Civ. 196, 21 8. W. 420, estopped by 
recitals; French v. Koenijg, 8 Tex. Civ. 348, 27 S. W. 1082, recitals 
held sufficient evidence of conveyance. 

28 Tex. 569-677. WALTON ▼. OOMPTON. 

To Recover Against Sheriff Failing to Make Levy, it must be 
shown that sheriff received execution that he was required to levy 
and neglected to do so. 

Approved in Lyendeeker v. Martin, 38 Tex. 289, following rule; 
Jacobs V. Shannon, 1 Tex. Civ. 400, 21 S. W. 388, plaintiff cannot 
recover where negligent. 

Sheriff Should Levy on Money coming into his hands from sale 
on prior execution. 

Approved in Cravans v. Wilson, 35 Tex. 56, 57, execution creditor 
may show that property seized was less than that returned in levy; 
Pace V. Smith, 57 Tex. 561, proceeds of attached property sold as 
perishable cannot be garnished if writ is quashed; Mann v. Eel- 
sey, 71 Tex. 614, 10 Am. St. Bep. 804, 12 S. W. 45, sheriff may 
apply money he holds to execution; Deware v. Wichita etc. Elevator 
Co., 17 Tex. Civ. 398, 43 S. W. 1048, sheriff may levy attachment on 
property in his own hands. 

28 Tex. 581-583, BAGOETT v. McKENZIE. 

One Holding Bond for Title is Inferior to purchaser of certificate 
without notice. 

Approved in Johnson v. Newman, 43 Tex. 640, purchaser of head- 
right certificate without notice takes good title; Johnson v. Durst, 
2 Posey U. C. 420, purchaser from heirs takes free from equities 
arising before location; Smyth v. Veal, 2 Posey U. C. 396, purchaser 
of land certificate without notice takes title; Tompkins v. Creighton- 
McShane Oil Co., 160 Fed. 314, 87 C. C. A. 427, land certificate left 
with vendor might be levied upon as his property. 



05 NOTES ON TEXAS BEPOETS. 28 Tex. 584-610 

28 Tex. 584-586, ELLIS ▼. MILLS. 

Compromise of Suit bars another action. 

Distinguished in Kelley v. Town of Milan, 21 Fed. 864, compromise 
between railroad and town official does not estop town from deny- 
ing legislative power to issue bonds. 

Miscellaneous.— Vogt v. Bexar Co., 16 Tex. Civ. 569, 42 S. W. 128, 
cited to point not in the opinion. 

28 Tex. 586^98, EVANS ▼. FIGQ. 

QnestiODB Involving Jurisdiction of the court are considered at 
any time. 

Approved in Newman v. McCullum, 1 Tex. Ap. Civ. 112, and 
Griffin v. Brown, 1 Tex. Ap. Civ. 619, both reaffirming rule; Young 
V. Russell, 60 Tex. 687, and Smith v. Parks, 55 Tex. 86, both dis- 
missing appeal where bond is insufficient, though submitted on merits. 

Bond in Transcript will be presumed approved and accepted by 
clerk. 

Approved in Jones v. Wells, 3 Tex. Ap. Civ. 119, and Nelms v. 
Draub (Tex. Civ.), 22 8. W. 996, both reaffirming rule; Bridges v. 
Cundiff, 45 Tex. 439, bond certified as part of proceeding sufficient 
though not indorsed approved. 

Date of an Appeal Bond, in absence of proof to contrary, may 
be presumed to be the date of its approval and deposit among the 
papers of the case. 

Reaffirmed in Houston etc. By. v. Lockhart (Tex. Civ.), 39 8. W. 
321. 

Release of Witness, to remove objection of interest, must be 
brought to his notice before testifying. 

Distinguished in Ellis v. Ponton, 32 Tex. 438^ where release filed in 
open court. 

28 Tex. 598-599, WAMPLEB v. WALKER. 

Appellate Court has no jurisdiction, where there is no final judg- 
ment. 

Approved in Linn v. Armbould, 55 Tex. 619, judgment directing 
restitution, but leaving issue as to purchase money undetermined, 
is not final; in dissenting opinion, Darnell v. Lyon, 85 Tex. 465, 22 
S. W. 308, majority entertaining jurisdiction of question certified by 
court of civil appeals. 

Statement of Facts, not signed by judge, is disregarded on appeal. 

Approved in Tietjen v. Snead, 3 Ariz. 198, 24 Pac. 325, reaffirming 
rule; Farley v. Deslonde, 58 Tex. 590, and Taylor v. Campbell, 59 
Tex. 317, both holding agreement of counsel is not sufficient; Gal- 
veston etc. By. Co. v. Keen (Tex. Civ.), 73 S. W. 1075, approval 
cannot be waived by parties. 

28 Tex. 606-610, 91 Am. Dec. 334, THROCKMORTON v. PRICE. 

Filing of Deed With Clerk is equivalent to actual registration, 
and party is not liable for neglect of clerk, in failing to index. 

Approved in Fitch v. Boyer, 51 Tex. 349, destruction of records 
cannot prejudice party's rights; Falls Lands etc. Co. v. Chisholm, 
71 Tex. 527, 9 S. W. 482, improper registration does not defeat 
purpose as notice; Bassett v. Brewer, 74 Tex. 556, 12 S. W. 230, 
applied to materialman's claim; Lignoski v. Crooker, 86 Tex. 327, 
24 S. W. 279, applied to liens for work and labor on homestead; 



28 Tex. 610-616 NOTES ON TEXAS BEPOETS. 96 

Case ▼. Haradine, 43 Ark. 148, delivery of mortgage to officer for 
reeord ii sufficient; Ohio ▼. Byrne, 59 Ark. 291, 27 S. W. 245, a{>- 
plied to chattel mortgage improperly recorded; Poplin v. Mundell, 

27 Kan. 158, record relates to time of filing; Mangold ▼. Barlow, 
61 Miss. 597, 48 Am. Bep. 85, party misled must look to clerk 
for redress; Board of Commissioners ▼. Babcock, 5' Or. 478, party 
is not chargeable with recorder's negligence to index properly; Gal- 
well V. Prindle, 19 W. Va. 672, docketing of judgment preserves 
lien without indexing; Hudson v. Randolph, 66 Fed. 219, 220, 221, 
error of recording officer in copying description does not affect it 
as notice. See notes, 91 Am. Dec. 107; 94 Am. Dec. 439; 13 Am. 
St. Rep. 481; 96 Am. St. Bep. 399; 14 L. R. A. 395; 12 L. R. A. 
389. 

Explained in Dean v. Gibson (Tex. Civ.), 48 S. W. 58, holding the 
rule to be stare decisis, and holding in case at bar record of deed 
in which cl^k neglects to copy acknowledgment not constructive 
notice. 

Such Instruments as mnst be Becorded are valid as to subsequent 
bona fide purchasers. 

Approved in Greer etc. Co. v. Crenshaw (Tex. Civ.), 76 8. W. 589, 
assignees of unweaned calves take subject to recorded chattel mort- 
gage on cows and the increase thereof. 

28 Tax. 610-613, WILLIAMS v. WABNELL. 

Oemeral Demurrer admits truth of petition, and if good cause of 
action is stated, though defectively, it is overruled. 

Approved in Shirley v. Byrnes, 34 Tex. 645, McCall v. Sullivan, 
1 Tex. Ap. Civ. 11, Lyie v. Harris, 1 Tex. Ap. Civ. 31, and Brince- 
field V. Allen, 25 Tex. Civ. 260, 60 8. W. 1011, all reaffirming rule; 
George v. Vaughan, 55 Tex. 131, suit against clerk for failure to 
record must state the particular court; Cooper v. Horner, 62 Tex. 
363, want of certainty cannot be so raised; Collins v. Warren, 63 
Tex. 318, time being material may be raised by general demurrer; 
Junction City etc. Incorporation v. Trustees, 81 Tex. 152, 16 S. W. 
743, indefiniteness not raised by general demurrer; Tinsley v. Penni- 
man, 83 Tex. 56, 18 S. W. 719, every reasonable intendment on 
pleading must be indulged in; Mitchell v. Western ' Union Tel. Co., 
5 Tex. Civ. 530, 24 S. W. 551, holding complaint for nondelivery 
of telegram sufficient; McCartney v. Martin, 1 Posey U. C. 148, does 
not lie where not specific; Gulf etc. Ry. v. Ricker (Tex. Sup.), 17 S. 
W. 383, and Harris v. Pinckney (Tex. Civ.), 55 S. W. 39, both holding 
that defective petition susceptible of amendment ia good as against 
general demurrer. 

Verdict and Judgment Cure defects and imperfections in pleading, 
but not where no cause of action is stated. 

Approved in Hurley v. Birdsell, 1 Tex. Ap. Civ. 676, and Johnson 
V. Dowling, 1 Tex. Ap. Civ. 616, both holding such defects cannot 
be raised by motion in arrest of judgment; Texas etc. Ry. v. Mc- 
Coy, 3 Tex. Civ. 278, 22 S. W. 927, verdict does not cure defective 
cause of action. 

28 Tex. 613-616, MARTIN ▼. CBOW. 

Judgment Againat Part of Defendants and continuance as to others 
is not a final judgment. 

Approved in Stewart v. Lenoir, 31 Tex. Civ. 470, 72 S. W. 619, where 
one of defendants not served; Wootters v. KaufiTman, 67 Tex. 497, 3 S. 



97 NOTES ON TEXAS EEPOBTS. 28 Tex. 616-625 

W. 468, continuance as to one defendant is for all; Hamilton r. Pres- 
eott, 73 Tex. 566, 11 S. W. 549, on confession of error, reversed as to 
all; Schintz v. Morris, 13 Tex. Civ. 586, 35 S. W. 518, ordering new 
trial on one branch of suit vacates the whole matter; Hume v. Schintz, 
16 Tex. Civ. 519, 40 S. W. 1071, verdict set aside as to one issue is as 
to all; Parker v. Stephens (Tex. Civ.), 48 S. W. 880, in trespass to try 
title, order for new trial, as to part of defendants, sets aside the judg- 
ment as to all, even though verdict was in favor of portion and against 
certain others. 

Until tbe Wliola Matter is Diq^iosed of as to all parties, there is no 
final judgment and no jurisdiction on appeal. 

Approved in Simpson v. Bennett, 42 Tex. 241, dismissing appeal, 
where no disposition as to some defendants; Linn v. Arambould, 55 
Tex. 624y and Long v. Garnett, 45 Tex. 401, both dismissing appeal 
where new trial as to portion of defendants; Bradford v. Taylor, 64 
Tex. 171, applied on reversal and second judgment where one does not 
appeal; Gulf etc. Ry. v. Fort Worth etc. By., 68 Tex. 104, 2 S. W. 200, 
judgment dissolving injunction is final; Mignon v. Brinson, 74 Tex. 20, 
11 S. W. 904, not final in partition suit where interest of life claimant 
not passed on; Thompson v. State, 17 Tex. Ap. 320, applied to scire 
facias cases; Mills v. Paul, 1 Tex. Civ. 421, 23 S. W. 190, where all 
consolidated cases are not tried, appeal dismissed; Davis v. Martin, 15 
Tex. Civ. 62, 53 S. W. 599, appeal dismissed, matters not disposed of as 
to all parties; Cox v. State, 34 Tex. Cr. 95, 29 S. W. 273, dismissing 
appeal on judgment against bail bond sureties and not against prin- 
cipal; Lay V. Bellinger, 1 Tex. Ap. Civ. 18, dismissing appeal; Watkins 
V. Mason, 11 Or. 73, 4 Pac. 524, Bandle v. Boyd, 73 Ala. 285, both hold- 
ing sustaining demurrer of portion of parties is not final ; in dissenting 
opinion, Darnell v. Lyon, 85 Tex. 465, 22 S. W. 308, majority taking 
jurisdiction of questions certified by court of civil appeals; Frank v. 
Tatum (Tex. Civ.), 20 S. W. 870, and Burrowi ▼. Cox (Tex. Civ.), 38 8. 
W. 50, both holding where judgment does not adjudicate some im- 
portant issues as to all of the parties, it is not final; Davis v. Martin 
(Tex. Civ.), 53 S. W. 599, where it does not dispose of all the parties 
it is not final. See note, 60 Am. Dec. 436. 

28 Tex. 616-622, USHEB V. SEIDMOSE. 

Petition may be Amended to correct inaccurate averment without 
constituting new cause of action. 

See note, 58 Am. Dec. 128. 

In liallcioaa Proeecntlon, action is based on arrest and confinement, 
on discharge therefrom, and not on affidavit for warrant. 

Approved in Johnson v. King, 64 Tex. 230, affidavit of attachment 
not executed it not basis of cause of action; Dempsey v. State, 27 Tex. 
Ap. 271, 11 Am. St. Bep. 195, 11 S. W. 373; Von Koehring v. Witte, 
15 Tex. Civ. 647, 40 S. W. 63, Breneman v. West, 21 Tex. Civ. 21, 50 S. 
W. 471, and Glasgow v. Owen, 69 Tex. 171, 6 S. W. 531, all holding 
that in malicious prosecution it must appear that it has been termi- 
nated. 

28 Tex. 621^-626, BIDEB ▼. DXTVAL. 

Holder of Note Payable to Bearer may sue in his own name, though 
equitable ownership is in another. 

Approved in Jennings Banking etc. Co. ▼. City of Jefferson, 30 Tex. 
Civ. 535, 70 S. W. 1005, applying rule to municipal bonds; Texas etc. 

2 Tex. Notes— 7 



28 Tex. 625-631 NOTES ON TEXAS EEPORTS. 9a 

By. V. Gentry, 69 Tex. 631, 8 S. W. 101, assignor of part of ebose in 
action may sue. See notes, 46 Am. Dec. 97; 70 Am. Dec. 330. 

Distinguished in Llano Improvement Co. v. Cross, 5 Tex. Civ. 178^ 
24 S. W. 78, widow cannot sue on community note after remarriage. 

Plaintiff Suing "as Administrator" on note payable to bearer ia 
entitled to personal judgment. » 

Approved in Hayden v. Kirby, 31 Tex. Civ. 444, 72 S. W. 200, apply- 
ing rule to trespass to try title brought by executors; Roundtree v. 
Stone, 81 Tex. 301, 16 S. W. 1036, holding executors were suing in their 
own right; Wilson v. Hall, 13 Tex. Civ. 492, 36 S. W. 329, holding 
allegations insufficient to support recovery as administrator. 

28 Tex. 625-626, JUABAQXH V. STATE. 

Indictment for Perjury must charge that defendant "deliberately 
and willfully" swore falsely. 

Approved in State v. Powell, 28 Tex. 630, Allen v. State, 42 Tex. 14, 
Ferguson v. State, 36 Tex. Cr. 61, 35 S. W. 369, and State v. Webb, 41 
Tex. 70, all reaffirming rule; Smith v. State, 1 Tox. Ap. 622, such 
allegations are indispensable; Gabrielsky v. State, 13 Tex. Ap. 438, 
false statements must be negatived in detail in indictment; State v. 
Day, 100 Mo. 247, 12 S. W. 366, omission of "willfully" makes indict- 
ment bad; Fitch v. Commonwealth, 92 Va. 834, 24 S. £. 275, omission 
of "falsely" is fatal; United States v. Kelsey, 42 Fed. 890, indictment 
under section 5515 of the Revised Statutes must state returns wer» 
"knowingly" suppressed. 

Offenses Should be Described in the words of the statute. 

Approved in Williams v. State, 1 Tex. Ap. 91, holding indictment for 
rape good; Hart v. State, 2 Tex. Ap. 41, recognizance should follow 
words of indictment. 

In Indictment for Perjury, falsity of statement should appear by 
averment and not be left to inference. 

Approved in State v. Perry, 42 Tex. 240, quashing indictment; Fitch 
V. Commonwealth, 92 Va. 836, 24 S. E. 275, allegations in conclusion do 
not remedy omission in charging part. See notes^ 85 Am. Dec. 494;. 
124 Am. St. Rep. 671. 

28 Tex. 626-631, STATE v. POWELL. 

Indictment for Perjury must aver knowledge of falsity, "willfully 
and deliberately" made. 

Approved in 41 Tex. 71, and Allen v. State, 42 Tex. 14, both reaffirm- 
ing rule; State v. Williams, 111 La. 1036, 36 So. 112, indictment for 
perjury must contain averment that testimony was false to knowledge 
of accused; Smith v. State, 1 Tex. Ap. 622, omission is fatal; Gabriel- 
sky V, State, 13 Tex. Ap. 438, indictment must negative specifically 
the alleged false statement; United States v. Kelsey, 42 Fed. 890, in- 
dictment under section 5515 of the United States Revised Statutes 
must allege returns "knowingly" suppressed. See note, 85 Am. Dec. 
495. 

Overruled in Ferguson v. State, 36 Tex. Cr. 61, 62, 35 S. W. 369, 370, 
in so far that allegation of knowledge is required; Chavarria v. State 
(Tex. Cr.), 63 S. W. 313, holding mere allegation that defendant 
deliberately and willfully swore falsely sufficient. 

Facts Constituting Offense must be directly averred and not by 
inference or argument. 



99 NOTES ON TEXAS REPORTS. 28 Tex. 635-642 

Approved in State y. Perry, 42 Tex. 240, quashing indictment; Smith 
Y. State, 1 Tex. Ap. 624, materiality must be directly stated; White v. 
State, 3 Tex. Ap. 608, applied to swindling by false pretenses. See 
note, 85 Am. Dec. 497. 

To Oonstitnte Farjnry, oath must be administered by qualified officer 
in manner required by law. 

Approved in Stewart v. State, 6 Tex. Ap. 187, allegation that oath 
was administered by "coroner" is fatally defective; People v. Cohen, 
118 Cal. 78, 50 Pac. 21, officer must have authority to administer oath 
in the particular proceeding. See note, 85 Am. Dec. 490. 

28 Tex. 635-640, STPEBT ▼. McOOWEN. 

Wliera Administrator's Sale is not questioned for ten years, com* 
pliance therewith is presumed. 

Approved in Guilford v. Love, 49 Tex. 741, notice to give county 
court jurisdiction is presumed in favor of validity of acts; Weems y. 
Masterson, 80 Tex. 56, 15 S. W. 593, presumption of payment at 
guardian's sale after thirty -three years; Perry v. Blakey, 5 Tex. Civ. 
337, 23 S. W. 807, violation of terms of sale by administrator does 
not render it void on collateral attack; Ingram v. Walker, 7 Tex. Civ. 
77, 26 S. W. 478, stranger not allowed to dispute efficacy of proceed- 
ings after lapse of time; Santana etc. Land Co. v.. Pendleton, 81 Fed. 
790, after fifty years, every reasonable presumption in favor of ad- 
ministrator's sales; East v. Dugan, 79 Tex. 330, 15 S. W. 274, arguendo. 

Distinguished in Groesbeck v. Bodman, 73 Tex. 291, 11 S. W. 323, 
rule not applied where remarried woman makes deed after close of 
administration without privy examination. 

OompUance Witb Terms of Sale by Vendee gives equitable rights 
against stranger, though administrator makes no conveyance. 

Approved in McBee v. Johnson, 45 Tex. 643, holding purchaser took 
equiUble title; McCampbell v. Durst, 15 Tex. Civ. 534, 40 S. W. 321, 
deed not complying with order is voidable only. 

Wliere Verdict is Correct, erroneous instruction does not constitute 
reversible error. 

Approved in Galveston etc. R. R. v. Delahunty, 53 Tex. 212, er- 
roneous charge not resulting in injury is not reversed; Stringfellow 
Y. Montgomery, 57 Tex. 352, where verdict could not have been 
different, errors on evidence and charge are disregarded; Dotson v. 
Moss, 58 Tex. 155, refusal to give charge abstractly correct, ap- 
proved; Vance v. Lindsey, 60 Tex. 290, Holland v. Frock, 2 Posey U. 
C. 567, and Hollman v. H. & T. C. R. R., 2 Posey TJ. C. 560, all refusing 
to revise instructions. 

Ijocator of Iiand is not entitled to share thereof according to custom, 
unless there is a contract to that effect. 

Approved in House v. Brent, 69 Tex. 29, 7 S. W. 67, and Morris v. 
Hall, 2 Posey U. C. 73, both reaffirming rule; Stone v. Ellis, 69 Tex. 
328, 329, 7 S. W. 352, 353, contract of surviving wife does not bind 
children's share, although benefits accepted; Grimes v. Smith, 70 Tex. 
221, 8 8. W. 35, he is not even given a lien; Bennett v. Virginia etc. 
Cattle Co., 1 Tex. Civ. 324, 21 S. W. 128, one cotenant cannot contract 
for location for another. 

28 Tex. 641-642, B0BEBT8 ▼. LOVEJOY. 

On I>ecree of Specific Performance in favor of purchaser, who has 
not paid purchase money, interest is allowed. 

Approved in Lovejoy v. Roberts, 35 Tex. 613, especially reaffirmed. 



28 Tex. 642-676 NOTES ON TEXAS EEPORTS. 100 

28 Tex. 642-644, JOEL v. STATE. 

Indictment must Show Offense was committed anterior to present- 
ment of indictment. 

Approved in Williams y. State, 12 Tex. Ap. 227, Goddard y. State, 
14 Tex. Ap. 566, Nelson y. State, 1 Tex. Ap. 556, and York v. State, 
3 Tex. Ap. 17, all reaffirming rule; Gill v. State (Tex. Cr.), 20 S- W. 
578, information on same daj of offense must allege commission prior 
to presentment. 

Distinguished in Williams y. State, 17 Tex. Ap. 524, complaint need 
not do so. 

28 Tex. 644-649, BANES ▼. STAIIE. 

Proof of Stealing Mare does not support indictment for theft of 
horse. 

Approved in Mathews y. State, 44 Tex. 379, use of word "horse'' by 
witnesses not variance when not questioned below; Gulf etc. By. v. 
Fort Worth etc. Ry., 86 Tex. 644, 26 S. W. 59, following rule; Keesee 
V. State, 1 Tex. Ap. 299, ''mare" does not include "gelding"; Lunsford 
v. State, 1 Tex. Ap. 452, 28 Am. Bep. 416, indictment for theft of "filly" 
not supported by proof of "mare"; State v. Buckles, 26 Kan. 241, and 
Persons v. State, 3 Tex. Ap. 242, both applied to "gelding" and 
"horse"; Brisco v. State, 4 Tex. Ap. 221, 30 Am. Bep. 163, 164, applied 
to "ridgling" and "horse"; Valesco v. State, 9 Tex. Ap. 77, change in 
codes does not apply to theft before they took effect; Johnson v. State, 
16 Tex. Ap. 409, indictment for gelding "stolen" before Bevised Codes 
is correct; Martinez v. Territory, 5 Ariz. 56, 44 Pac. 1089, under indict- 
ment charging larceny of steer, proof of stealing of cow fatal vari- 
ance; State V. McDonald, 10 Mont. 23, 24 Am. St. Bep. 26, 24 Pac. 629, 
where witnesses describe animal as horse or colt, indictment for "a 
horse, a gelding," is not sustained. 

Distinguished in Grant v. State, 2 Tex. Ap. 166, charging theft of 
"hog" is sufficient; Miller v. Territory, 9 Ariz. 125, 80 Pac. 322, under 
statute making it grand larceny to steal "mare," stealing of female 
colt is grand larceny; State v. Perkins, 49 La. Ann. 311, 21 So. 839, 
objection to description cannot be urged for first time on motion to 
arrest judgment; Bartley v. State, 53 Neb. 342, 73 N. W. 754, state 
treasurer drawing check on depository and placing to account of third 
person is guilty of embezzlement. 

Averments of Indictment must be as specific as the statute, and 
proof must correspond therewith. 

Approved in Blair v. State, 32 Tex. 476, holding indictment for 
betting at faro sufficient; Stringer v. State, 13 Tex. Ap. 522, applied 
to indictment for swindling. 

28 Tex. 649-676, STBOUD V. SFBTNGFIELD. 

Thirty Year Old Deed from proper custody free from suspicion, and 
acted upon, is admissible without proof. 

Approved in Glasscock v. Hughes, 55 Tex. 476, deed less than thirty 
years old is not within the rule; Holmes v. Coryell, 58 Tex. 688, admit- 
ting certified copy of registered deed; Cox v. Cock, 59 Tex. 524, ad- 
mitting deed; Dawson v. Ward, 71 Tex. 77, 9 S. W. 109, admitting 
examined copy; Ammons v. Dwyer, 78 Tex. 646, 650, 15 S. W. 1051, 
1053, copy of deed recorded over thirty years since admitted, though 
not admissible as record; Chamberlain v. Showalter, 5 Tex. Civ. 229, 
23 S. W. 1017, deed not in proper depository must be explained; Holt 



101 NOTES ON TEXAS BEPOBTS. 28 Tex. 649-676 

y. Maverieky 5 Tex. Civ. 652, 23 S. W. 752, indorsement on land certifi- 
eate hy Buryeyor is admissible as ancient instrument, though canceled; 
Fletcher y. Ellison, 1 Posey U. G. 664, admitting deed without proof of 
execution. See note, 35 L. B. A. 344. 

Distinguished in Houston etc. B. B. ▼. Martin, 2 Posey XJ. C. 118, 
disallowing copy of record of decree; Belcher v. Fox, 60 Tex. 530, dis- 
allowing copy from record of deed; Leland v. Wilson, 34 Tex. 90, no 
presumption in favor of deed at execution sale, without proof of judg- 
ment or execution. 

Proof of Possession under ancient deed is not necessary; it is ad- 
missible on proof of other circumstances corroborative of genuineness. 

Approved in Newby v. Haltaman, 43 Tex. 317, holding deed valid 
under circumstances; Lunn v. Scarborough, 6 Tex. Civ. 17, 24 S. W. 
847, and Garner v. Lasker, 71 Tex. 435, 9 S. W. 334, both admitting 
deed without possession; Baylor v. Tillebach, 20 Tex. Civ. 493, 49 S. 
W. 722, on affidavit of loss of deed, search, etc., its execution may be 
proved by circumstances; Williams v. Hardie (Tex. Civ.), 21 S. W. 268, 
instance where proof of signature of deceased acknowledging officer to 
deed, in connection with other facts, was held sufficient. 

Where Oenuineness of Copy of Field-notes of a deceased surveyor, 
found among his papers^ is established, it is admissible as declaration 
of the surveyor tending to establish a disputed boundary. 

Approved in Tracy v. Eggleston, 108 Fed. 328, declarations of de- 
ceased surveyor as to boundaries made at time of survey are ad- 
missible, although he was at the time interested in the land. 

Distinguished in dissenting opinion in Tracy v. Eggleston, 108 Fed. 
331, 332, majority holding declarations of deceased surveyor as to 
boundaries, made at time of survey, admissible although he was at the 
time interested in the land. 

Declarations of Deceased Persons are admissible on the question of 
old private boundaries. 

Approved in Goodson v. Fitzgerald, 40 Tex. Civ. 628, 90 S. W. 902, 
admitting declarations of deceased owner ante litem motam as to 
boundaries; Linney v. Wood, 66 Tex. 30, 17 S. W. 247, admitting 
declarations; Smith y. Bussell, 37 Tex. 255, applied to corners and 
lines of survey; Hurt v. Evans, 49 Tex. 316, applied to boundaries 
of subdivision of tract sold by deceased; Coleman v. Smith, 55 Tex. 
257, admitting declarations of one who acted as commissioner in par- 
tition; Tucker v. Smith, 68 Tex. 478, 3 S. W. 673, admitting testimony 
that posts were pointed out as placed by surveyor; Bussell v. Hunni- 
cutt, 70 Tex. 660, 8 S. W. 501, field-notes of original surveyor ad- 
missible on proof of handwriting and death; Withers v. Connor, 76 
Tex. 190, 13 S. W. 745, admitting declarations of public surveyor; 
Whitman v. Haywood, 77 Tex. 560, 14 S. W. 167, admitting declara- 
tions of contiguous owners as to tree called for by survey; Byers v. 
Wallace, 87 Tex. 518, 29 S. W. 761, self-serving declarations on pedi- 
gree are not admissible; in dissenting opinion, Boebke v. Andrews, 26 
Wis. 33, majority admitting declarations of possessor to show char- 
acter thereof. See notes, 67 Am Dec. -621; 60 Am. Bep. 590; 94 Am. 
St. Bep. 677, 678, 681. 

Limited in Hunnicutt v. Peyton, 102 U. S. 365, 366, 26 L. 120, dec- 
larations as to private boundary not admissible when recitals of some- 
thing past. ^ 

Distinguished in Beed v. Appleby (Tex. Sup.), 8 S. W. 291, not al- 
lowing declarations of deceased party asserting title contradicting 



28 Tex. 677-679 NOTES ON TEXAS BEPORTS. 102 

plainti£r*s ease in trespass to try title; Pierce t. Sehram (Tex. Civ.)^ 
53 S. W. 716, allowing ancient deed to establish a corner although 
grantor of the deed was living. 

Oommon Beputation as to old boundaries, ante litem motam, is ad- 
missible. 

Approved in Welder v. Carroll, 29 Tex. 333, 335, following role; 
Beeves v. Boberts, 62 Tex. 552, admitting evidence of general under- 
standing; Matthews v. Thatcher, 33 Tex. Civ. 137, 76 S. W. 64, admit- 
ting reference in subsequent adjoining surveys and in legislative act. 

Claimant of Land must Prove Title, and that the very land is pos- 
sessed by defendant. 

Approved in Viesca v. Wyche, 3 Woods, 339, Fed. Cas. 16,940, actual 
trespass need only be proved in controversies over boundaries; Jones 
V. Andrews, 62 Tex. 667, land sued for must correspond with descrip- 
tion in petition. 

Plea of ''not Guilty" in trespass to try title admits nothing, but re- 
quires strict proof of everything to sustain plaintiff's action. 

Approved in Titus v. Johnson, 50 Tex. 238, trespass to try title lies 
irrespective of actual occupancy; Adams v. House, 61 Tex. 641, out- 
standing title may be proved in ''not guilty." See notes, 67 Am. Dec. 
621; 86 Am. Dec. 669. 

Where Evidence is Oonillcting, verdict not clearly wrong is sus- 
tained. 

Approved in Agricultural etc. Assn. v. Brewster, 51 Tex. 263, Flana- 
gan V. Pearson, 61 Tex. 307, Wisson v. Baird, 1 Tex. Ap. Civ. 390, 
Fowler v. Chapman, 1 Tex. Ap. Civ. 542, Duffard v. Herbert, 2 Tex. 
Ap. Civ. 536, Williams v. Ford (Tex. Civ.), 27 S. W. 724, and Giltner 
V. Waters, 2 Posey U. C. 515, all reaffirming rule; Linney v. Peloquin, 
35 Tex. 37, setting aside verdict; Long v. Garnett, 59 Tex. 233, Ad- 
kinson v. Garrett, 1 Tex. Ap. Civ. 23, Mitchell v. Dallas City Gas etc. 
Co., 1 Tex. Ap. Civ. 52, and Viviola v. Kuezek, 1 Tex. Ap. Civ. 340, 
all applying rule to decision of court without jury; Vance v. Saathoff, 
2 Posey U. C. 661, applied to credibility of witnesses; in dissenting 
opinion. Mutual Life Ins. Co. v. Hayward, 88 Tex. 327, 31 S. W. 511, 
majority refusing writ of error to court of civil appeals. 

28 Tex. 677-679, MAY V. POLLABD. 

Evidence of Beceipt dated "Oct., '54," is not fatal variance, though 
answer alleges date "October 25, 1854." 

Approved in Longley v. Caruthers, 64 Tex. 288, month omitted in 
contract is no variance, though alleged in petition; First Nat. Bank 
V. Stephenson, 82 Tex. 436, 18 S. W. 583, petition alleging note exe- 
cuted "on or about Oct. 11th," note bearing date of October 12th, is 
no variance; Halfin v. Winkleman, 83 Tex. 167, 18 S. W. 433, applied 
where but one note has been executed for difference in date; Krueger 
v. KJinger, 10 Tex. Civ. 580, 30 S. W. 1089, variance in description of 
place of payment not fatal, unless misleading; Texas etc. By. v. Will- 
iams, 62 Fed. 443, allowing variance in manner in which plaintiff was 
unlawfully forced off train; Mitchusson v. Wadsworth, 1 Tex. Ap. Civ. 
547, variance in matters of inducement is not fatal; Pelican Ins. Co. 
V. Schwartz (Tex. Sup.), 19 S. W. 375, holding "goods" and "mer- 
chandise" synonymous terms in an insurance policy; Hunstock v. 
Koberts (Tex. Civ.), 55 S. W. 514, execution sale of "March 9th" and 
one of "March 17th" is not fatal variance where the variance was riot 
misleading; Memphis St. By. Co. v. Berry, 118 Tenn. 595, 102 S. W. 



103 NOTES ON TEXAS EEPOKTS. 28 Tex. 680-696 

89, where complaint charged that decedent was thrown from wagon 
by impact of car, proof that he was thrown during subsequent flight 
of horse no variance. 

Beceipt In Writing pleaded in answer need not be proved unless 
execution is denied under oath. 

Approved in State Nat. Bank v. Stewart, 39 Tex. Civ. 622, 88 S. W. 
296, sworn plea necessary before plaintiff can prove check set up in 
defense to be forgery; City Water Works v. White, 61 Tex. 539, ap- 
plied, though it does not clearly appear to be executed by defendant; 
Pullman etc. Car Co. v. Booth (Tex. Civ.), 28 S. W. 723, telegrams to 
and from a sleeping-car company forming contract with it should be 
denied by sworn plea. 

Wliere Defendant is not a Merchant, exception of statute of limita- 
tipns in favor of running accounts between merchants does not apply. 

Approved in Cohen v. Shwarts (Tex. Civ.), 32 S. W. 820, sale of a 
single consignment with entry of a payment thereon is not a statu- 
tory, mutual and current account. 

Distinguished in Hays v. Samuels, 55 Tex. 562, account herein one 
between merchant and merchant. 

It Seems in Suit on Mercantile Account, where the items of account 
are set out in gross, they should on special objection be stricken out. 

Approved in Balston v. Aultman (Tex. Civ.), 26 S. W. 746, in action 
for merchandise sold, an item ''To balance due in cash, $600," is not 
sufficiently specific. 

28 Tex. 680-687, HALET v. GBEENWOOD. 

Party on Whom Defective Process is served may appear and take 
advantage of it by motion to quash. 

See note, 47 Am. Dec. 667. 

Sureties of Sherlif not Liable for money paid to him by defendant 
in execution after return day. 

Approved in Brown v. King, 41 Tex. Civ. 593, 93 S. W. 1020, sheriff 
not liable for act of deputy in arresting man on suspicion of pistol 
carrying; Maddox v. Hudgeons, 31 Tex. Civ, 293, 72 S. W. 416, sheriff 
not liable for act of deputy in requesting constable to make illegal 
arrest. 

Miscellaneous. — Thomas y. Browder, 33 Tex. 785, without applica- 
tion. 

28 Tez. 687-696, DUBBETT ▼. 0E08BY. 

ICandamos will not Compel public officer to perform an act, unless 
enjoined by law without discretion. 

Approved in Houston etc. B. B. v. Kuechler, 36 Tex. 414, railroad 
may compel commissioner of land office to issue certificates; Kuech- 
ler v. Wright, 40 Tex. 624, mandamus will lie to compel commissioner 
of general land office to perform ministerial duty; Thomson v. Baker, 
90 Tex. 169, 38 S. W. 23, after repeal of act, land commissioner can- 
not be compelled to act in accordance therewith; Campbell v. Blan- 
chard, 2 Posey U. C. 322, duty repealed is not compelled; in dissent- 
ing opinion, Bledsoe v. International B. B., 40 Tex. 591, majority re- 
fusing to compel countersigning and registering of bonds. See note, 
55 Am. Dec. 806. 

Where Oertiflcate has Been Bejected on re-examination, issue of 
patent will not be compelled. 

Distinguished in Clark v. Smith, 59 Tex. 280, where certificate 
neither approved nor disapproved. 



28 Tex- 696-732 NOTES ON TEXAS BEPOBTS. 104 

28 Tex. 696-607, THABP ▼. STATE. 

On Indictment for Using an Ox, without complying with laws regu- 
lating estraySy value of ox must be proved. 

Approved in Osborn v. State, 33 Tex. 546, following rule; Crews 
V. State, 10 Tex. Ap. 293, and Archer v. State, 9 Tex. Ap. 80, 
both holding indictment for doing business without license must state 
occupation tax; Marshall v. State, 4 Tex. Ap. 553, applied to indict- 
ment for driving off cattle. 

28 Tex. 698-712, MABIA V. STATE. 

Deliberate Design is necessary to constitute murder in first degree. 

Approved in Hambj v. State, 36 Tex. 529, evidence did not justify 
verdict of murder in first degree. 

Judge most Deliver to Jnry a written charge setting forth the law 
applicable to the case, without request. 

Approved in Lindsay v. State, 36 Tex. 344, Pefferling v. State, 40 
Tex. 493, and Curry v. State, 4 Tex. Ap. 578, all reaffirming rule; Am- 
wine V. State, 49 Tex. Cr. 6, 90 S. W. 40, court must give law of man- 
slaughter if any evidence whatever to support such verdict; Brown v. 
State, 38 Tex. 486, court examines charge in felony case, excepted to 
or not; Bishop v. State, 43 Tex. 403, matters of mitigation and de- 
fense should be given in instructions; Johnson v. State, 5 Tex. Ap. 
441, holding instructions sufficient; Williams v. State, 7 Tex. Ap. 398, 
instructions as to manslaughter should have been given; Heath v. 
State, 7 Tex. Ap. 466, charge should embody instructions applicable 
to every legitimate deduction from testimony; Evans v. State, 13 Tex. 
Ap. 242, not required on point without evidence. 

Passion and Provocation must coexist to reduce killing to man- 
slaughter. 

See note, 5 L. B. A. (n. s.) 811. 

Whipping of Defendant's Ohild by deceased is sufficient provoca- 
tion to reduce killing to manslaughter if whipping so enraged defend- 
ant as to make him incapable of cool reflection. 

See notes, 17 L. B. A. (n. s.) 796; 5 L. B. A. (n. s.) 817. 

28 Tex. 713-732, SCOBY v. SWEATT. 

Possession of Property by One Heir after partition by court is ad- 
verse to others. 

Approved in Adkins v. Spurlock, 46 W. Va. 141, 33 S. E. 122, void 
partition by cotenants is ouster. See note, 109 Am. St. Bep. 613. 

Statutes on Same Subject are construed together. 

Approved in Hanrick v. Hanrick, 54 Tex. 109, act of 1854 did not 
repeal section 9 of act of 1848 respecting aliens; Laughter v. Seela, 
59 Tex. 183, applied to acts passed same day; Brown v. Chancellor, 
61 Tex. 443, applied to statute and law-merchant; Taylor v. Hall, 71 
Tex. 218, 9 S. W. 143, applied to statutes in relation to patent fees. 

Petition Should Contain a Full and clear statement of cause of ac- 
tion, which may be remedied by amendment. 

Approved in Atchison etc. By. Co. v. Veale, 39 Tex. Civ. 40, 87 8. 
W. 203, additional averment that pens were muddy does not state new 
cause of action; Spencer v. McCarty, 46 Tex. 215, making description 
of land definite; McCauley v. Long, 61 Tex. 79, allegations of evidence 
stricken out on exception; Wilkins v. Ferrell, 10 Tex. Civ. 235, 30 S. 
W. 451, exact date of injury need not be stated; Davidson v. Gibson, 
2 Posey U. C. 332, pleading under oath may be amended; Tynberg v. 



105 NOTES ON TEXAS EEPORTS. 28 Tex. 713-732 

Cohen (Tez. Ciy.)» ^^ 3* ^- ^^^i ^^ amendment which simply specifies 
in detail the damages originallj set forth is allowable. See note, 73 
Am. Dee. 235. 

If Petition States a Oanae of Action, however defectively, it stops 
statute of limitations. 

Approved in Longino v. Ward, 1 Tex. Ap. Civ. 260, and Bremond 
V. Johnson, 1 Tex. Ap. Civ. 325, both reaffirming rule; Zeliff v. Jen- 
nings, 61 Tex. 464, where innuendo in slander is set out more specifi- 
cally; Gulf etc. Ry. v. Richards, 11 Tex. Civ. 101, 32 S. W. 99, change 
from ex contractu to ex delicto does not set up new cause of action; 
Rippetoe v. Dwyer, 1 Posey U. C. 506, applied to erroneous statement; 
in dissenting opinion, East Texas etc. Ins. Co. v. Templeton, 3 Tex. 
Ap. Civ. 495, majority only holding statute not stopped; Texas etc. 
Ry. V. Sims (Tex. Civ.), 26 S. W. 635, in suit against railroad, while 
in hands of receivers, for loss of cattle, limitations were evaded by 
filing of original petition; Missouri etc. Ry. v. McFadden (Tex. Civ.), 
32 S. W. 24, amplification of petition by amendment Is not a new 
cause of action; Texas etc. Ry. v. Johnson (Tex. Civ.), 34 S. W. 188, 
defective petition may be corrected by amendment, which relates back 
to original petition. 

Where Party Takes Under Terms of Will less than he is entitled to 
by statute, it does not constitute an election. 

Approved in Williams v. Emberson, 22 Tex. Civ. 530, 55 S. W. 599, 
execution of mortgage on property devised is no election to take under 
will. 

No Estoppel Arises without proof of wrong on one side and injury 
on the other. 

Approved in Taylor v. Tompkins, 1 Tex. Ap. Civ. 589, and Shattuck 
V. McCartney, 1 Tex. Ap. Civ. 280, both reafiirming rule; Lewis v. 
Brown, 39 Tex. Civ. 142, 87 S. W. 705, representations to constitute 
estoppel must induce action; Page v. Arnim, 29 Tex. 70, failure to 
assert right is no estoppel; Mayer v. Ramsey, 46 Tex. 375, estoppel 
allowed, though acts were under mistake of legal rights; Peters v. 
Clements, 52 Tex. 143, holding allegations of estoppel insufficient; 
Grigsby v. Caruth, 57 Tex. 271, true state of title known to both par- 
ties, recitals do not estop; Hefner v. Downing, 57 Tex. 580, parties 
estopped by long acquiescence in boundary line; Turner v. Ferguson, 
58 Tex. 9, no estoppel from promises without consideration in ignor- 
ance of right and without negligence; Echols v. McKie, 60 Tex. 43, 
holding no estoppel; Grinnan v. Dean, 62 Tex. 220, vague statements 
as to title do not estop; Fielding v. Du Bose, 63 Tex. 636, holder of 
recorded mortgage estopped by statement that property is free; By- 
num V. Preston, 69 Tex. 292, 5 Am. St. Rep. 52, 6 S. W. 430, setting 
out elements of estoppel; Equitable etc. Co. v. Norton, 71 Tex. 689, 
10 S. W. 304, holding question of estoppel should have been left to 
jury; Masterson v. Little, 75 Tex. 698, 13 S. W. 160, promise to be 
bound by judgment by one not party with good defense does not 
estop; Northam v. Thompson, 81 Tex. 351, 16 S. W. 1060, where party 
is not deceived and has full knowledge there is no estoppel; Security 
etc. Co. V. Caruthers, 11 Tex. Civ. 441, 32 S. W. 843, mortgagee as- 
senting to erection of building may claim superiority to mechanic's 
lien; Florida etc. Club v. Hope Lumber Co., 18 Tex. Civ. 167, 44 S. 
W. 13, party, after approving of number, may object to quality, 
though payment was made to third party; Stanger v. Dorsey, 22 Tex. 
Civ. 575, 55 S. W. 130, silence does not estop in absence of duty to 



28 Tex. 732-759 NOTES ON TEXAS REPORTS. 106 

speak; Whiteselle v. Texas Loan Agency (Tex. Civ.), 27 S. W. 315, cor- 
poration director who negotiates loan on assurance that it will be 
first lien is estopped from claiming a prior lien to lender. 

Distinguished in Hilburn v. Harris (Tex. Civ.), 29 S. W. 925, estop- 
pel does not arise where parties were minors, at the time ignorant of 
their rights, and making no representations, and their silence is the 
basis of the alleged estoppel. 

28 Tex. 732-759, 91 Am. Dec. 336, GIDDINaS v. STEKTiF.. 

Holrs cannot Sue to recover property, unless administration is 
closed or administrator is not acting, and there are no debts. 

Approved in Webster v. Willis, 66 Tex. 473, applying same rules 
in suit against heirs; Rodgers v. Kennard, 54 Tex. 37, upholding suit 
by heirs for recovery of land where interest of administrator was 
antagonistic; Walker v. Abercombie, 61 Tex. 71, allowing suit by 
surviving widow; Fort v. Fitts, 66 Tex. 594, 1 S. W. 563, alloiving 
suit by heirs on administrator's bond; Lee v. Turner, 71 Tex. 266, 
9 S. W. 150, sustaining plea in abatement to such suit; Northcraft 
V. Oliver, 74 Tex. 166, 11 S. W. 1122, disallowing suit by heirs where 
estate was heavily indebted; Herbert v. Harbert (Tex. Civ.), 59 S. 
W. 595, plaintiffs must show injury to themselves as heirs; absorp- 
tion of estate by creditors is not sufficient; Galveston etc. Ry. v. 
Kclley (Tex. Civ.), 26 S. W. 471, applying rule where heirs made 
themselves parties plaintiff without coming within the rule; dissent- 
ing opinion in Bryan v. Pinney, 3 Ariz. 41, 21 Pac. 335, majority 
holding court cannot grant involuntary nonsuit. See notes, 58 Am. 
Dec. 134; 22 L. R. A. (n. s.) 456, 458; 15 L. R. A. 493. 

Wliere Sale is Fraudulently Made by administrator and is can- 
celed, property falls back to estate. 

Approved in Todd v. Willis, 66 Tex. 709, 1 S. W. 806, allowing suit 
by administrator de bonis non. 

Irregularities in Grant of Letters or sales by probate court are 
not fatal, where court has jurisdiction. 

Approved in Kleinecke v. Woodward, 42 Tex. 314, absence of 
averments in petition does not render administration void; Guilford 
V. Love, 49 Tex. 740, even notice is presumed to support order; 
Murchison v. White, 54 Tex. 84, conclusive on collateral attack; 
Gillcn waters v. Scott, 62 Tex. 673, application for sale not stating 
statutory ground cannot be collaterally attacked; Martin ▼. Rob- 
inson, 67 Tex. 374, 375, 3 S. W. 552, 553, letters of administration 
cannot be collaterally attacked; Strickland v. Sandmeyer, 21 Tex. 
Civ. 353, 52 S. W. 88, appointment of administrator de bonis non 
cannot be collaterally attacked; dissenting opinion, State v. Benton, 
12 Mont. 80, 29 Pac. 429, majority refusing to issue writ of prohi- 
bition; Harris v. Shafer (Tex. Civ.), 21 S. W. 112, mere failure of 
administrator to file inventory will not raise presumption of lapse 
of administration. See notes, 65 Am. Dec. 185; 70 Am. Dec. 314; 
94 Am. Dec. 636. 

An Heir Who Avails Himself of Products or results of acts of 
an administrator is estopped from denying the existence of his 
capacity. 

Approved in Kahle v. Stone, 95 Tex. 112, 65 S. W. 625, holding 
party claiming under trust deed estopped from repudiating powers of 
trustee. 



107 NOTES ON TEXAS EEPOETS. 28 Tex. 759-776 

On Deatb of Defendant, without making his representatives 
parties, judgments are not void, but may be corrected by proceeding 
coram nobis. 

Approved in Campbell v. Upson (Tex. Civ.), 81 8. W. 359, reaffirm- 
ing rule; Pullen v. Baker, 41 Tex. 421, judgment voidable in court 
where rendered; Milam Co. v. Bobertson, 47 Tex. 233, refusing to 
set aside such judgment; Taylor v. Snow, 47 Tex. 465, 26 Am. Bep. 
312, execution sale cannot be set aside in collateral proceeding; Denni 
V. Elliott, 60 Tex. 339, judgment against lunatic is voidable only; 
Harrison v. McMnrray, 71 Tex. 127, 8 S. W. 614, order dismissing suit 
on death of plaintiff voidable as to heirs; Sanders v. State, 85 Ind. 
326, 44 Am. Bep. 35, allowing new trial on plea of guilty under 
coercion; Flores v. Maverick (Tex. Civ.), 26 S. W. 318, 319, applying 
rule where plaintiff was dead at time judgment was rendered in his 
favor. See notes, 29 Am. St. Bep. 816, 817; 126 Am. St. Bep. 626, 
631, 637; 49 L. E. A. 173; 18 L. B. A. 840. 

Approval of dainu by Probate Judge is quasi judgment and can 
only be annulled in district court. 

Approved in Williams v. Bobinson, 63 Tex. 581, cannot be reopened 
in collateral proceeding. See notes, 65 Am. Dec. 121, 122, 125, 127; 
19 Am. St. Bep. 345; 54 Am. St. Bep. 634; 88 Am. St. Bep. 243. 

Fact That Purchase Money of unlocated land certificate not paid 
by purchaser to whom it is conveyed by administrator does not make 
his title void. 

Approved in McCampbell v. Durst, 15 Tex. Civ. 533, 40 S. W. 321, 
holding administrator's deed not void where report showed proceeds 
of sale had been used to pay widow's allowance and expenses, but in 
fact purchaser had paid nothing and expenses only paid and widow 
deeded half of land by purchaser. 

Administrator De Bonis Non may avoid fraudulent transfers by 
predecessor. 

See note, 40 L. B. A. 66, 72. 

All Ck>ntracts are Presuned Fair, and not unlawful or fraudulent. 

Approved in Compton v. Marshall, 88 Tex. 57, 29 S. W. 1059, at- 
taching creditor on property transferred to trustee for creditors must 
prove fraud; Weiss v. Oliver (Tex. Sup.), 7 S. W. 50, fraud may be 
proved by circumstantial evidence. See notes, 6 Am. St. Bep. 277; 
53 Am. St. Bep. 80. 

Miscellaneous.— Folts v. Ferguson, 77 Tex. 305, 13 S. W. 1038, with- 
out application. 

28 Tex. 759-776, TUTTLE ▼. TUBNEB. 

Tme Test of Interest of a Witness is whether he will gain or lose 
by direct effect of judgment. 

Approved in Muckleroy v. House, 21 Tex. Civ. 675, 52 S. W. 1040, 
party suing as guardian has no such interest. 

Whenever Acts of Agent are admissible, his statements concerning 
the act while doing it are admissible. 

Approved in White v. San Antonio Waterworks Co., 9 Tex. Civ. 474, 

29 S. W. 256, disallowing declaration after injury. 

Lands Transferred Without Consideration or to defraud creditors 
are liable for vendor's debts. 

See note, 73 Am. Dec. 287. 

Purchaser, After Levy of Attachment, though without notice, stands 
in the shoes of his vendor. 



28 Tex. 776-780 NOTES ON TEXAS EEPOETS. 108 

Approved in Scudder v. Cox, 35 Tex. Civ. 417, 80 S. W. 873, pur- 
ehaser cannot collaterally attack judgment for fraud; Baird v. Trice, 
51 Tex. 560, subsequent homestead does not defeat attachment; Han- 
cock V. Henderson, 45 Tex. 485, no need to go on land to attach; 
Walton V. Cope, 3 Tex. Civ. 501, 22 S. W. 766, purchaser, after levy 
but before completion of service, is subject thereto; Rogers v. Bur- 
bridge, 5 Tex. Civ. 70, 24 S. W. 301, attachment does not abate by 
death of defendant; McGregor v. White, 15 Tex. Civ. 303, 39 S. W. 
1026, purchaser from fraudulent vendor bound by execution sale; Rip- 
petoe V. Dwyer, 1 Posey U. C. 508, applied to vendee under sheriff*s 
sale; Thompson v. Baker, 141 U. S. 655, 35 L. 890, 12 Sup. Ct. Rep. 
91, judgment sale upheld against bona fide purchaser after attach- 
ment; Hart V. Forbes; 60 Miss. 749, garnishment before acceptance of 
assignment of policy is prior. 

Deed Takes Effect from Delivery, actual or constructive, and this 
is not presumed merely because of benefit to vendee. 

Approved in McLaughlin v. McManigle, 63 Tex. 557, no sufficient 
delivery shown; Alliance Milling Co. v. Eaton, 86 Tex. 410, 25 S. W. 
618, 24 L. R. A. 369, delivery and acceptance by donee of power does 
not bind beneficiaries; Hubbard v. Cox, 76 Tex. 242, 13 S. W. 170, 
facts held sufficient to show delivery; Croom v. Jerome Hill Cotton 
Co., 15 Tex. Civ. 331, 40 8. W. 147, deed recorded without notice to 
purchaser not good against attachment before delivery; Knox v. 
Clark, 15 Colo. Ap. 361, 62 Pac. 335, filing deed for record does not 
constitute delivery; Emmons v. Harding, 162 Ind. 160, 70 N. E. 144, 
though there is presumption of acceptance by grantee of deed de- 
livered by grantor to third party for delivery at grantor's death, there 
is no actual acceptance till grantee elects to claim under deed; Guar- 
anty Trust Co. V. Galveston etc. R. R., 107 Fed. 323, delivery pre- 
sumed on date of acknowledgment; Bell v. Farmers' Bank, 11 Bush, 
39, 21 Am. Rep. 207, deed only takes effect as to attaching creditors 
on delivery; Rogers v. Heads Iron Foundry, 51 Neb. 45, 70 N. W. 
529, 37 L. R. A. 429, chattel mortgage not good as to liens attaching 
before actual acceptance. See notes, 54 L. R. A. 897, 906; 24 L. R. 
A. 371, 374; 4 L. R. A. 313. 

Disapproved in Breathwit v. Bank of Fordyce, 60 Ark. 36, 28 S. W. 
513, acceptance of mortgage by preferred creditors is presumed. 

Possession of a Dead by Grantee raises a presumption of its due 
delivery to him. 

Reaffirmed in Gonzales v. Adoue, 94 Tex. 126, 86 Am. St. Rep. 825, 
58 S. W. 953. 

Verdict of Jury, on Oonilicting Testimony, is not disturbed unless 
clearly wrong. 

Approved in Wisson v. Baird, 1 Tex. Ap. Civ. 390, Fowler v. Chap- 
man, 1 Tex. Ap. Civ. 542, and Giltner v. Waters, 2 Posey U. C. 515, 
all reaffirming rule; Vance v. Saathoff, 2 Posey U. C. 661, applied to 
credibility of witnesses; Mitchell v. Dallas City Gas etc. Co., 1 Tex. 
Ap. Civ. 52, applied to findings by court. 

28 Tex. 776-780, EMMONS v. WILLIAMS. 

Execution Sale under judgment against legal representatives con- 
veys no title. 

Approved in Cannon v. McDaniel, 46 Tex. 310, under act of 1848 
mortgage against estate should be foreclosed in county court; Meyers 
V. £vanS| 68 Tex. 467, 5 S. W. 67, purchaser under execution sale in 



109 NOTES ON TEXAS EEPOETS. 28 Tex. 780-800 

district eourt gets no title; Hooper v. Carutherf, 78 Tex. 438, 15 S. 
W. 100, execution after death does not pass title; Fleming ▼. Ball, 25 
Tex. Civ. 210, 60 8. W. 985, holding judgment sale eight years after 
death of sole defendant therein, and where the estate had not been 
administered, void. See note, 61 L. B. A. 372, 393. 

28 Tez. 780-792, WEISIGEB v. OHISHOLM. 

Knowledge of, or Participation in, Fraad of vendor by vendee 
avoids sale as to creditors, though for valuable consideration. 

Approved in Traylor v. Townsend, 61 Tex. 147, applied where fraud 
could have been known to purchaser by use of ordinary diligence; 
Le Page v. Slade, 79 Tex. 478, 15 S. W. 498, knowledge of purchaser 
should have been left to jury. See notes, 73 Am. Dee. 287; 34 Am. 
St. Bep. 398. 

Where Byldence la Conflicting, question of fraud is for jury, but 
verdict is reversed where evidence is disregarded. 

Approved in Hamman v. Willis, 62 Tex. 510, verdict as to value of 
services not disturbed; Tognini v. Kyle, 15 Nev. 468, question of 
fraud is for jury; Weiss v. Oliver (Tex. Sup.), 7 S. W. 50, fraud may 
be proved by circumstantial evidence, and in case of conflicting evi- 
dence, verdict is conclusive. See note, 70 Am. Dec. 333. 

Adminion by Parties That Sale made to defraud executors, made 
to two witnesses, warrants fluding of fraudulent conveyance where 
vendor was insolvent. 

See note, 32 L. B. A. 53. 

28 Tez. 793-797, McOUIJiOOH v. BENK. 

Administratrix may Purchase at her own sale in common-law state. 

Approved in Butherford v. Stamper, 60 Tex. 450, cannot be collater- 
ally attacked by vendees of heirs. 

Gift of Cbattel to young minors is valid, though father retain 
possession. 

See note, 55 Am. Dec. 761. 

28 Tez. 798, PABB ▼. NOLEN* 

PeUtioii in Soit on Note must Allege it was executed or delivered 
by defendants to sustain judgment by default. 

Approved in Western Union Tel. Co. v. Henry, 87 Tex. 169, 27 S. 
W. 65, suit against telegraph company must show receipt for trans- 
mission; Lewis V. Southwestern etc. Tel. Co. (Tex. Civ.), 59 S. W. 
304, in soit against telephone company for failure to notify plaintiff 
that party wished to talk to him, petition must allege an obligation 
for them to do so. See note, 76 Am. Dec. 101. 

28 Tez. 799-800, PBIDOEON ▼. BONNEB. 

Where There is a Mistake in calculating interest on note, judgment 
may be corrected on error. 

Approved in Brooks ▼. Masterson (Tez. Ciy.}| 82 S. W. 822, re- 
affirming rule. 



NOTES 



ON THE 



TEXAS EEPOETS 



GASES IN 29 TEXAS. 



29 Tex. fr>16, PLUMMEB ▼. TOWER, 

A New Trial may be Granted after the adjournment of the term at 
whieh judgment was entered by invoking court's equitable powers. 

Approved in Harris v. Musgrave, 72 Tex. 21, 9 S. W. 91, and John- 
son V. Daniel, 25 Tex. Civ. 590, 63 S. W. 1033, both reaffirming rule; 
Chisholm v. Day, 1 Tex. Ap. Civ. 264, it requires an original suit to 
set aside a judgment after expiration of term; Hammond v. Atlee, 15 
Tex. Civ. 270, 39 S. W. 601, judgment may be reopened by direct 
proceedings; Roller v. Ried (Tex. Civ.), 24 8. W. 656, instance where 
court refused such new trial for want of sufficient excuse. See note, 
67 Am. Dec. 653. 

To Justify Grant of New Trial after expiration of the term, party 
seeking it must show fraud, accident, or acts of opposite party pre- 
venting him from making a valid defense. 

Approved in Morris v. Edwards, 62 Tex. 209, Ham ▼. Phelps, 65 
Tex. 597, Weaver v. Vandervanter, 84 Tex. 693, 19 S. W. 889, Ayres 
V. Parrish, 15 Tex. Civ. 544, 40 S. W. 437, and Wilson v. Smith, 17 
Tex. Civ. 192, 43 S. W. 1089, all reaffirming rule; Bergstrom v. Kiel, 
28 Tex. Civ. 537, 67 S. W. 784, that complainant's attorneys were 
assured judgment would not be taken out of her separate estate will 
not support equitable relief; McCorkle v. Everett, 16 Tex. Civ. 560, 
41 S. W. 139, new trial may be granted at a subsequent term for 
mistake. See note, 30 L. R. A. 787. 

Party Seeking New Trial After Term lias Expired must show that 
justice has not been attained, and that he has good grounds to be- 
lieve a different result will be had on another trial. 

Approved in Johnson v. Templeton, 60 Tex. 239, Ratto v. Levy, 63 
Tex. 281, Clegg v. Darragh, 63 Tex. 361, McGloin v. McGloin, 70 Tex. 
636, 8 S. W. 305, Alexander ▼. San Antonio Lumber Co. (Tex. Sup.), 
13 S. W. 1025, and Merrill v. Roberts, 78 Tex. 30, 14 S. W. 255, all . 
reaffirming rule; Nichols v. Dibrell, 61 Tex. 543, children are estopped 
from setting up homestead rights in property where judgment was 
taken against their deceased father; Smith v. Patrick (Tex. Civ.), 43 
S. W. 535, reaffirming rule in broker's suit for compensation. 

A Grant of Land Within the Littoral leagues, and granted without 
the consent of the president of Mexico, is void. 

(Ill) 



29 Tex. 17-39 NOTES ON TEXAS EEPOBTS. 112 

Approved in Wood v. Welder, 42 Tex. 407, consent of the federal 
executive was essential to grants within ten border leagues. 

Fossessioii Under Void Eleven League Orant held to create no de- 
fense under statute of limitation, as against government patent which 
has but just issued. 

Approved in Wood v. Welder, 42 Tex. 410, in absence of evidence 
of date of location of survey, limitation will only run from date of 
patent. 

29 Tex. 17-22, SHIPMAN v. AIJ.EE. 

It is not Error to Discontinne Suit as to married woman, who is a 
joint surety on promissory note, and take judgment against other 
sureties. 

Approved in Keithley v. Seydell, 60 Tex. 81, plaintiff, in suit 
against several defendants on lost note may dismiss as to part of de- 
fendants and take judgment against balance. 

A Discontinuance may be Entered against one of several defend- 
ants at the time that judgment entered against the others. 

Approved in Adams v. Addington, 4 Woods, 393, 16 Fed. 93, re- 
affirming rule; Houston Navigation Co. v. Dwyer, 29 Tex. 384, dis- 
continuance as to one defendant in an action for tort, no ground for 
reversal of judgment. 

29 Tex. 22-30, FOSTER v. CHAMPIiEN; 

Undor the Laws of Texas and the Oommon Law as adopted in this 
state, it is not necessary for bond to have private seal or scroll to 
make same valid. 

Approved in Bussell v. McCampbell, 29 Tex. 37, reaffirming rule; 
Hart v. Kanady, 33 Tex. 724, attachment bond must have seals or 
scrolls to make it valid; Bernhard v. De Forrest, 36 Tex. 519, not 
necessary for seals or scrolls to be on attachment bonds — this case 
overrules Bead v. Levy, 30 Tex. 738, and Hart v. Kanady, 33 Tex. 720; 
Clayton v. Mooring 42 Tex. 183, not necessary to have seal or scroll 
on sequestration bond; Johnson v. State, 1 Tex. Ap. 339, common law 
of England, with reference to evidence, substantially adopted by our 
code. 

Distinguished in Bead v. Levy, 30 Tex. 742, where attachment bond 
has neither scroll nor seal, under the act of March 11, 1848, it was 
rightly quashed. 

Surety and Indorser of Note, sued with their principal, may by 
their answer require that judgment first be levied on principal's prop- 
erty situate in the county. 

Approved in Hooks v. Bramlette, 1 Tex. Ap. Civ. 501, reaffirming 
rule; Coffin v. Loomis (Tex. Civ.), 41 S. W. 511, allowing question of 
auretyship to be adjudicated in such suit, provided the judgment is 
BO framed as not to interfere with plaintiff's remedy. 

29 Tex. 31-39, BUSSELI* v. McOAMPBELL. 

An Appeal Bond need not be under seal. 

Beaffirmed in Hart v. Kanady, 33 Tex. 724. 

Under the Act of January 27, 1842, all judgments of courts of record 
operate as liens against the property of the defendant, provided execu- 
tion was issued thereon within one year. 

Approved in Black v. Epperson, 40 Tex. 184, reaffirming rule; Bar- 
ron y. Thompson, 54 Tex. 241, execution must issue on judgment within 



113 NOTES ON TEXAS BEPOBTa 29 Tex. 40-48 

one year to continue the lien; Adams v. Crosby, 84 Tex. 101, 19 S. W. 
356, on failure to issue execution on judgpnent, under act of 1842, 
from term to term, the judgment lien is ended. 

29 TegE. 40-43, BBOWNE ▼. JOHNSON. 

Bnling of the Court in Ovemiling Demnrrer will not be revised, 
where not assigned as error, except to ascertain if error goes to the 
foundation of the action. 

Approved in City of San Antonio v. Talerico, 98 Tex. 155, 81 S. W. 
519, where petition bad on general demurrer, overruling of exceptions 
considered though not properly assigned; Williams v. Truitt, 1 Tex. 
Ap. Civ. 258, errors not assigned will not be considered by appellate 
court. 

Where Negro was Delivered to bailee to keep until demanded, held 
that no cause of action would arise until demand is made. 

Approved in Texas etc. B. B. v. Morse, 1 Tex. Ap. Civ. 182, 183, 
plaintiff must show goods were destroyed by negligence of bailee 
before he can recover; Wilson v. Southern etc. B. B., 62 Cal. 172, 
where property in hands of bailee is destroyed by fire, plaintiff must 
prove negligence to recover therefor. 

29 Tex. 44-46, 94 Am. Dec. 251, STATE v. OAMPBELIi. 

An Offense Oreated by Statute may be charged in words of the stat- 
ute if every fact necessary to constitute the offense is charged or 
implied by such language. 

Approved in Cross v. State, 17 Tex. Ap. 477, and State v. Hodgson, 
66 Yt. 151, 28 Atl. 1093, both reaffirming rule; State v. McG ruder, 125 
Iowa, 742, 101 N. W. 646, upholding indictment for sodomy alleging 
in statutory language that defendant committed crime against nature 
by having carnal copulation with boy in opening of body other than 
sexual parts. See notes, 94 Am. Dec. 259; 95 Am. Dec. 129; 3 Am. 
St. Bep. 279, 281; 4 Am. St. Bep. 449; 6 Am. St. Bep. 397; 14 Am. St. 
Bep. 371; 48 Am. St. Bep. 546; 53 Am. St. Bep. 26; 54 Am. St Bep. 
469. 

29 Tex. 47-48» 94 Am. Dec 268, POBTWOOD v. STATXL 

Not Snillcient for Indictment to Charge Offense in langruage of stat- 
ute contrary to obvious intention of legislature and well-known prin- 
ciples of law. 

Approved in Hoskey v. State, 9 Tex. Ap. 203, reaffirming rule; 
Simms v. State, 2 Tex. Ap. 114, indictment for burglary should 
allege the crime defendant intended to commit; Philbrick v. State, 
2 Tex. Ap. 519, indictment for burglary must allege the felony 
intended to be committed by defendant; White v. State, 3 Tex. Ap. 
607, indictment for swindling, alleging offense in language of stat- 
ute not sufficient; Webster v. State, 9 Tex. Ap. 76, indictment for 
burglary must charge all the constituent elements of the crime of 
theft; Bodriguez v. State, 12 Tex. Ap. 553, indictment for burglary 
charging defendants entered house with intent to steal is insuffi- 
cient; Bamhart v. State, 154 Ind. 178, 56 N. E. 213, indictment for 
burglary muvt allege ownership of property defendant intended to 
steal. Cited in following notes: 94 Am. Dec. 254, and 3 Am. St. Bep. 
279. 

2 Tex. Notes— 8 



29 Tex. 48-79 NOTES ON TEXAS REPORTS. 114 

29 Tez. 48-^3, SMITH v. aABBETT. 

Where Vendor of Land agreed sot to sue on purcliaBe money notes 
if vendee did not "make crops/' parol proviso that vendee make good 
crops is inadmissible. 

Approved in Peak v. Blythe, 1 Tex. Ap. Civ. 12, and History Co. 
V. Flint, 4 Tex. Ap. Civ. 368, 15 S. W. 914, both reaffirming rule; 
Scarbrough v. Alcorn, 74 Tex. 362, 12 S. W. 74, parol evidence may 
be introduced to show deed was intended as a mortgage; Harper 
V. Kelley, 1 Tex. Ap. Civ. 17, parol evidence is admi&isible to show 
a new and distinct contract discharging old contract; Ablowich 
v. Greenville Nat. Bank, 22 Tex. Civ. 274, 54 S. W. 795, parol evi- 
dence not admissible to contradict terms of promissory note; New- 
man V. Blum (Tex. Sup.), 9 S. W. 179, in written transfer of a 
claim, prior parol agreement that certain attorneys' fees were to be 
excluded from the account is inadmissible; Fuqua v. Pabst Brewing 
Co. (Tex. Civ.), 36 S. W. 480, where written instruments do not 
indicate that they are not entire, other contemporaneous agreements 
are inadmissible. 

29 Tez. 53-74, PAGE ▼. ABNIM. 

A Party will be Estopped by His Declarations when made for the 
purpose of deceiving, when injured party reliee on such declarations 
and is actually deceived. 

Approved in Peters v. Clements, 52 Tex. 143, Qrigsby ▼. Caruth, 
57 Tex. 271, 272, Bynum v. Preston, 69 Tex. 292, 5 Am. St. Rep. 
52, 6 S. W. 430, Security etc. Trust Co. v. Caruthers, 11 Tex. Civ. 
441, 32 8. W. 843, Florida etc. Club v. Hope Lumber Co., 18 Tex. 
Civ. 167, 44 8. W. 13, Shattuek v. McCartney, 1 Tex. Ap. Civ. 280, 
and Taylor v. Tompkins, 1 Tex. Ap. Civ. 589, all reaffirming rule; 
Watson V. Hewitt, 45 Tex. 475, only injured persons acting on faith 
of declarations can plead estoppel; Mayer v. Ramsey, 46 Tex. 375, 
equitable estoppel may be proved under plea of not guilty; Hefner v. 
Downing, 57 Tex. 580, agreement to establish boundary may be im- 
plied from acquiescence; Fielding v. Du Bose, 63 Tex. 636, holder 
of mortgage is estopped from collecting same by his araertions to 
purchaser of land; Risien v. Brown, 73 Tex. 142, 10 S. W. 664, one 
having exclusive right to use of stream n'^t estopped to assert such 
right by permitting another to use it; Whiteselle v. Texas Loan 
Agency (Tex. Civ.), 27 S. W. 315, party musrt; so act on the declara- 
tion as to change his position for the worse. 

A Party may be Estopped by His Acts and Dedarations made with 
design to influence the other, although both parties were ignorant of 
the true facts. 

Approved in Whitsett v. Miller, 1 Posey U. C. 211, reaffirming rule. 

Continuance Properly Refused where opposite party admits fact 
f/ought to be proved. 

Approved in Murph v. McCullough, 40 Tex. Civ. 405, 90 8. W. 70. 
reaffirming rule. 

29 Tex. 74-79, 94 Am. Dec. 260, AUiEY v. CABLETON. 

A Way of Necessity Across Anotlier's Land must be for more than 
convenience of the party seeking it. 

Approved in Hall v. Austin, 20 Tex. Civ. 63, 48 8. W. 55, reaffirming 
rule; International etc. R. Co. v. Richmond, 28 Tex. Civ. 525, 67 S. W. 
1036^ mere convenience of adjoining land owner will not justify open- 



115 NOTES ON TEXAS BEPOBTS. 29 Tex. 80-85 

ing in fence on railroad right of way; Hoosier Stone Co. v. Malott, 130 
Ind. 24, 29 N. E. 413, grant of right to pass over land for particular 
purpose is confined to such purpose. See note, 8 L. B. A. 59. 

Way of Necessity Exists Only so Long as necessitj continues. 

Cited in following notes: 36 Am. Bep. 417; 85 Am. Dec. 676; 85 
Am. Dec. 677; 100 Am.'Dec. 115; 100 Am. Dec. 117; 8 L. B. A. 59. 

Bi£^t of Way Appurtenant inheres in the land and passes with the 
grant. 

Cited in Kruegel v. Nitschman, 15 Tex. Civ. 642, 40 S. W. 69, ap- 
plying rule where d«ed to land not abutting on road silent as to 
right of ingress and egress. See notes, 85 Am. Dec. 680; 99 Am. Dec. 
358; 41 Am. St. Bep. 193. 

Blgbt of Way by Necessity arises in favor of one who conveys land 
completely surrounding land which he retains. 

Approved in Holman v. Patterson, 34 Tex. Civ. 347, 78 S. W. 991, re- 
affirming rule. See note, 13 L. B. A. 126. 

Semble, that right of way may arise from prescription. 

Cited in Ball ▼. State, 44 Tex. Cr. 186, 69 S. W. 513, following rule. 

Orant of Blglit of Way in Gross is personal and incapable of as- 
sign ntent. 

Cited in the following notes: 77 Am. St. Bep. 681; 100 Am. Dec. 116; 
100 Am. Dec. 119; 100 Am. Dec. 609. 

29 Tex. 80-85, McDONAU) v. OBEY. 

An Acknowledgment to Take a Debt Ont of the Bar of the statute 
of limitation mu^ be clear, unambiguous, and free from qualifications. 

Approved in Beynolds Iron Works v. Mitchell (Tex. Civ.), 27 S. 
W. 512, reaffirming rule; Wright v. Farmers' Nat. Bank, 31 Tex. Civ. 
407, 72 S. W. 104, where defendant promised to pay "as soon as he 
could," his ability to pay must be proved; Krueger v. Krueger, 76 Tex. 
180, 12 S. W. 1005; acknowledgment of debt, to take it out of statute 
of limitation, should be unqualified; Oppenheimer v. Fritter, 1 Tex. 
Ap. Civ. 158, the phrase "renewed this 24th February, 1879," indorsed 
on note, was held sufficient to take note out of E;tatute of limitation; 
BroTJv-ne v. French, 3 Tex. Civ. 452, 22 S. W. 584, promise sufficient to 
take debt out of operation of limitation may be implied. 

If a Oondition to Fay a Debt Barred by the statute of limitation 
be a compromise, plaintiff must prove an acceptance of such offer to 
take advantage of the acknowledgment of the debt. 

Approved in Lange v. Caruthers, 70 Tex. 722, 7 S. W. 606, reaffirm- 
ing rule; Beynolds Iron Works v. Mitchell (Tex. Civ.), 27 S. W. 512, 
where ineolv«nt party's compromise offer is not accepted, it is insuffi- 
cient. See note, 102 Am. St. Bep. 777. 

An Acknowledgment of a Part of a Debt, with a denial of the re- 
mainder, will take the portion so acknowledged out of the statute of 
limitation. 

Approved in Henry v. Boe, 83 Tex. 452, 18 S. W. 809, 15 L. B. A. 
639, reaffirming rule; Yaws v. Jones (Tex. Sup.), 19 S. W. 445, lim- 
itation may be waived as to the principal without waiving it as to the 
interest. 

Judgment Being Excessive, but cured by remittitur, the costs of 
appeal will be adjudged againfet appellee. 

Approved in Pearse v. Tootle, 75 Tex. 150, 12 S. W. 537, appellee 
must pay costs of appeal, where remittitur on default judgment is 
entered after appeal. 



29 Tex. 85-107 NOTES ON TEXAS BEPOBTSL 116 

29 Tex. 85-89, SUMMEBUN ▼. BEEVB8. 

Motioii to DismiBB Writ of Eetot, on ground of omission of nnme of 
plaint iffy overmled where writ of error properly described judgment 
and parties. 

Approved in Stephenson t. Texas etc. By., 42 Tex. 165, and Weems 
V. Watson (Tex. Civ.), 39 8. W. 136, both reaffirming rule. 

Where One of the Parties to the Suit is not a perty to the writ of 
error and is not cited, it is a fatal error. 

Approved in Leidecker t. Batto, 1 Tex, Ap. Civ. 472, reaffirming 
rule; Thompson v. Pine, 55 Tex. 429, all parties defendant in error 
should be cited; Weems v. Watson, 91 Tex. 39, 40 S. W. 723, petition 
for writ of error omitting one of the names of the original plaintiffs 
is fatally defective. 

29 Tex. 89-91, OILDEB ▼. McINTTBE. 

In an Action upon a Note It is Neceesary to aver some act on the 
part of the maker which will legally fix the liability on him. 

Approved in Mc!Anally v. Vickry (Tex. Civ.), 79 S. W. 859, holding 
petition sufficient within rule of cited case; Bremond t. Johnsmn, 1 
Tex. Ap. Civ. 326, petition in suit on promissory note must all^^e 
the execution and delivery of the note. 

The Withdrawal, by Defendant, of Hie Answer amounts to a judg- 
ment nihil dicit. 

Approved in Graves v. Cameron, 77 Tex. 275, 14 S. W. 59, and 
Wheeler t. Boberts, 2 Tex. Ap. Civ. 124, both reaf^ming rule. 

29 Tex. 95-97, GBIEB ▼. STATE. 

Appellant's Becognizance Acknowledging "his heirs and legal 
representatives bound to the tftate in the sum of five hundred dollars," 
held void because not binding appellant himself. 

Approved in McLaren v. State, 3 Tex. Ap. 681, a bond binding de- 
fendant to appear and answer the charge of malicious mischief is 
void. 

29 Tex. 97-107, MEBBIMAM y. FULTON. 

Where Principal Places in Hands of Agent instrument authorizing 
him to do a certain act, the principal will be bound by his acts with 
third parties. 

Approved in Hull v. East Line etc. B. B., 66 Tex. 621, 2 S. W. 
832, reaffirming rule; Southwestern Tel. etc. Co. y. Dale (Tex. Civ.), 
27 S. W. 1061, in determining whether agent of telegraph and tele- 
phone company had authority to receive written message, the char- 
acter of its business and usual practice of its agents may be con- 
sidered j Flewellen v. Mittenthal (Tex. Civ.), 38 S. W. 235, one aur 
thorized to use another's name in conducting saloon may sign his 
name to note given to secure the license. 

Principal is Bound by Acts of His Agent with third parties done 
within the apparent scope of the agent's authority, though in viola- 
tion of private instructions. 

Approved in New York etc. Ins. Co. v. Bohrbough, 2 Tex. Ap. Civ. 
168, Barnes v. Downes, 2 Tex. Ap. Civ. 474, Watkins y. Morley, 
2 Tex. Ap. Civ. 638, Strozier v. Lewey, 3 Tex. Ap. Civ. 167, and 
Lillard v. Mitchell, 3 Tex. Ap. Civ. 557, all reaffirming rule; Eastern 
Mfg. Co. V. Brenk, 32 Tex. Civ. 98, 73 S. W. 539, upholding agent's 
written contract that goods might be returned if unsatisfactory; 



117 NOTES ON TEXAS REPORTS. 29 Tex. 107-127 

* 

Clarkson v. Reinhartz (Tex, Civ.), 70 8, W. 112, where agent agreed 
to leave eheek of purchasers at bank rather than give check at time of 
sale; Thompkina Machinery etc. Co. v. Peter, 84 Tex. 631, 19 8. W. 862, 
deelarations of one claiming to be agent of a company not sufficient to 
tathorize party to deal with him a.& such; Gulf etc. Ry. v. Hume, 
87 Tex. 219, 27 S. W. 112, principal is bound by acts of his agent 
done apparently within agent's authority; Missouri etc. Ry. v. Cook, 
8 Tex. Civ. 382, 27 8. W. 771, conductor of passenger train may 
bind company by agreeing to stop at a switch; Halff v. O'Connor, 
14 Tex. Civ. 196, 37 8. W. 241, agent making contract may stipulate 
liquidated damages for its breach by his principal; Atchison etc. 
R. S. V. Bryan (Tex. Civ.), 37 S. W. 235, rule applied in case arising 
o?er shipment of one in name of another on his "grazing contract" 
wbere earrier'a agent knew the fact. 

29 Tbx. 107-121, 94 Am. Dec 264, MOBOAN ▼. DIBBLE. 

In Absence of Special Agreement, the mere landing of goods upon 
the wharf does not discharge the carrier from further liability. 

Apinroved in T. & P. Ry. v. Schneider, 1 Tex. Ap. Civ. 48, reaffirm- 
ing rule; Houston etc. Ry. Co. v. Trammell, 28 Tex. Civ. 315, 68 8. 
W. 717, tender of cattle at midnight insufficient, under circumstances. 
Cited in note, 100 Am. Dec. 546. 

29 Vex. 121-123, OOODLET ▼. STAMPS. 

A Judgment NiMl Didt la a Form of judgment by default, and 
waives error, which judgment does not. 

Approved in Wheeler y. Roberts, 2 Tex. Ap. Civ. 124, reaffirming 
role. 

Petition Stating Oanee of Action is as eseential to suit where judg- 
ment is by confession as otherwise. 

Approved in Shropshire y. Smith (Tex. Civ.), 37 8. W. 470, on re- 
kearing in suit on guaranty, petition stating balance due to be "about 
eight hundred dollars" ia subject to special demurrer. 

29 Tbx. 124-125, LEWIS ▼. MILI.S. 

Writ of Error not Properly Served will be dismissed, though defend- 
ant ^pears and waives service, if plaintiff in error does not appear. 

Approved in Wilson v. Adams, 50 Tex. 14, where plaintiff in error 
is negligent in getting service, the defendant in error may appear and 
ask affirmanee on certificate. 

89 Tez. 12&-127, GLENN v. SHELBUBNE. 

PUintlir luM No Bigbt to Take Judgment by default on petition, 
iUed on the fourth day of the term, on which defendant has waived 
lervlee. 

Approved in Bridges v. Reynolds, 40 Tex. 209, and Kennedy v. Mc- 
Coy, 46 Tex. 221, both reaffirming rule; Anear v. Epperson, 54 Tex. 
225, 38 Am. Rep. 627, judgment which iu voidable for failure of ser- 
vice eannot be set aside on collateral attack. 

Distinguished in Byers v. Brannon (Tex. Sup.), 19 8. W. 1094, 
where defendant in foreclosure suit waivee by written agreement 
notice and accepts service and agrees that judgment may be ec 
tered at coming term, the judgment ie valid, although petition not 
filed when agreement was made. 



29 Tex. 127-135 NOTES ON TEXAS REPORTS. 118 

29 Tex. 127-129, McLANE v. BUSSELL. 

In Order to Give Jurisdiction on appeal, notice of appeal mnst be 
given and entered of record during the term, and bond filed within 
twenty days after the term. 

Approved in Bonner v. Ferrell, 3 Tex. Civ. 445, 22 8. W. 418, 
where record faile; to show appellant gave notice of appeal, the 
appeal will be dismissed; McMahon v. City Bank (Tex. Civ.), 61 
S. W. 953, holding bond filed after time limit, even by consent, does 
not confer jurisdiction; Traylor v. Lide (Tex. Sup.), 7 S. W. 62, 
instance where judgment in personam against nonresident by justice 
of peace on publication was upheld; Fortune v. Elillebrew (Tex. 
Civ.), 21 S. W. 990, neither pleadings nor process are necessary to a 
statutory award; Luckey ▼. Warren (Tex. Civ.), 23 S. W. 617, tran- 
script must show that notice of appeal was given as required by 
article 1387 of Revised Statutes; Sanger v. Burke (Tex. Civ.), 44 
S. W. 871, court of appeals has no jurisdiction where appeal bond is 
not filed within prescribed statutory time. 

Where Appeal Bond is Filed With the Proper File-mark of the clerk, 
its approval will be presumed. 

Approved in Bridges v. Cundiff, 45 Tex. 439, McFalls v. Brown 
(Tex. Civ.), 36 S. W. 1110, and Whitman Agricultural Co. v. Voss, 
2 Tex. Ap. Civ. 492, reaffirming rule; E. L. & R. R. B. v. Davis, 1 
Tex. Ap. Civ. 285, appeal bond from justice's court marked filed is 
presumed to have been approved; Ten Brook v. Maxwell, 5 Ind. Ap. 
354, 32 N. E. 107, where appeal bond is necessary in perfecting appeal, 
its absence in record is fatal to appeal; Nelms v. Draub (Tex. Civ.), 
22 S. W. 996, approval of appeal bond will be presumed where clerk 
acted upon it as approved; Folts v. Ferguson (Tex. Civ.), 24 8. W. 
658, arguendo; Stone v. Sledge (Tex. Civ.), 24 S. W. 698, married 
woman cunnot be estopped becauf^ of her voluntary deed when it was 
defectively acknowledgfed, unless she be guilty of positive fraud; 
Moore v. Moore (Tex. Civ.), 31 S. W. 534, parent cannot indemnify 
himself out of child's estate for ita support unlesB unable to provide 
for the child. 

29 Tex. 129-135, EOKHABDT v. SCHLECHT. 

Fraudulent Declarations of the Husband cannot para title to or 
create charge upon homestead where the wife is in no wise implicated. 

Approved in Newman v. Farquhar, 60 Tex. 644, and Cetti v. Den- 
man, 26 Tex. Civ. 437, 64 S. W. 789, both reaffirming rule; Thomas 
V. Williams, 50 Tex. 274, removal from homestead to village for 
purpose of educating children not an abandonment of homestead; 
Blagge V. Moore, 6 Tex. Civ. 364, 23 S. W. 472, wife not estopped 
from reclaiming land conveyed at void sale where her husband re- 
ceived proceeds thereof; Texas Land etc. Co. v. Cooper (Tex. Civ.), 
67 S. \V. 175, where hu&band had second deed to homestead executed, 
obtained the purchase money notes, and sold them; San Antonio etc. 
Asen. v. Stewart, 27 Tex. Civ. 304, 65 S. W. 667, husband cannot, by 
his own act, waive or extend lien on homestead created in writing by 
himself and wife. 

Distinguished in Ranney v. Miller, 51 Tex. 270, where land was 
the separate property of husband. 

Wife's Conveyance of the Homestead, without her separate acknowl- 
.edgment is void. 

Approved in Cole v. Bammel, 62 Tex. Ill, reaffirming rule* 



119 NOTES ON TEXAS BEPOBTS. 29 Tex. 135-162 

29 Tex. 13&-141, 94 Am. Dec 270, FOWLKES v. BAEBR. 

Sll£^t Evidmice Is Sufficient to Establiah Authority from parent to 
minor son to purchase necessaries. 

Approved in Girls' Industrial Home v. Fritcbey, 10 Mo. Ap. 347, the 
estate of a widowed mother is liable for support of her children. 
Cited in following notes: 74 Am. Dec. 781, 782. 

Parents are Ordinarily Bound for necessaries furnished their minor 
children. 

Cited in following notes: 74 Am. Dec. 777, 779. 

29 Tez. 141-150, McHUGH y. PECK. 

The Statute With Reference to Submitting Matters of dispute to 
arbitration makes no provision for pleadings. 

Approved in GTantier v. McHenry, 15 Tex. Civ. 333, 39 S. W. 603, 
not necessary articles of agreement of arbitration to state amount 
of controversy; Alexander v. Mulhall, 1 Powy U. C. 767, neither plead- 
ing nor process is required in arbitration; Alexander v. Mulhall, 1 
Posey IJ. C. 768, parties to arbitration may waive filing of agreement. 

Appellate Court will Presume That Parties to arbitration had 
notice of the time and place of meeting, where record does not show 
the contrary. 

Approved in Warren v. Tinsley, 53 Fed. 693, an umpire has no 
right to decide on evidence before him, without notice to the opposite 
party. 

A Referee's Rei»ort on the Facts of the caw stands as the verdict 
of the jury. 

Approved in Elder v. McLane, 60 Tex. 386, report of referee, in 
arbitration, stands upon same footing as the verdict of a jury. 

A Valid Award has the Force of an Adjudication, and sufficiently 
conclud€B the parties from litigating the same matters. 

Approved in Bowden v. Crow, 2 Tex. Civ. 594, 21 S. W. 613, re- 
affirming rule. 

It will be Presumed, after judgment on award, that it was by con- 
sent of parties. 

Approved in Fortune v. Killebrew (Tex. Civ.), 21 S. W. 990, sub- 
mission and voluntary appearance of parties to a statutory award 
confer jurisdiction. 

29 Tez. 150-154, ALLEN v. WTSER. 

In Suits Where Citation is by Publicatlcm the plaintiff is held in 
strict compliance with law. 

Approved in Stegall v. Huff, 54 Tex. 197, Byrnes v. Sampson, 74 
Tex. 84, 11 S. W. 1075, and Netzorg v. Geren, 26 Tex. Civ. 121, 62 
8. W. 790, all reaffirming rule; Chaffee v. Bryan, 1 Tex. Ap. Civ. 423, 
sheriff's return of citation, by publication, muvt show that same was 
served according to law. 

29 Tex. 158-162, BURKE ▼. THOMSON. 

Power to Amend Return After the Term, where judgment is by 
default, should be so exercised as not to deprive defendant of any 
substantial right of defense. 

Approved in Coffee v. Black, 50 Tex. 119, four days' notice is 
reasonable time on application to correct judgment; Pennsylvania etc. 
Ins. Co. V. Wagley (Tex. Civ.), 36 S. W. 998, allowing flle-mark on 
petition to be corrected nunc pro tunc. 



29 Tex. 163-185 NOTES ON TEXAS REPOBTS. 120 

29 Tex. 16S-169, GRAY v. McFABLAND. 

An Order of the County Court to administrator to pay an allowance 
is a conelusiye and binding judgment upon the administrator and 
bondsmen. 

Approved in Hornung v. Schramm, 22 Tex. Civ. 329, 54 S. W. ei6, 
reaffirming rule; Leaverton v. Leaverton, 40 Tex. 223, an order of 
allowance to widow and children cannot be attacked collaterally; 
Bopp V. Hansford, 18 Tex. 345, 45 8. W. 747, order of court fixing 
amount due by guardian is conclusive. 

Plea of Payment mnst State Dates and Facts, and if payment be in 
notes, it must be stated that they were accepted or money has or 
could have been realized. 

Approved in Hunter v. Penland (Tex. Civ.), 32 S. W. 423, a noto 
given and accepted in satisfaction of a debt is payment thereof. 

29 Tex. 170-172, McMAHAN v. BOABDMAN. 

When Affidavit for Attachment states that defendant was non- 
resident, "so that the ordinary process of law cannot be served on 
him," held this latter statement was mere harmless surplusage. 

Approved in Biesenbach v. Key, 63 Tex. 80, Tanner etc. Engine Co. 
V. Hall, 22 Fla. 397, 399, both reaffirming rule. 

29 Tex. 172-179, DICKINSON v. LOTT. 

The Statute of Limitation must be facially set forth in the^ 
answer of defendant, before it its available as a defense. 

Approved in Garthright v. Wheat, 70 Tex. 742, 9 S. W. 77, reaffirm- 
ing rule; Hudson v. Wheeler, 34 Tex. 364, statute of limitation may be 
interposed by special demurrer, or special exception; Davidson v. Mo. 
Pac. By., 3 Tex. Ap. Civ. 219, statute of limitation may be interposed 
by special exception. Cited in note, 69 Am. Dec. 455. 

Whether Letters are Sufficient Acknowledgment to Take a Debt. 

out of the bar of limitation is a question of fact for the jury. 

Approved in Krueger v. Krueger, 76 Tex. 180, 12 S. W. 1005, new 
acknowledgment, to take a debt out of statute of limitation, must 
contain an unqualified admission of such debt; Reynolds Iron Works 
V. Mitchell (Tex. Civ.), 27 S. W. 512, instance where letters from an 
insolvent firm offering to sell their homes if certain compromise was 
effected were held no admission of the indebtedness. 

29 Tex. 179-181, OOBDES v. KAUFFMAN. 
Sickness of Garnishee is &nifficient excuse for his nonappearance. 
Reaffirmed in Nelson v. Hart (Tex. Civ.), 23 S. W. 832. 

Article 39, O. ft W. Dig., prescribes the duty of garnishee when 
appearing to testify in the case in order to be discharged. 

Approved in First Nat. Bank v. Robertson (Tex. Sup.), 19 S. W. 
1070, instance where answer of bank as garnishee regarding debtor's 
ownership of its stock was held insufficient for its discharge. 

29 Tez. 18S-185, BONATS v. STATE. 

Mere Finding of Still 'Upon defendant's premises and liquor in 
barrels held not to warrant conviction for illegal distilling. 

Approved in Pogue v. State, 12 Tex. Ap. 294, circumstantial evidence 
to warrant a conviction must exclude every hypothesis but that of' 
defendant's guilt. 



121 NOTES ON TEXAS EEPOBTS. 29 Tex. 18G-196 

29 Ttoz. 186-188, COTTON y. STATE. 

In a CivU Case, the Verdict will not be reverBed, because un- 
supported by evidence, unless there was a motion for new trial made 
and overruled. 

Approved in Black v. Black (Tex. Civ.), 67 S. W. 929, applying rule 
to trial by court; Jacobs v. Hawkins, 63 Tex. 5, in a civil case, judg- 
ment will not be reversed, on the evidence, unless motion for new trial 
was made; Clark v. Pearce, 80 Tex. 151, 15 S. W. 789, verdict will not 
be reversed on invufficiency of evidence in absence of motion for new 
trial; International etc. Ry. v. Douglas, 7 Tex. Civ. 555, 27 S. W. 794, 
case will not be reversed on question of evidence not relied on in 
motion for new trial. 

In a Criminal Case the App^ate Court is required to review the 
facts, when the cam is appealed, whether there has been a motion for 
new trial or not. 

Approved in Sears v. Green, 1 Posey IT. C. 733, reaffirming rule. 

29 Tex. 188-190, BHODES v. STATE. 

A Court is the Judge of Its Own Records and has the right to 
correct same at a subsequent term. 

Approved in Ximenes v. Ximenes, 43 Tex. 463, and Cox v. State, 
7 Tex. Ap. 499, both reaffirming rule; Plasters v. State, 1 Tex. Ap. 684, 
judgment in criminal ca^e, which shows neither a plea nor arraign- 
ment, will be set avide; Turner v. State, 7 Tex. Ap. 598, where lost 
indictment is substituted, records must show such fact. Cited in note, 
65 Am. Dec. 132. 

29 Tex. 191-196, McMAHAN V. BUfiBT. 

To Entitle a Party to a Continuance on first application he must 
make it appear by affidavit that he has used due diligence to procure 
the testimony. 

Approved in Green v. Dunman, 35 Tex. 176, affidavit for continuance 
must show diligence used to procure witness; Texas etc. By. v. Hardin, 
62 Tex. 370, application for continuance on account of absent witness 
must state county in which witness resides; dissenting opinion in 
Missouri etc. By. v. Hogan (Tex. Civ.), 30 S. W. 688, majority holding 
the placing of tnibpoena in hands of officer in ample time together with 
search for absent witness during the four days previous to the trial 
sufficient for continuance. Cited in note, 74 Am. Dec. 145. 

Filing Interrogatories for a Witness, with waiver of commission, is 
not due diligence in providing testimony justifying continuance. 

Approved in Blum v. Baswett, 67 Tex. 196, 3 S. W. 35, service of 
subpoena on witness is sufficient diligence. * 

When the First Application for Continuance complies with the 
statute, it is error to refuse it. 

Approved in Hannah v. Chadwick, 2 Tex. Ap. Civ. 466, ruling of 
court on application for continuance addressed to his discretion will 
not be revised. 

Where Application for Continuance ia addressed to the discretion of 
the court, his ruling thereon will not generally be revised. 

Approved in Texas etc. By. v. Hardin, 62 Tex. 369, reaffirming rule. 

It is the Better Practice to Except to the Ruling of the court over- 
ruling an application for continuance. 

Approved in Supreme Commandery Knights v. Bose, 62 Tex. 322, 
reaffirming rule; San Antonio etc. By. Co. v. Klaus, 34 Tex. Civ. 493, 



29 Tex. 199-216 NOTES ON TEXAS BEPORTS. 122 

79 S. W. 59, denial of motion to withdraw case from jury not re- 
viewable without bill of exceptions; Texas etc. Ey. v. Hardin, 62 
Tex. 373, exception to ruling of court on application for continuance 
must set out error complained of; Simpson v. Texas etc. Lumber Co. 
(Tex. Civ.), 51 S. W. 655, bill of exceptions must be taken to re- 
fusal of continuance. 

Where Affidavit for OontinaaJice does not show legal diligence 
but simply excuse for it, it should show a meritorious defense, and 
that the evidence can be procured in a reasonable time. 

Approved in White v. Waco Bldg. Assn. (Tex. Civ.), 31 Q. W. 
59, where the only defense to a note is a general denial continuance 
is properly refused. 

Where Affidavit for Continuance does not show legal diligence but 
excuse for not using it, it is addressed to sound discretion of court. 

Approved in Gulf etc. Ry. v. Rowland (Tex. Civ.), 35 S. W. 32, 
application failing to show an attempt to take deposition of wit- 
ness residing in sister state is addressed to court's discretion. 

29 Tex. 199-202, PBESSI^Y V. TESTABD. 

Petition for Foreclosure not sufficiently describing the property 
held not to support a judgment nihil dicit which was similarly vague. 

Approved in Blackburn v. McDonald, 1 Posey U. C. 359, reaffirm- 
ing rule. 

Distinguished in Knowles v. Torbitt, 53 Tex. 558, where convey- 
ance covered the whole survey. 

29 Tex. 202-204, G£RAIJ> V. BXTBTHEE. 

If Defendant Acknowledge Service, waive process, and confess 
judgment, judgment will be valid without affidavit of justness of 
debt. 

Approved in Smith v. Ridley, 30 Tex. Civ. 160, 70 S. W. 236, and 
Chestnutt v. Pollard, 77 Tex. 88, 13 S. W. 862, both reaffirming rule; 
Rankin v, Filburn, 1 Tex. Ap. Civ. 441, power of attorney to con- 
fess judgment need not be acknowledged or proved for record. Cited 
in note, 99 Am. Dec. 277. 

29 Tex. 204-216, 94 Am. Dec. 274, CI^VELAND v. WILLIAMS. 

Where the Seller of Personal Property Makes a Proposition and 
the buyer accepts, and seller has possession of goods and nothing 
remains to identify them, the sale is complete. 

Approved in Smith v. Whitfield, 67 Tex. 126, 2 S. W. 823, and Laux 
V. Glass, 1 Tex. Ap. Civ. 674, both reaffirming rule; Midland Nat. Bank 
V. Strickland, 32 Tex. Civ. 92, 74 S. W. 588; where buyer gave note 
for stoves, which were to remain in seller's warehouse until called for; 
Maddox v. Dabney (Tex. Civ.), 27 S. W^ 901, actual delivery of prop- 
erty is unnecessary where bill of sale is made; Sanger v. Thomasson 
(Tex. Civ.), 44 S. W. 409, holding sale of goods complete under the 
rule; Goldberg v. Bussey (Tex. Civ.), 47 S. W. 51, shingle sale should 
designate the particular shingles, so that delivery could be made; 
Downey v. Taylor (Tex. Civ.), 48 S. W. 542, as between the parties, 
transfer of chattels In payment of debt is complete sale without 
delivery. Cited in following notes: 97 Am. Dec. 413; 97 Am. Dec. 
442; 99 Am. Dec. 690; 3 Am. St. Rep. 210; 6 Am. St. Rep. 237; 7 
Am. St. Rep. 43; 39 Am. St. Rep. 44; 53 Am. St. Rep. 39. 

Distinguished in Municipal Imp. Co. v. Ulvalde Asphalt Co. (Tex. 
Civ.), 76 S. W. 448, no delivery of chattel, though left at place desig- 



123 NOTES ON TEXAS BEPOETS. 29 Tex. 204-216 

nated, if key not delivered; Avery ▼. Popper, 179 IT. 8. 315, 45 L. 
207, 21 Sup. Ct. Rep. 97, where rule as applied to mortgage was held in 
arguendo to have been overruled by later decision, but rule was not 
applied in ease at bar because of no federal question being involved; 
Edwards v. Irvin (Tex. Civ.), 45 S. W. 1028, where cattle contract 
was for no definite cattle and buyer was not to pay for any except 
those delivered at certain place, it is a completed sale. 

A Sale of Personal Property Is not Complete so long as there re- 
mains something to be done to identify the property. 

Approved in Allen v. Melton, 64 Tex. 219, and Boaz ▼. Schneider, 
69 Tex. 132, 6 S. W. 404, both reaffirming rule; Cooper v. Caleb, 
1 Tex. Ap. Civ. 247, sale of personal property is incomplete when 
it remains to be designated and set apart; Crowdus v. Sanders, 3 
Tex. Ap. Civ. 561, title to chattels does not pass under an executory 
contract; Tillman v. Janks, 4 Tex. Ap. Civ. 246, 15 S. W. 40, whero 
vendor retains possession of personal property, such sale is prima 
facie fraudulent; Johnson v. State (Tex. Ap.), 13 S. W. 651, in- 
stance where contract was held an executory sale of cattle on 
trial of one of the parties for theft of one of them; Tillman v. 
Janks (Tex. Ap.), 15 S. W. 40, instance where purchaser of several 
barrels of whisky from failing saloon-keeper, left in saloon-keep- 
er's possession and by him sold to another, was held fraudulent 
sale as to first buyer. Cited in note, 100 Am. Dec. 260. 

Wlien Gk>od8 Sold axe Designated and Set Apart from the stock 
or quantity with which they are mixed, the sale is complete. 

Approved in Blanton v. Langston, 60 Tex. 150, Hopkins v. Part- 
ridge, 71 Tex. 608, 10 S. W. 215, Anderson ▼. Levyson, 1 Tex. Ap. 
Civ. 521, Tyler Lumber Co. v. Eosenfield, 3 Tex. Ap. Civ. 413, Bail 
▼. Little Palls Lumber Co., 47 Minn. 425, 50 N. W. 472, and Collins 
V. Wayne Lumber Co., 128 Mo. 466, 31 S. W. 28, all reaffirming rule; 
Owens V. Clark, 78 Tex. 550, 15 S. W. 102, where sale of personal 
property is complete a delivery thereof is unnecessary; Stephens v. 
Adair, 82 Tex. 222, 18 S. W. 103, under an executed contract of 
sale of personal property, delivery of possession is not necessary 
to pass title; Kean v. Zundelowitz, 9 Tex. Civ. 356, 29 S. W. 932, 
when agreement of sale is complete and property is identified the 
title passes to purchaser; Triplett v. Morris, 18 Tex. Civ. 53, 44 S. 
W. 686, when agreement to sell goods is complete, such goods not 
subject to attachment by seller's creditors; Griffin v. Wright, 1 
Tex. Ap. Civ. 343, delivery of goods unnecessary where sale was for 
entire stock; Bland v. Brookshire, 3 Tex. Ap. Civ. 546, title to 
property passes by sale without delivery if such be their intention; 
International etc. By. v. Ogbum, 26 Tex. Civ. 222, 63 S. W. 1074, 
1075, where title to railroad ties was held to have passed on de- 
livery of them at right of way and inspection by railroad; Foley 
V. Felrath, 98 Ala. 180, 39 Am. St. Bep. 43, 13 So. 486, where sale 
is complete and goods perish without fault of vendor, purchaser 
must pay purchase price. 

Where Sale is Made by Seller, but the property is not designated 
and set apart and the seller dies, the title of the property does not 
pass. 

Approved in Wellborn v. Odd Fellows* Bldg. etc. Co., 56 Tex. 505, 
reaffirming rule. See note, 23 L. B. A. 709. 

Agenrs Antbority, If not Coupled Witb an Interest^ ceases on 
death of the principal. 



29 Tex. 216-225 NOTES ON TEXAS EBP0BT8. 124 

Cited in following notes: 39 Am. Dee. 88, 89; 12 Am. St. Bep. 29; 
14 Am. St. Bep. 178; 36 Am. St. Bep. 700; 77 Am. St. Bep. 547. 

29 Tex. 216-225, HAWLEY ▼. BUUiOCK. 

The Elder Conveyance is Valid, and passes title without regis- 
tration, except as to subsequent purchaserSi for a valuable consid- 
eration, without notice. 

Distinguished in Beaumont Pasture Go. t. Preston, 65 Tex. 456, 
holding certified copy of testimonio was lawfully admitted in evi- 
dence. 

A Subseciuent Purchase must be Made for value paid, without 
notice of former conveyance, to be protected as innocent purchase. 

Approved in Bremer v. Case, 60 Tex. 153, reaffirming rule; Tur- 
ner V. Cochran, 94 Tex. 484, 61 S. W. 924, holding burden on pur- 
chaser to prove compliance with the rule; Uhl v. Musquez, 1 Posey 
U. C. 658, presence of an original archive in county clerk's office not 
sufficient notice; Stewart v. Crosby (Tex. Civ.), 26 S. W. 140, pay- 
ment of fifty-five dollars for land sold previously for three thou- 
sand seven hundred dollars and other larger sums is insufficient to 
constitute one bona fide purchaser. 

Distinguished in Kimball v. Houston Oil Co., 100 Tex. 341, 99 
S. W. 854, different rule as to burden of proof prescribed by act of 
1836. 

Actual Kotice is Where One baa Eiiowledge of the deed, and con- 
structive notice is brought home to party by registration of deed. 

Approved in Bobertson v. McClay, 19 Tex. Civ. 515, 48 B. W. 
36, burden of proving purchase for value is on claimant under 
junior deed; Banney v. Hogan, 1 Posey U. C. 257, a subsequent 
purchaser, without notice of unrecorded deed, will take good title; 
Barnett v. Squyres (Tex. Civ.), 52 S. W. 614, recorded deed is con- 
clusive notice unless party has actual notice. 

Possession by Owner in Person or by. Tenant is sufficient notice 
to subsequent purchasers. 

Approved in Wimberly v. Bailey, 58 Tex. 226, Eylar v. Eylar, 60 
Tex. 319, Smith v. James, 22 Tex. Civ. 156, 54 S. W. 43, and Hawley 
V. Greer (Tex. Sup.), 17 S. W. 916, all reaffirming rule; CoUum v. 
Sanger Bros., 98 Tex. 164, 82 S. W. 460, possession notice of title 
acquired by one tenant in common from another; Bamirez v. Smith, 
94 Tex. 190, 59 S. W. 260, possession by one cotenant notice, 
though he has only equitable title; Mainwarring v. Templeman, 
51 Tex. 213, possession either in person or by tenant is no- 
tice equivalent to registration; Bhine v. Hodge, 1 Tex. Civ. 371, 21 
S. W. 141, possession of claimant's ancestor sufficient notice of claim 
of title; Mattfleld v. Huntington, 17 Tex. Civ. 719, 43 S. W. 54, pos- 
session of a part of a tract by tenant is notice of owner's title; 
Le Doux V. Johnson (Tex. Civ.), 23 S. W. 906, attachment suit in 
. which the rule was held applicable. See note, 13 L. B. A. (n. s.) 53, 
54, 74, 76, 100. 

Qualified on rehearing in Bamirez v. Smith (Tex. Civ.), 56 S. W. 
259, rule was approved on first hearing, but qualified on rehearing 
to extent that inquiry of person in possession is necessary only 
where the possession is held under eircumstances indicating a claim 
on part of possessor. 



125 NOTES ON TEXAS BEPOBTS. 29 Tex. 226-237 

Payment of PnicluuM Money in a deed making grantee a bona 
fide purchaser should be proved otherwise than by recitals of his 
deed. 

Approved in H. & T. C. B. B. v. Chaffin, 60 Tex. 555, Olenden- 
ning V. Bell, 70 Tex. 634, 8 8. W. 325, and Lindsay v. Freeman, 83 
Tex. 267, 18 S. W. 731, all reaffirming rule; League v. Snyder, 5 
Tex. Civ. 15, 23 S. W. 826, possession by tenant sufficient notice of 
claim of title in his landlord; Lake v. Hancock, 38 Fla. 61, 56 Am. 
St. Bep. 163, 20 So. 814, burden of proving purchase for value is 
on claimant under lost deed; Bogers v. Verlander, 30 W. Ya. 644, 
5 S. E. 860, recitals in deed of payment of purchase money not 
sufficient evidence of such fact. 

Where Defendant dalniB Title through a sheriff's execution sale, 
the plaintiff will not be heard to impeach the sale for fraud where 
he is not affected by such sale. 

Approved in Gruner v. Westin, 66 Tex. 217, 18 S. W. 514, re- 
affirming rule; Cravans v. Wilson, 35 Tex. 56, purchaser at judi- 
cial sale on voidable judgment may obtain good title; Boggess v. 
Howard, 40 Tex. 158, stranger to title cannot question validity of 
sale on dormant judgment; Laughter v. Seela, 59 Tex. 179, in ab- 
sence of proof to contrary, sheriff's sale will be presumed to be 
regular; Maverick v. Flores, 71 Tex. 118, 8 8. W. 637, sale under 
dormant execution is not void, but voidable. 

Objectionji to SherUTs Sale can only be made by injured party, 
the defendant in execution. 

Approved in Houston v. Blythe, 60 Tex. 514, arguendo. Cited in 
following note: 65 Am. Dec. 95. 

Miscellaneous. — Miscited in State v. Cooper, 112 La. 284, 104 Am. 
St. Bep. 447, 36 So. 351. 

29 Tex. 226-237, FHILUPS ▼. STATE. 

Where Statute Makes Two or More distinct acts, connected with 
the same transaction, indictable, an indictment for such offenses 
should connect such acts with conjunction "and." 

Approved in Lancaster v. State, 43 Tex. 520, Hart v. State, 2 Tex. 
Ap. 42, Boach v. State, 8 Tex. Ap. 490, and Davis v. State, 23 Tex. 
Ap. 638, 5 S. W. 150, all reaffirming rule; Countryman v. State, 52 
Tex. Cr. 24, 105 S. W. 181, indictment for carrying brass knuckles 
on "or" about defendant's person insufficient. 

Court may Properly Befnae to Notice an Objection to indictment 
not raised by special demurrer or exception in lower court when not 
reached by general demurrer. 

Approved in West v. State, 6 Tex. Ap. 494, defendant cannot call 
into question the form of oath administered to the grand jury. 

Where Indictment Charges Offense Substantially in the language 
of the statute, and is sufficient to put defendant on notice what 
crime he is charged with, it is sufficient. 

Approved in Hart v. State, 2 Tex. Ap. 41, in charging an offense. 
It is generally sufficient to follow language of statute; WilliamFi v. 
Sttfte, 3 Tex. Ap. 130, indictment for murder, not alleging part of 
the body of deceased the mortal wound was inflicted, is not bad; 
Greenlee v. State, 4 Tex. Ap. 347, the offense must be set forth in 
plain and intelligible words; Johnson v. State, 9 Tex. Ap. 252, an 
indictment for uttering forged instrument, alleging such instru- 
ment to be "false and forged/' is sufficient; Black v. State, 18 Tex. 



29 Tex. 240-256 NOTES ON TEXAS EEPORTS. 126 

Ap. 129, indictment for burglary need not describe property intended 
to be stolen, where the intent to commit theft is relied on. Cited 
in note, 94 Am. Dec. 258. 

Indictment Need not so Minutely Describe Offense as to entirely 
supersede proof of its identity when judgment is pleaded in bar to 
second prosecution. 

Approved in State v. Elmore, 44 Tex. 103, holding indictment 

for assault '*upon one , a freedman, whose name is to grand jurors 

unknown," good. 

MTliere a Man Does an Act With the Intent which the law forbids, 
it will not avail him that he also intended an ultimate good. 

Approved in Pike v. State, 40 Tex. Cr. 615, 616, 51 S. W. 396, 397, 
reaffirming rule; Penn v. State, 43 Tex. Cr. 609, 68 S. W. 171, no 
defense to unlawful sale of liquor that defendant did not know it 
to be intoxicating; Allen v. State (Tex. Or.), 59 S. W. 265, it is 
no defense to prosecution for violation of local option law that 
defendant sold the liquor in good faith, not believing it to be in- 
toxicating. 

Distinguished in Bird v. State, 46 Tex. Cr. 138, 79 S. W. 26, that 
defendant cut bushes in graveyard because they sheltered pole- 
cats, material on question whether he acted "wrongfully" within 
meaning of statute. 

29 Tex. 240-246, WILSON ▼. STATE. 

An Indictment for Murdering a Slave was held not to support ver- 
dict acquitting defendant of murder, but finding him guilty of cruel 
and unusual treatment of the slave. 

Approved in Presley v. State, 30 Tex. 161, reaf&rming rule. 

Under an Indictment for Murder and Violent Assault, the defend- 
ant may be convicted of assault with intent to kill. 

Approved in Stapp v. State, 3 Tex. Ap. 146, indictment charging 
murder by violence includes assault with intent to murder; Ex parte 
Curnow, 21 Nev. 37, 24 Pac. 432, under an indictment for murder, 
defendant may be convicted with assault to kill. 

Where Chastisement of Slave so severe as to cause death, offense 
is murder. 

See note, 60 L. B. A. 804. 

29 Tex. 247-256, OXTIiBEBTON v. CABEEN. 

Affidavit for Attachment Setting Forth Two Grounds in the al- 
ternative was properly quashed. 

Approved in Carpenter v. Pridgen, 40 Tex. 33, 34, Blum v. l>avis, 
56 Tex. 426, Dunnenbaum v. Schram, 59 Tex. 282, Pearre v. Haw- 
kins, 62 Tex. 436, and Stansell v. Cleveland, 64 Tex. 663, all re- 
affirming rule. 

That Party is About to Secrete His Property for the purpose of 
defrauding his creditors is a separate ground for attachment from 
that of transferring it for same purpose. 

Approved in Pearre v. Hawkins, 62 Tex. 435, affidavit for attach- 
ment charging two inconsistent grounds is defective. 

Distinguished in Booth v. Denike, 65 Fed. 45, holding affidavit 
for garnishment in suit pending in federal court may be amended; 
and in Stokes v. Potter, 10 B. I. 576, holding that in the state of 
Bhode Island affidavit' for attachment may set forth two or moie 
causes disjunctively. 



127 NOTES ON TEXAS REPORTS. 29 Tex. 247-256 

Suit Brovglit on Notes not Due and attachment saed out, the suit 
must abide the decision on the attachment, as attachment alone gives 
the right of action. 

Approved in New York etc. Ins. Co. v. English, 96 Tex. 273, 72 8. 
W. 59, installments secured by life policy did not all become due 
on death of insured and refusal of insurer to pay first installment; 
Gimble v. Gomprecht, 89 Tex. 499, 35 S. W. 471, affidavit for attach- 
ment need not state that debt is due; Burns v. True, 5 Tex. Civ. 
77, 24 S. W. 340, when debt was not due when suit filed, but defect 
enied by amendment; Stephenson v. Bassett, 51 Tex. 545, where suit 
is opon several notes, and prayer for judgment on but two, it is 
error to fender judgment on all; King v. Frazer, 2 Tex. Ap. Civ. 
697, judgment in an attachment suit is void if rendered before debt 
is due; Rabb v. White (Tex. Civ.), 45 S. W. 851, quashing of writ 
of attachment leaves suit as if none had ever issued. 

In Actions of Attachment defendant may have judgment for dam- 
iges on plea in reconvention for damages when attachment is wrong- 
fully sued out. 

Approved in Dreiss v. Faust, 1 Tex. Ap. Civ. 21, Tillman v. Adams« 
2 Tex. Ap. Civ. 267, Yarborough v. Weaver, 6 Tex. Civ. 218, 25 S. W. 
468, all reaffirming rule; Elser v. Pierce, 2 Tex. Ap. Civ. 647, malice 
and want of probable cause must both concur to support charge of 
malicious prosecution; Smith v. Jones, 11 Tex. Civ. 20, 31 S. W. 
307, vexation, annoyance, money spent in defense of suit, are ele- 
ments of exemplary damages; Lay v. Blankenship, 2 Posey U. C. 
273, exemplary damages not recoverable when there is probable 
eaose. 

WhAre Attachment is Sued Ont Maliciously and without probable 
cause, defendant may be entitled to exemplary damages. 

Approved in Jacobs v. Crum, 62 Tex. 413, Matthews v. Boydstun 
(Tex. Civ.), 31 S. W. 820, and Bear v, Marx, 63 Tex. 303, all re 
affirming rule; Lynch v. Burns (Tex. Civ.), 79 S. W. 1086, and 
FaroQX v. Comwell; 40 Tex. Civ. 533, 90 8. W. 538, both holding 
malice and want of probable cause must concur; 3rown ▼. Tyler. 
34 Tex. 172, in absence of malice the measure of damages for wrong- 
fully suing out injunction is actual damages sustained; Munnerlyn 
V. Alexander, 38 Tex. 128, in attachment proceedings jury may allow 
reasonable compensation to defendant for use of property; Mitchell 
V. Silver Lake Lodge, 29 Or. 299, 45 Pac. 799, probable cause re- 
lieves plaintiff in attachment from exemplary damages. 

Any Unlawful Act Done Willfully and Purposely to the injury 
of another is, as against that person, malicious. 

Approved in Carothers v. Mcllhenny, 63 Tex. 142, Farrer v. Tal- 
ley, 68 Tex. 352, 4 8. W. 560, and Viviola v. Kuezek, 1 Tex. Ap. Civ. 
341, all reaffirming rule; Jacobs v. Crum, 62 Tex. 415, where plain- 
tiff believed he had reasonable grounds for suing out attachment 
will repel the theory of malice; Schwartz v. Burton, 1 Tex. Ap. , 
Civ. 699, loss or injury to credit an element of damages; Gee v. 
Culver, 13 Or. 600, 11 Pac. 303, improper motive constitutes malice. 
The Question of Malice is for the Jury, to be determined from the 
facts and circumstances proved. 

Approved in Jacobs v. Crum, 62 Tex. 408, the question of malice 
is for the jury to determine; Jacobs v. Crum, 62 Tex. 416, infer- 
ence of malice may be repelled by showing probable cause for su- 



29 Tex. 257-270 NOTES ON TEXAS REPOBTS. 128 

ing out attachment; Conly ▼. Wood (Tex. Sup.), 12 S. W. 616, and 
Matthews v. Boydstun (Tex. Civ.), 31 S. W. 820, both holding malice 
may be inferred by jury from want of probable cause. 

Such Facts must Appear, or be Communicated, to plaintiff, as to 
induce him to believe he had just cause to sue out attachment to 
entitle him to defeat plea for exemplary damages. 

Approved in Kaufman v. Wicks, 62 Tex. 237, reaffirming rule. 

29 Tex. 257-262, MENABD V. SYDNOS. 

Judgment Sabjectlng tlie Wife's Separate Property to payment of 
a debt where there was no pleading justifying such judgment was 
held erroneous. 

Approved in Smithers v. Smith, 35 Tex. Civ. 511, 80 S. W. 647, 
Wofford V. linger, 65 Tex. 483, I. & G. N. R. R. v. Gordon, 72 Tex. 
51, 11 S. W. 1034, and Grand Island Banking Co. v. Wright, 53 Neb. 
583, 74 N. W. '85, all reaffirming rule; Rhodes v. Gibbs, 39 Tex. 440, 
443, holding a married woman can encumber her separate property 
for necessaries; Harris v. Williams, 44 Tex. 126, wife's separate prop- 
erty is liable for her necessaries; Cooke v. Avery, 147 U. S. 396, 37 
L. 216, 13 Sup. Ct. Rep. 348, 37 L. 216, personal judgment cannot be 
rendered against a married woman for use of land. Cited in note, 55 
Am. Dec. 603. 

Without Averment Maldng Debt Sued for charge on separate estate 
of wife, general judgment against her cannot be sustained. 

Approved in Peet v. Hereford, 1 Tex. Ap. Civ. 503, Blum v. Fergu- 
son, 1 Tex. Ap. Civ. 305, and Texas etc. Ry. v. Logan, 3 Tex. Ap. Civ. 
228, all reaffirming rule; Cooper v. Conerty, 83 Tex. 136, 18 S. W. 335, 
judgment must conform to the pleading; Wheeler v. Burks (Tex. Civ.), 
31 S. W. 434, judgment against married woman as indorser and guar- 
antor of promissory note is erroneous unless made for her separate 
benefit. 

As Men Bind Themselves, so must they stand bound. 

Approved in Linch v. Paris Lumber etc. Co., 80 Tex. 37, 15 S. W. 
213, and Leader v. Austin, 1 Tex. Ap. Civ. 196, both reaffirming rule; 
Linch V. Paris etc. Grain Co. (Tex. Sup.), 14 S. W. 702, where build- 
ing contract calls for particular kind and make of columns others 
cannot be substituted therefor. 

Terms of Contract Free from Ambiguity, and not against policy of 
the law to enforce, establishes rights of the parties thereto. 

Approved in Mutual Life Ins. Co. v. Elliott, 93 Tex. 149, 53 S. W. 
1015, reaffirming rule; Hypse v. Avery Mfg. Co., 32 Tex. Civ. 410, 74 
S. W. 813, upholding contract giving seller right to cancel order at 
any time before shipment. 

29 Tex. 262-270, DEMABET V. BENNETT. 

Purchaser of Land, Under an Executory Contract^ will not be com- 
pelled to accept defective title and pay purchase money, in absence 
of agreement to that effect. 

Approved in Gober v. Hart, 36 Tex. 141, and Talkin v. Anderson 
(Tex. Civ.), 19 S. W. 354, both reaffirming rule. 

Purchaser in Possessioii TTnder Deed of Warranty, without notice 
of defect in title, may resist payment of purchase money by showing 
title worthless. 

Approved in Ogburn v. Whitlow, 80 Tex. 242, 15 S. W. 808, Groes- 
beck V. Harris, 82 Tex. 417, 19 S. W. 852, and Blanks v. Bipley, 8 



129 NOTES ON TEXAS REPORTS. 29 Tex. 273-281 

Ter. Civ. 159, 27 S. W. 734, all reaffirming rule; Price t. Blount, 41 
Tex. 475, purchaser under warranty cannot resist payment of pur- 
chase money by showing his title is doubtful; Fondren ▼. Leake, 1 
Posey U. C. 153, damage to property caused by vendor after sale can- 
not be pleaded as failure of consideration. Cited in notes, 70 Am. 
Dec. 341; 21 L. B. A. (n. s.) 368. 

Pnrchafier Wbo lias Oone into Possession under a defective title 
most surrender posse'ssion of premises and surrender up deed for can- 
cellation, to resist payment of purchase money. 

Approved in Estell v. Cole, 52 Tex. 177, under an executory con- 
traet of sale, vendor must give notice to vendee of his intention to 
rescind; Linn v. Willis, 1 Posey U. C. 164, holding answer failing to 
deny validity of title or offer to surrender deed insufficient. 

Distinguished in Bolin v. Guieral (Tex. Civ.), 37 S. W. 619, where 
plaintiif offered to do equity in the matter. 

Where Purchaser Goes into Possession with notice of defective title, 
he cannot withhold payment of purchase money on that ground. 

Approved in Bryan v. Johnson, 39 Tex. 33, Norris v. Ennis, 60 Tex. 
85, HoUoway v. Blum, 60 Tex. 629, and Zimpelman v. Hipwell, 54 
fed. 853, all reaffirming rule; Haralson v. Langford, 66 Tex. 114, 18 
S. W. 340, defendant must show his title is a failure, to resist pay- 
■ent of purchase money; Bancho Bonito Land etc. Co. v. North, 92 
Tex. 75, 45 S. W. 995, vendee owning superior title to land cannot 
resist payment for inferior title he afterward acquires; Moore v. 
Yogel, 22 Tex. Civ. 238, 54 S. W. 1063, defendant must allege and 
prove his ignorance of the defect in title; Colonial etc. Mtg. Co. v. 
Tabbs (Tex. Civ.), 45 S. W. 624, parol is admissible to show that 
mortgagee knew of true condition of mortgagor's title and assumed 
the risk. Cited in note, 56 Am. Dec. 58. 

PnxdiaMr cannot Rescind as to part of land to which title is de- 
fective but should rescind as entirety. 

See note, 21 L. B. A. (n. s.) 396, 398. 

2B TO. 273-275, VATTGHAN V. STATE. 

Wbun Scire Facias was to be Served npon Two Defendants, the 
return of the sheriff failing to show that a copy was delivered to 
each defendant, held defective. 

Approved in Fulton v. State, 14 Tex. Ap. 33, reaffirming rule. 

Distinguished in Polnac v. State, 46 Tex. Cr. 72, 80 S. W. 382, where 
return shows service on three different defendants on three different 
days, it will not be assumed that the same defendant was served on 
each day. 

29 Tez. 275-281, OHILSON ▼. BEEVES. 

When tlia Bequiranents of the Statute are met by affidavits for 
first and second continuances, it is not within the discretion of the 
court to refuse. 

Approved in Barth v. Jester, 3 Tex. Ap. Civ. 268, and Texas etc. 
Sy. V. Nelson, 50 Fed. 815, both reaffirming, rule; Low etc. Water 
Co. V. Hickson, 32 Tex. Civ. 459, 74 S. W. 783, where nonresident 
defendant taken sick, failure to take his deposition not want of 
diligence; Cleveland v. Cole, 65 Tex. 404, when first application for 
eontinnance is in strict compliance with law, it should be granted. 

When the Affidavit for Continuance Does not Meet the requirements 
of the statute, it is addressed to the discretion of the court. - 

2 Tex. Notes — 9 



29 Tex. 275-281 NOTES ON TEXAS BEPORTS. 130 

Approved in Stanley v. Epperson, 45 Tex. 651, application for con- 
tinuance failing to meet requirements of statute will be overruled; 
East Texas Land etc. Co. t. Texas Lumber Co., 21 Tex. Civ. 413, 52 
S. W. 647, third application for continuance is addressed to sound 
discretion of court; Addington v. Bryson, 1 Tex. Ap. Civ. 751, motion 
for new trial on ground of lack of time to make application for 
continuance must be supported by affidavit; International etc. B. B. 
V. Fisher (Tex. Civ.), 28 S. W. 400, instance where excuse for failure 
to have absent witness, who was a traveling man, was held not to 
show due diligence; Gulf etc. By. v. Bowland (Tex. Civ.), 35 S. W. 
32, application failing to show attempt to take deposition of witness 
residing in sister state, but setting out excuse for not doing ao, is 
addressed to court's discretion. 

Application for Conttnnanca^ addressed to court's discretion, on 
ground of absent witness should state facts expected to be proved by 
him, in addition to allegation that the cause of action or defense is 
just and meritorious. 

Approved in dissenting opinion in Missouri etc. By. v. Hogan (Tex. 
Civ.), 30 S. W. 688, majority holding fact that subpoena for material 
witness was given to officer ih ample time, and fact that from time 
of knowledge of witness' whereabouts being unknown inquiry was 
made, shows sufficient diligence. 

Wlien an Insiifflcient Application for continuance is overruled, but 
upon motion for new trial it appears that appellant did in fact have 
good grounds for continuance, a new trial should be granted., 

Approved in Bubrecht v. Powers, 1 Tex. Civ. 284, 21 S. W. 320^ 
application for continuance should state evidence expected to be 
proved by absent witness; Texas etc. By. v. Hardin, 62 Tex. 370, 
application for continuance on account of absence of witness should* 
state where witness resides. 

Where Application for Ck>ntiniiance Bests npon equitable grounds, 
the affidavit should make a full statement of the facts. 

Approved in O'Connor v. Lucio, 14 Tex. Civ. 684, 39 S. W. 140, res 
judicata applies to all matters that should have been pleaded in suit. 

Where Party Suffers Judgment of Foreclosure on and sale of home- 
stead, without pleading his homestead exemption, it is too late to set 
up such plea in suit of ejectment. 

Approved in Murphy v. Wallace, 3 Tex. Ap. Civ. 512, Thompson v. 
Lester, 76 Tex. 523, 14 S. W. 21, and Graham v. Culver, 3 Wyo. 655,. 
31 Am. St. Bep. 120, 29 S. W. 276, all reaffirming rule; Clevenger v. 
Figley, 68 Kan. 720, 75 Pac. 1008, judgment foreclosing mortgage 
given by owner of land jointly with guardian of insane wife involv- 
ing erroneous decision of questions as to whether premises homestead 
at time of mortgage, is not collaterally attackable. See notes, 62 
Am. Dec. 550; 73 Am. Dec. 218. 

Where PlaJntiff Purchases Defendant's Property at execution sale, 
with understanding that defendant should have it on payment of bid, 
plaintiff then becomes .trustee of such party with lien to extent of 
his bid. 

Approved in Neil v. Yager, 22 Tex. Civ. 634, 55 S. W. 420, reaffirm- 
ing rule; Nichols v. Dibrell, 61 Tex. 541, res judicata applies to 
matters that might have been litigated as well as those which were 
litigated in suit; Thomas v. Hammond, 47 Tex. 55, parol evidence is- 
admissible to establish a trust in lands. 



131 NOTES ON TEXAS BEPORTS. 29 Tex. 282-316 

89 Tax. 282-290, BASNBTX ▼. LGGUK 

A Sworn Plea Wliicli Denies the execution of notes merely puts their 
execution in issue. 

Approved in Steagall y. Levy, 3 Tex. Ap. Civ. 569, reaffirming rule. 

A Bearer or IndoFBer of a Note haying legal, but not the equitable, 
title to same may sue in his own name, and maker can make all de- 
fenses that he may haye thereto, the same as if suit was by payee. 

Approyed in Llano Improyement etc. Co. y. Cross, 5 Tex. Ciy. 178, 
24 8. W. 78, reaffirming rule; Frank y. Kaigler, 36 Tex. 307, where 
snit is brought in name of another, plaintiff by amendment may pro- 
ceed in his own name; Jensen y. Hays, 2 Tex. Ap. Civ. 500, holder 
of bill may sue, notwithstanding it has been indorsed to another. 

29 Tex. 295-299, STATE V. KETIPPA. 

Lidictment for Forgery by alteration of instrument must allege in 
what alteration consists. 

Approved in State y. Mitten, 36 Mont. 382, 92 Pac. 971, following 
rale. 

29 Tte. 299-316, 94 Am. Dec. 292, COONNELIi ▼. DUKE. 

Where JmdA is Sold by Metea and Bounds, and contains a surplus,, 
the question whether the seller can recoyer such surplus must depend 
spoB the peculiar circumstances of each case. 

Approyed in Hunter y. Morse, 49 Tex. 234, deed conyeying unsold 
portion of league will convey all the unsold portion regardless of 
quantity. Cited in note, 28 Am. St. Bep. 847. 

Where Parties have Contracted for Sale of Irfmd in Ignorance of a 
anmber of acres contained in the tract sold, which operates injuriously 
to one of the parties, equity will relieve against such injury. 

Approyed in Farenholt y. Perry, 29 Tex. 317, Ladd y. Pleasants, 
39 Tex. 417, Bich y. Ferguson, 45 Tex. 398, Benfro y. Huling, 2 
Posey U. C. 280, Wuest y. Moehrig, 24 Tex. Civ. 126, 57 S. W. -865, 
Crislip ▼. Cain, 19 W. Va. 496, and Doctor v. Purch, 76 Wis. 170, 44 
N. W. 652, all reaffirming rule; Willard v. Sanford, 33 Tex. Civ. 595, 
77 8. W. 290, mutual mistake as to quantity of land; Willoughby v. 
Long, 96 Tex. 199, 71 S. W. 547, where section of school land larger 
tkan supposed, state could not sell excess against will of purchaser; 
Troy y. Ellis, 60 Tex. 632, vendor conveying tract of land by acre 
■ay recover for surplus; Moore v. Hazelwood, 67 Tex. 626, 4 S. W. 
216, equity wiU afford relief to injured party under deed with mis- 
taken description; Wheeler v. Boyd, 69 Tex. 298, 6 S. W. 617, in suit 
for purehase money, defendant may have offset for deficit in amount 
of land conveyed; Culbertson v. Blan chard, 79 Tex. 492, 15 S. W. 701, 
iBAoeent miarepresentation entitles injured party to relief; Bancho 
Boaito Land etc. Co. v. North, 92 Tex. 76, 45 S. W. 996, in absence 
of eviction, vendee has no action against remote vendor on war- 
ranty; Bennett v. Latham, 18 Tex. Civ. 406, 45 S. W. 935, covenant 
of warranty does not cover deficiency in acreage; Jones v. Jones, 2 
Tex. Ap. Civ. 17, false representation as to tillable land, by vendor, 
entitles vendee to relief; Zarzombeck v. Grier (Tex. Civ.), 32 S. W. 
236, applying the rule to caaa at bar; Stark v. Homuth (Tex. Civ.), 
45 S. W. 763, equity will relieve for fraud or mistake as to quantity 
of land conveyed, but not by suit on the warranty; Cartmell v. Cham- 
bers (Tex. Civ.), 54 8. W. 364, where three cotenants, under mutual 
mistake that their land consists of seventeen acres, partition it, and 
ia fact it consisted oi fifty-two acres, equity will relieve the injured 



29 Tex. 316-335 NOTES ON TEXAS EEPORTS. 132 

party. Cited in following notes; 76 Am. Dec. 114, and 98 Am. Dec. 
539. 

Distinguished in Sibley v. Hayes, 96 Tex. 84, 85, 70 S. W. 541, re- 
versing 30 Tex. Civ. 66, 71 S. W. 407, where parties made new con- 
tract for express purpose of obviating difficulty as to quantity; Ken- 
dall V. Wells, 126 Ga. 346, 56 S. E. 42, holding conveyance was of 
land by tract and not by acre and purchaser could not recover of 
vendor on account of deficiency; Newman v. Kay, 57 W. Va. 118, 49 
S. E. 933, 68 L. R. A. 908, vendor cannot rescind contract for sale of 
land in gross on ground of mutual mistake as to quantity resulting 
in considerable excess. 

Where Parties Contract for the Sale of Land by the acre, and only 
intend to risk the usual increase or deficit in quantity, the seller can 
recover surplus. 

Approved in Lancaster v. Richardson, 13 Tex. Giv. 687, 688, 35 S. 
W. 751, 752, reaffirming rule; Gilmore v. Kaufman Co. (Tex. Civ.), 40 
8. W. 40, where sale is by the acre, grantor may recover for the ex- 
cess; Watson V. Cline (Tex. Civ.), 42 S. W. 1038, the words "more 
or less" following number of acres assumes risk for small variation 
either way; Lancaster v. Richardson (Tex. Civ.), 45 S. W. 412, allow- 
ing recovery where purchaser made false representations to seller that 
tract contained a little over two lots, whereas it contained three and 
a half lots. 

Where Seller Would be Liable for Deficit in the amount sold, he 
can recover for surplus in amount sold. 

Approved in Daughtrey v. Knolle, 44 Tex. 457, covenant of war- 
ranty applies to title and not to quantity of land. Cited in note, 28 
Am. St. Rep. 94. 

29 Tex. 31&-317, FABENHOLT ▼. PEBBY. 

Where Quantity of Land Sold is Greater than intended by the par- 
ties, which was purely a mistake, seller can recover surplus. 

Approved in Culbertson v. Blanchard, 79 Tex. 492, 15 S. W. 701, 
under pleading and proof of mutual mistake vendee is entitled to 
relief on purchase money note; Gilmore v. Kaufman Co. (Tex. Civ.), 
40 S. W. 40, where sale is by the acre, grantor may recover for the 
excess. Cited in note, 94 Am. Dec. 289. 

29 Tex. 317-335, WELDEB ▼. CABBOLL. 

The Entire Description in a Patent must be taken, and the identity 
of the land ascertained from a reasonable construction of the lan- 
guage used. 

Approved in Welder v. Hunt, 34 Tex. 45, another phase of same 
case; Weir v. Van Bibber, 34 Tex. 229, entry of land must be of 
such certainty as not to conflict with location of adjacent vacant 
lands; Barnard v. Good, 44 Tex. 640, calls producing conflicting re- 
sults, the one most consistent with grant must be adopted. 

Where the Grant Called for a Map, as part of the description, the 
map is admissible in evidence to explain and sustain the grant. 

Approved in Withers v. Connor, 76 Tex. 191, 13 S. W. 746, reaffirm- 
ing rule; Wilkins v. Clawson, 37 Tex. Civ. 166, 83 S. W. 734, and 
Goodson V. Fitzgerald, 40 Tex. Civ. 623, 90 S. W. 899, both holding 
ambiguity in grant may be cured by map and field-notes referred to 
therein. 



133 NOTES ON TEXAS EEPORTS. 29 Tex. 335-355 

If the Original Itine can "be Bemunreyed and establiBhed by calls 
and ancient landmarks made for its identity by original surveyor, this 
etUblisbes its position. 

Approved in Smith v. Bussell, 37 Tex. 256, and Thompson v. Lang- 
don, 87 Tex. 259, 28 S. W. 935, both reaffirming rule; Burnett v. 
Bnrrias, 39 Tex. 504, location of line must be determined by line as 
actually run upon ground. 

Whsre Locality of Land cannot be Establishisd by personal knowl- 
edge of witness or from information derived from general reputation, 
or from its being pointed out to him by surveyor who run it or by 
one who was then present, the evidence is inadmissible. 

Approved in Titterington v. Trees, 78 Tex. 570, 14 S. W. 693, 
declarations of surveyor are not admissible where his knowledge was 
not original. 

iniere Two Surreys are Sinmltaneoualy Made, one cannot claim 
priority over other because title is of anterior date, nor can boundaries 
of one be enlarged because other has been declared invalid. 

Distinguished in Forsgard v. League (Tex. Civ.), 45 S. W. 175, where 
the surveys were made by different surveyors and not simultaneously, 
tke older grant prevails. 

Where Dividing Line Between Two Snryeys cannot be ascertained, 
the owners must bear mutually the increase or decrease in quantity 
eoDtained in the two surveys. 

Approved in Seller* v. Beed, 46 Tex. 379, and Ware v. McQuinn, 
7 Tex. Civ. 110, 26 S. W. 127, both reaffirming rule. 

Hearsay Evidenoe, TTnder Proper Circnmstancee, is admissible to 
prove ancient boundaries, but it must be received with caution. 

Approved in Bussell v. Hunnicutt, 70 Tex. 660, 8 S. W. 501, declara- 
tions of surveyor who is dead as to distances actually measured by 
hiffl are admissible as evidence; Hunnicutt v. Peyton, 102 U. S. 365, 
366, 26 L. 20, declarations of deceased witness as to location of 
boundary lines admissible as evidence, provided such deceased witness 
knew the truth of his declarations. 

29 TeoL 335-347, GABEL ▼. CITY OF HOUSTON. 

Motion to Qnaflli Writ of Certiorari cannot be made for the first 
time in the «upreme court. 

Approved in G. C. ft S. P. By. v. Conner, 2 Tex. Ap. Civ. 98, re- 
aflirming rule. 

A City Ordinance Providing a Penalty for selling liquor on Sunday 
is not unconstitutional. z 

Approved in Bohl v. State, 3 Tex. Ap. 685, State t. Judge, 39 La. 
Ann. 140, 1 So. 443, and Ex parte Brown (Tex. Cr.), 61 S. W. 396, 
all reaffirming rule; State v. Calloway, 11 Idaho, 727, 114 Am. St. Bep. 
285, 84 Pac. 29, 4 L. B. A. (n. s.) 109, upholding power of Boise City 
under charter to pass ordinance regulating hours of business for 
laloons and providing for Sunday closing; State v. Nichols, 28 Wash. 
631, 69 Pac. 373, upholding Bal. Code, sec. 7251, prohibiting keeping 
of stores open on Sunday, with certain exceptions; Scales v. State, 
47 Ark. 484, 58 Am. Bep. 771, 1 S. W. 771, one who keeps the seventh, 
instead of the first, day of the week as Sabbath, is prohibited from 
laboring on Sunday. 

29 Tex. 34S-366, ANDING ▼. PEBKIN8. 

Judgment win be Beversed where charge does not conform to plead- 
iags, though there be no statement of facts. 



29 Tex. 355-369 NOTES ON TEXAS BEPOBTS. 134 

Approved in Boss ▼. McGowen, 58 Tex. 607, Texas ete. By. v. Mc- 
Allister, 59 Tex. 362, Henry v. Shain, 1 Tex. Ap. Civ. 607, Booker t. 
State, 4 Tex. Ap. 566, and Litton ▼. Thompson, 2 Posey U. C. 579, 
all reaffirming rule; McCarty y. Wood, 42 Tex. 40, action of court, 
erroneously excluding evidence, may be revised by reference to plead- 
ing, without statement of facts; Hill v. Gulf etc. By., 80 Tex. 436, 15 
S. W. 1099, charge of court upon issue not in pleadings may warrant 
reversal of case without statement^ of facts. 

Wbere There was Failure of Title to land certificate sold, the 
measure of damages was held to be the price paid with interest from 
date of purchase. 

Approved in Houston etc. By. v. Jackson, 62 Tex. 212, reaffirming 
rule; Osborne v. Barnett, 1 Tex. Ap. Civ. 51, measure of damages for 
breach of warranty of personal property ii difference of value when 
sound and when defective. 

Frand, Ck>apled With Ooncealment of cauae of action, will prevent 
the running of the statute of limitation. 

Approved in Kennedy v. Baker, 59 Tex. 160, Texas etc. By. v. Gay, 
86 Tex. 608, 26 S. W. 614, 25 L. B. A. 52, and Vodrie v. Tynan (Tex. 
Civ.), 57 S. W. 681, all reaffirming rule; Harris v. Cain, 41 Tex. Civ. 
145, 91 S. W. 869, where plaintiff purchased notes on representation that 
they were secured by vendor's lien ; Pitman v. Holmes, 34 Tex. Civ. 489, 
78 S. W. 963, where confidential relation, mere ailence is fraudulent 
concealment; Boren v. Boren, 38 Tex. Civ. 144, 85 S. W. 51, where 
plaintiff claimed to be deceived as to contents of will of record in 
county where he lived; Brown v. Brown, 61 Tex. 49, concealed fraud 
will prevent running of statute of limitations; Calhoun v. Burton, 64 
Tex. 516, undiscovered fraud prevents running of limitation. 

29 Tex. 355-369, WHITTAKEB Y. HUESKE. 

. Every Sale of Goods by Samples there is an implied warranty that 
the goods, when delivered, shall correspond with the sample. 

Approved in Boehringer v. Bichards Medicine Co., 9 Tex. Civ. 291, 
29 S. W. 511, purchaser must notify seller of his rejection of goods 
within reasonable time. 

Vendor Selling Goods by Sample impliedly warrants goods to cor- 
respond with sample, whether he knows their quality or not. 

Approved in Hume v. Sherman Oil etc. Co., 27 Tex. Civ. 369, 65 
S. W. 392, where contract of sale of linters guaranteed that the ship- 
ment should "average equal samples," it is a warranty. See notes, 
7 Am. Dec. 128; 73 Am. Dec. 268; 70 L. B. A. 663. 

29 Tex. 360-369, TBAMMELL V. McDADE. 

The Certiflcate of a Notary Public to depositions should state that 
the witness swore to and subscribed the depositions. 

Approved in Sabine etc. By. v. Brousard, 69 Tex. 622, reaffirming 
rule. 

Interrogatory in a Deposition which repeated to witness his answer 
to interrogatory in former deposition, held to have been properly 
stricken out as leading. 

Approved in Cleveland v. Duggan, 2 Tex. Ap. Civ. 65, reaffirming 
rule; Coates v. State, 2 Tex. Ap. 19, state's attorney asked ravished 
female, "Was it done with or without your consent f" which was held 
not leading. Cited in following note: 47 Am. Dec. 82, 83. 



135 NOTES ON TEXAS BEPOBTS. 29 Tex. 369-393 

An Agrignimwit of Error in charge of eourt ought to distinctly spec- 
ify the ground on which appellant relies as being erroneous in the 
charge. 

ApproTod in Green v. Dallahan, 54 Tex. 285, Barnard ▼. Tarleton, 
57 Tex. 404, McConnell v. Bruggerhoff, 1 Tex. Ap. Civ. 563, Brooks 
▼. Price, 2 Posey U. C. 121, Ker v. Paschal, 1 Posey TJ. C. 709, and 
Hollman t. H. & T. C. B. B., 2 Posey U. G. 559, all reaffirming rule. 

A Tonjoit in Common may maintain action for partition against 
the other tenant in common who has wrongfully taken and holds the 
entire possession of the property. 

Approved in Worsham v. Vignal, 5 Tex. CIt. 473, 24 8. W. 563, pur- 
chaser from eotenant of the entire property not guilty of conversion 
of the cotenant's interest; Tignor v. Toney, 13 Tex. Giv. 520, 521, 35 
S. W. 881, 882, one eotenant liable to the other eotenant for conver- 
sion; Worsham ▼. Vignal, 14 Tex. Giv. 330, 37 S. W. 19, sale of cattle 
by one joint owner is not conversion. 

29 Tex. 36»-375, WABBEN v. STATE. 

Defendanfs Confession Influenced by Threats or Promise is ad- 
missible against him only where corroborated by facts found as ad- 
mitted by defendant. 

Approved in Walker v. State, 9 Tex. Ap. 40, Kennon .v. State, 11 
Tex. Ap. 362, Allison v. State, 14 Tex. Ap. 128, and Womack v. State, 
16 Tex. Ap. 188, all reaffirming rule; Womack v. State, 16 Tex. Ap. 
199, a eonfession of a party not made in conformity with law is not 
admissible; Strait v. State, 43 Tex. 488, confession by duress must be 
supported by other evidence; Walker v. State, 2 Tex. Ap. 335, con- 
fessions of guilt are to be received with great caution; Speer v. State, 
4 Tex. Ap. 484, confession of defendant made before arrest is ad- 
missible; Davis V. State, 8 Tex. Ap. 514, declarations by defendant in 
confession by duress, not merely explanatory, not admissible; Weller 
V. State, 16 Tex. Ap. 212, 214, where defendant makes statement of 
facts fonnd to be true, his confession as to such facts is admissible; 
Powers V. State, 23 Tex. Ap. 66, 5 S. W. 158, statements of guilt made 
by defendant while in fear of his life were not voluntary; Brown v. 
State, 26 Tex. Ap. 314, 9 S. W. 614, confession by duress admissible 
when facts are corroborated by other evidence. Gited in notes, 6 Am. 
St. Bep. 246; 18 L. B. A. (n. s.) 808, 837. 

An Indictment for Theft of '^va DoUan in lawful money," requires 
proof of taking of coin. 

Approved in Perry v. State, 42 Tex. Or. 541, 61 S. W. 401, holding, 
under indictment for theft of "lawful money of the United States," 
proof of theft of silver certificates or national bank notes a variance. 

In Indictment for Theft of so many dollars lawful money, value of 
money need not be alleged. 

Approved in Territory v. Hale, 13 N. M. 187, 81 Pac. 584, applying 
rule to indictment for embezzlement. 

29 Tex. 385-593, KUHLBfAN ▼. MEDUNEA. 

Where Verdict was npon Special Issaes, the court held it was not 
competent to look to facts in evidence in determining what judgment 
to render on the verdict. 

Approved in Ward v. Oradin, 15 N. D. 656, 109 N. W. 60; McShan 
v. Myers, 1 Posey U. G. 105, and Tripis v. Bosborough (Tex. Giv.), 23 



29 Tex. 394-411 NOTES ON TEXAS REPORTS. 130 

S. W. 232, all reaffirming rule; Pittsburgh etc. R. R. v. Spencer, 98 
Ind. 193, necessary for special verdict to state all the material facts. 
Miscellaneous. — Culmore v. Medlenka (Tex. Civ.), 44 S, W. 677, re- 
ferred to for certain facts in case at bar. 

29 Tex. 894-402, 94 Am. Dec. 290, JACKSON ▼. STOCKBBIDGE. 

Representations Which are Matters of Opinion and matters open to 
the inquiry of both parties, though untrue, will not vitiate a contract 
made thereby. 

Approved in Carson v. Kelly, 57 Tex. 382, Bniner v. Strong, 61 Tex. 
557, 559, conversation between parties before contract was reduced to 
writing not expressed in contract, inadmissible as evidence. See note, 
37 L. R. A. 604. 

Representations, to Vitiate a Contract, must be made with a knowl- 
edge of their falsity, and the other party must have been misled 
thereby. 

Approved in Williams v. Fort Worth etc. Ry., 82 Tex. 561, 18 S. W. 
209, 15 L. R. A. 129, Hawkins v. Wells, 17 Tex. Civ. 363, 43 8. W. 
818, Donoho v. Equitable Society, 22 Tex. Civ. 198, 54 S. W. 648, War- 
ner V. Munsheimer, 2 Tex. Ap. Civ. 345, Dean v. Ingle, 1 Posey U. C. 
189, and History Co. v. Flint, 4 Tex. Ap. Civ. 368, 15 S. W. 914, all 
reaffirming rule; Wooters v. International etc. R. R., 54 Tex. 299, parol 
evidence not admissible to vary terms of written contract; Carson v. 
Houssels (Tex. Civ.), 51 S. W. 291, where sale of cattle was conveyed 
by designated brand as three hundred head ''more or less,'* and buyer 
had made investigation as to number, buyer could not have been de- 
ceived. Cited in following notes: 11 Am. St. Rep. 350; 18 Am. St. Rep. 
560. 

Note Containing Condition That Railroad must be completed to a 
stated point in a given time, held that such condition must have been 
substantially complied with to render maker liable on note. 

Approved in Missouri etc. Ry. v. Tygard, 84 Mo. 268, 54 Am. Rep. 
100, reaffirming rule. 

Miscellaneous.— Foote v. Frost (Tex. Civ.), 39 S. W. 329, cited to 
the point that contract to deliver cattle of certain average from cer- 
tain county cannot be barred by parol that sellers were to have ex- 
clusive right to procure cattle from certain portion of the county. 

Representations That Road would be completed to certain point by 
certain time is but expression of opinion, untruthfulness of which will 
not vitiate subscription. 

See note, 33 L. R. A. 731. 

29 Tex. 402-411, PATTON ▼. BUCKEB. 

Whether There iB Any Evidence is a Question for the judge; 
whether there be sufficient evidence is a question for the jury. 

Approved in Supreme Council ▼. Andersdn, 61 Tex. 301, where there 
is no evidence whatever to sustain a proposition, the court may with- 
draw it from the jury. 

If There be Evidence Conducing to Prove a Itlaterlal Issue in the 
cause, it is error to withdraw the case from the jury. 

Approved in Willis v. Turnley, 1 Tex. Ap. Civ. 434, reaffirming rule; 
Zanderson v. Sullivan, 91 Tex, 503, 44 S. W. 485, parol proof not ad- 
missible to supply omission in contract of sale of land. 

To Conclude a Contract for the Sale of Land by correspondence, 
the minds of the parties must meet and agree in writing. 



137 NOTES ON TEXAS REPORTS. 29 Tex. 412-419 

Approved in Penshorn ▼. Kunkel, 41 Tex. Civ. 98, 90 S. W. 720, "Re- 
ceived of A. W. P. fifty dollars on estate of A. F.," insufficient instru- 
ment for Bale of land; Penn v. Texas etc. Lumber Co., 35 Tex. Civ. 
184, 79 8. W. 844, "the 6,100 acres under consideration in Tyler 
eonnty,** insnfScient description and parol evidence inadmissible to 
aid it; Cnsenbary v. Latimer, 28 Tex. Civ. 218, 67 S. W. 188, denying 
specific performance where land not sufficiently described or identi- 
fied; Texas etc. By. v. Johnson, 14 Tex. Civ. 567, 569, 37 S. W. 974, 975, 
controverted issues should be submitted to the jury; Sullivan v. Zan- 
derson (Tex, Civ.), 42 S. W. 1028, instance of written proposition, for 
sale of land, and its acceptance, which were held as not complying 
with statute of frauds. 

In Suit upon Contract for Sale of Land, general denial by defend- 
ant plaees burden of proving contract capable of enforcement by law 
apon plaintiff. 

Approved in Jones v. Carver, 59 Tex. 295, Aiken v. Hale, 1 Posey 
U. C. 321, and Feeney v. Howard, 79 Cal. 534, 12 Am. St. Rep. 169, 
21 Pae. 987, 4 L. R. A. 826, all reaffirming rule. 

Where Prcqiiosition to Sell Idmd was made in writing, and party ac- 
cepted same by drawing draft for purchase money, which, considered 
in eonnection with letter by parties on subject, held to be sufficient 
contract in writing for sale of land. 

Approved in Moore v. Powell, 6 Tex. Civ. 49, 25 S. W. 475, reaffirm- 
ing role; Foster v. New York etc. Land Co., 2 Tex. Civ. 514, 22 S. W% 
263, acceptance of a written offer to sell land must be in writing. 

29 Tex. 412-413^ RYAN ▼. liABTIN. 

The Betozn of Sheriff on Citation not showing manner of service is 
insufficient. 

Approved in Sun Mutual Ins. Co. v. Seeligson, 59 Tex. 7, reaffirm- 
ing rule; Continental Ins. Co. v. Milliken, 64 Tex. 48, return of cita- 
tion must show that certified copy of plaintiff's petition was delivered 
to defendant. 

29 Tez. 41S-419, JANES V. LANGHAM. 

condition of Appeal Bond, under article 549, is such that binds ap- 
pellant to prosecute his appeal to effect, and perform the judgment, 
sentenee, or decree of the supreme court in case such decision is 
against hinu 

Approved in Rose v. Winn, 51 Tex. 550, failure of administrator's 
bond to state under what conditions it was to become void does not 
render such bond void. 

Where a Bond is Snlllclent^ in Penalty, under article 1493, but fol- 
lows the conditions of article 1491, the bond is bad. 

Approved in Gruner v. Westin, 66 Tex. 214, 18 S. W. 514, reaffirm- 
ing rule; Scranton v. Bell, 35 Tex. 414, appellant not entitled to have 
his own appeal dismissed on account of his own neglect. 

WlMie Bond ia Legal and Snlllcient in all other respects, but more 
onerons than law requires, the more onerous part will be rejected as 
sorplusage. 

Approved in Nelms v. Draub (Tex. Civ.), 22 S. W. 997, reaffirming 
nile; McLanry v. Watelsky, 39 Tex, Civ. 401, 87 S. W. 1049, liquor 
dealer's bond not invalidated by fact that it purported to bind his 
heirs and legal representatives; Landa v. Heermann, 85 Tex. 3, 19 S. 
W. 886, where appeal bond is in compliance with statute, but more 



29 Tex. 419-433 NOTES ON TEXAS EEPOBTS. 13« 

onerous than law requires, it is sufficient; Kerr t. Clegg, 1 Tex. Ap. 
Civ. 437, appeal bond more onerous than law requires is valid; Coman 
V. Lincoln, 25 Tex. Civ. 277, 61 S. W. 444, where bond conditioned on 
the payment of damages, such requirement may be treated as surplus- 
age. 

The Appellee is Entitled to a Bond which substantially complies 
with the statute and admits of no defenses. 

Approved in Putnam v. Putnam, 3 Ariz. 186, 24 Pac. 321, appeal 
bond void which does not describe judgment or state amount of pen- 
alty; Thompson v. Pine, 41 Tex. 171, bond intended for writ of error, 
but in terms of appeal bond, is insufficient; Smith v. Parks, 55 Tex. 
86, an appeal bond not made payable to the appellee is void; Whit- 
aker v. Sanders (Tex. Civ.), 52 S. W. 640, replevy bond not in full 
compliance with statute and less onerous than required is valid, where 
otherwise is substantial compliance with the statute. 

Distinguished in Bryant v. State (Tex. Cr.), 68 S. W. 1022, holding 
in criminal cases statutory requirements of bond should be strictly 
pursued; Live Oak Ranch Co. v. Ingham (Tex. Civ.), 44 S. W. 588, 
in suit for recovery of cattle, where judgment was for recovery of the 
cattle only, it was unnecessary to find separate value of the cattle. 

A Bedtal in the Bond that appellant is unable to give bond in 
double the amount of the judgment is sufficient showing of such fact. 

Approved in Ledbetter v. Burns, 42 Tex. 511, reaffirming rule; Bid- 
ley V. Henderson, 43 Tex. 137, failure to state in appeal bond that 
defendant was unable to give supersedeas bond did not render such 
bond void. 

Miscellaneous.— Futch v. Palmer, 11 Tex. Civ. 193, 32 S. W. 566, 
cited to point that bond payable to two parties, who had jointly re- 
covered judgment, is insufficient where one of them died subsequently, 
and his heirs had been made parties to the writ of error; miscited in 
Litton V. Thompson, 2 Posey U. C. 579. 

29 Tez. 419-428, TOOKE V. BONDS. 

Plea of Failure of Consideration not Averring failure of title or 
eviction of vendee was held insufficient. 

Approved in Odle v. Frost, 59 Tex. 687, 688, reaffirming rule. Cited 
in following notes: 50 Am. Dec. 288; 70 Am. Dec. 341. 

Where Creditor Agrees That Payment shall be applied to principal, 
which extinguishes such principal, leaving nothing but iiiterest due, 
the debt ceases to draw interest. 

Approved in Eastham v. Patty, 29 Tex. Civ. 475, 69 S. W. 226, re- 
affirming rule; Haralson v. Langford, 66 Tex. 114, 18 S. W. 340, plea 
should negative circumstances which might prevent married woman 
from setting up her coverture. 

29 Tez. 428-433, JONES ▼. 0AVAS08. ' 

In Absence of a Statement of Facts in a case of trespass to try 
title, the court will not consider whether or not there was error in 
exclusion of papers which did not in themselves constitute muniments 
of title. 

Approved in Harris v. Spence, 70 Tex. 620, 8 S. W. 315, Atchison 
etc. By.'y. Lochlin, 87 Tex. 470, 29 S. W. 469, and Goodale v. Doug- 
las, 5 Tex. Civ. 697, 24 S. W. 967, all reaffirming rule; Lockett v. 
Schurenberg, 60 Tex. 615, statement of facts made up and filed after 
the term without order so to do, will not be considered; Hereford 



139 NOTES ON TEXAS BEPOBTS. 29 Tex. 433-455 

Ckttle Co. ▼. Powell, 13 Tex. Civ. 503, 36 8. W. 1037, ruling of trial 
fonrt on admission and exclusion of testimony will not be revised in 
absence of statement of facts; Darragb v. Kaufman, 2 Posey IT. C. 
98, in absence of statement of facts, every presumption will be in- 
dulged in in favor of verdict. 

In Absence of Bill of Exceptloiui tbe court will not inquire into cor- 
rectness of ruling in excluding testimony. 

Approved in Magel v. Hitchcock, 2 Posey IT. C. 587, reaffirming rule. 

29 Tex. 433-450, MABINE FIRE INS. 00. ▼. BUBNETT. 

Wlmre Jozy is Unable to Baconcile Testimony, they should give 
credit to those witnesses as seem best entitled to it. 

Approved in G. C. & S. F. By. v. Holt, 1 Tex. Ap. Civ. 480, reaffirm- 
ing rule. 

29 Tex. 450-455, HOESEB T. KBAEKA. 

As Against Grantor and Those Claiming Under Him with notice of 
the fraud, fraudulent conveyance is valid. 

Approved in Hunter v. Magee, 31 Tex. Civ. 306, 72 S. W. 231, and 
Parrell v. Duify, 5 Tex. Civ. 439, 27 S. W. 21, both reaffirming rule; 
Wilson V. Demander, 71 Tex. 606, 9 S. W. 679, administrator cannot 
maintain an action to set aside conveyance made by deceased to de- 
fraud his creditors; Holliday v. McKinne, 22 Fla. 168, retention of 
personal property by vendor after sale is prima facie evidence of 
fraud; Olcott v. International etc. B. B. (Tex. Civ.), 28 S. W. 734, 
rourt will not grant relief where one railroad designedly enters into 
sa illegal and void lease with another railroad. Cited in following 
notes: 30 Am. Bep. Ill; 3«Am. St. Bep. 728; 3 Am. St. Bep. 729; 3 
Am. St. Bep. 730. 

Grantor will not be Heard to Prove against recitations of his deed 
as to execution, consideration, and delivery thereof when same was 
made to defraud creditors. 

Approved in Clemens v. Clemens, 28 Wis. 648, 649, 9 Am. Bep. 526, 
527, reaffirming rule; William J. Lemp Brewing Co. v. La Bose, 20 
Tex. Civ. 579, 50 S. W. 462, legal representatives of deceased cannot 
attack title made by deceased by showing such title was made to de- 
fraud creditor; l^Vank v. Frank (Tex. Civ.), 25 S. W. 819, deed from 
husband to wife without consideration, and with fraudulent intent 
known to both, vests title in wife as against the husband. 

Distinguished in Medearis v. Cranberry, 38 Tex. Civ. 191, 84 S. W. 
1072, grantor in possession may urge that his conveyance was made 
ea illegal conaideration. 

Administrator of Deceased's Estate cannot Maintain Action to set 
aside deed made by deceased to defraud his creditors. 

Approved in Livingston v. Ives, 35 Minn. 60, 27 N. W. 76, deed ab- 
solute in form, but intended as a mortgage, and also to defraud cred- 
itors, may be treated as a mortgage by grantor; William J. Lemp 
Brew. Co. v. La Bose, 20 Tex. Civ. 579, 50 S. W. 462, reaffirming rule; 
Biering t. Flett (Tex. Sup.), 7 S. W. 232, executed contracts of sale 
to defraud creditors are binding between grantor and grantee. 

WiMr* Butt was for Becovery of Specific Property and verdict was 
for recovery, but did not find value of each article, such verdict was 
reversed for that reason. 

A{^roved in Cook v. Halsell, 65 Tex. 7, reaffirming rule; Cole v. 
Crawford, 69 Tax. 127, 5 S. W. 647, where suit is against officer and 



29 Tex. 464-492 NOTES ON TEXAS BEPORTS 140 

his snreties for value of exempt personal property sold, a finding of 
the gross value is sufficient; Morris v. Coburn, 71 Tex. 407, 9 S. W. 
345, in suit for specific property recovery should be for the property 
and in the alternative for its value; Lang v. Dougherty, 74 Tex. 234, 
12 S. W. 34, in suit for specific property judgment should be for re- 
covery of the property or its value; dissenting opinion in Byrne v. 
Lynn, 18 Tex. Civ. 263, 264, 44 S. W. 544, majority holding not neces- 
sary for value of each article to be found separately; Herder v. 
Schwab Clothing Co. (Tex. Civ.), 37 S. W. 784, in replevin judgment 
on the replevin bond must show value of each article replevied; Bow- 
man V. Weber (Tex. Civ.), 41 S. W. 493, 494, in suit to rescind horse 
trade and recover several horses traded, the verdict should find the 
value of each horse to be recovered; Avery v. Dickson (Tex. Civ.), 49 
S. W. 665, under Sayles' Civ. St., articles 4502, 4506, judgment for 
wrongful sequestration should find value of each article separately. 
Cited in note, 3 Am. St. Rep. 738. 

Distinguished in Lynch v. Burns (Tex. Civ.), 79 S. W. 1085, where 
defendant did not reconvene for damages on account of sequestration; 
Byrne v.. Lynn, 18 Tex. Civ. 255, 256, 259, 263, 44 S. W. 312, 313, 315, 
317, allowing recovery where allegations and proof of specific articles 
was of their aggregate value only; Whetmore v. Rupe, 65 Cal. 237, 
238, 3 Pac. 852, holding not necessary to find value of each article 
separately. 

29 Tex. 464-483, DE WABBEN ▼. STATE. 

Admission by State's Attorney that witnesses would testify to what 
defendant set out in application for continuance, without admitting 
its truthfulness, does not justify court in overruling such application. 

Approved in Newton v. State, 21 Fla. 70, and State v. Jennings, 81 
Mo. 201, both reaffirming rule. See notes, 67 Am. Dec. 640; 16 L. R. 
A. 240. 

Cited in dissenting opinion. Territory v. Harding, 6 Mont. 339, 12 
Pac. 758, majority holding defendant not entitled to continuance 
where prosecution admits witness would swear to material facts set 
out in application for continuance. 

29 Tex. 490-491, CAMPBELL v. STATE. 

Motion for New Trial Based on Newly discovered evidence should 
be supported by affidavit of party making it and by affidavits of wit- 
nesses. 

Approved in Koontz v. State, 41 Tex. 572, reaffirming rule; John- 
son V. State, 2 Tex. Ap. 457, newly discovered evidence which is cumu- 
lative, and not probably sufficient to change result of case, not suffi- 
cient to warrant granting new trial; Carrasco v. State, 34 Tex. Cr. 566, 
31 S. W. 397, motion for new trial on ground of newly discovered 
evidence must be supported by affidavit. 

29 Tex. 492, JOHNSON ▼. STATE. 

Where Statement of Facts is not approved by the judge who pre- 
sided at the trial, it cannot be considered by the court on appeal. 

Approved in Johnson v. Blount, 48 Tex. 41, reaffirming rule; 
Graham v. State, 43 Tex. 551, statement of facts agreed to by 
attorneys, but not approved by the trial judge, cannot be considered. 

In an Indictment for Horse Stealing it was held not necessary 
to aver the horse stolen was of value. 



HI NOTES ON TEXAS EEPOETS. 29 Tex. 492-497 

Approved in Davis v. State, 40 Tex. 135, reaffirming rule; Watts 
V. State, 6 Tex. Ap. 264, when value of stolen property affects 
the penalty for the offense such value must be alleged and proved; 
Frazier v. Turner, 76 Wis. 566, 45 N. W. 412, warrant for arrest 
for larceny must state value of property stolen. 

29 Tex. 492-495, BEU. y. STATE. 

Acts of Preparation by Defendant to repel apparent violence, if 
no more, do not constitute assault. 

Approved in Chamberlain v. State, 2 Tex. Ap. 453, reaffirming 
rale; Johnson v. State, 19 Tex. Ap. 547, holding defendant bad a 
right to protect his property by assault; White v. State, 29 Tex. 
Ap. 531, 16 S. W. 340, in every assault there must be an intent to 
injure. 

When Acts or Gestares are Done with intention of doing injury, 
and not to repel anticipated violence, they constitute assault. 

Approved in Mooring v. State, 42 Tex. 87, Burton v. State, 3 
Tex. Ap. 411, 30 Am. Rep. 148, Cato v. State, 4 Tex. Ap. 89, and 
Young V. State, 7 Tex. Ap. 78, all reaffirming rule; McFain v. 
8tat«, 41 Tex. 389, threat to kill not excused by condition that party 
threatened desist from doing an act he had a right to do. 

29 Tex. 495-497, ALEZANDEB y. STATE. 

Wlier« Accnaed was Charged With a Violation of the liquor laws, 
and the particular acts not set forth in the indictment with certainty, 
it was held insufficient to support conviction. 

Approved in Martin v. State, 1 Tex. Ap. 589, Hoskey v. State, 
9 Tex. Ap. 203, Huntsman v. State, 12 Tex. Ap. 636, and United 
States V. Kelsey, 42 Fed. 890, all reaffirming rule; Lamkin v. State, 
42 Tex. 417, indictment for theft from house should allege name 
of owner or occupant; White v. State, 3 Tex. Ap. 608, when written 
inttnunent enters into an offense, it should generally be set forth 
in the indictment; Lagrone v. State, 12 Tex. Ap. 427, indictment 
for slander should set forth slanderous words; Thompson v. State, 
16 Tex. Ap. 160, indictment for disturbing public worship must 
describe offense with some degree of particularity. 

The Indictment mnst Charge Orlme With Snch Oertalnty as to 
enable defendant to plead judgment on same in bar of another 
prosecution for same offense. 

Approved in Williams v. State, 1 Tex. Ap. 91, 28 Am. Bep. 400, 
reaffirming rule. 

Indictment for Selling Liqnor Without License must state where 
name was sold, or to whom sold, or some other fact identifying the 
transaction. 

Approved in Mosely v. State, 18 Tex. Ap. 313, indictment for 
selling merchandise on Sunday should specify sale with reasonable 
certainty; Dixon v. State, 21 Tex. Ap. 518, 519, 1 S. W. 449, 450, 
indictment for violation of local option law must allege name of 
person to whom the liquor was sold. See note, 23 L. B. A. (n. s.) 
583. 

Distinguished in Mansfield v. State, 17 Tex. Ap. 470, holding that 
under new law an indictment for selling intoxicating liquors with- 
out license need not allege name of person sold to. 



29 Tex. 499-521 NOTES ON TEXAS EEPOBTS. 142 

29 Tex. 499-601, BOSS y. STATE. 

Where Cliarge, as a Whole, Leaves All the Facts to consideration 
of jury, judgment will not be reversed, although the charge may 
not be entirely free from objections. 

Approved in Brown y. State, 38 Tex. 486, in criminal case court 
will examine general charge to determine whether accused has been 
fairly tried. 

Oharge Should Set Forth Law Applicable to Oase, without express- 
ing or intimating any opinion as to the weight of the evidence, or 
credibility of statements made by accused or witnesses. 

Approved in Merritt v. State, 2 Tex. Ap. 183, Butler v. State, 3 
Tex. Ap. 50, Bice v. State, 3 Tex. Ap. 455, Stuckey v. State, 7 Tex. 
Ap. 178, and Benfro v. State, 9 Tex. Ap. 231, all reaffirming rule; 
Wood V. State, 81 Fla. 231, 12 So. 541, court should omit and refuse 
to instruct as to law not applicable to the case; State v. Barry, 
11 N. D. 449, 450, 92 N. W. 817, 818, holding charge in murder 
prosecution where defense was insanity, was on weight of evidence. 
See note, 72 Am. Dec. 543. 

The Jury are the Ezclnsive Judges of the facts. 

Approved in Bishop v. State, 43 Tex. 397, McCoy ▼. State, 44 
Tex. 620, Stephens v. State, 10 Tex. Ap. 124, and State v. Addy, 
28 S. 0. 16, 4 S. E. 818, all reaffirming rule; Ethington v. State, 
35 Tex. 128, applying rule in refusing to award new trial; Searcy 
V. State, 1 Tex. Ap. 443, court should not, in his charge, assume a 
material fact as proven. 



29 Tex. 601-503, STATE T. SOHOOLFIELD. 

A (General Demurrer or Exception to Indictment which does not 
notify the court whether the defect be one of form or one of sub- 
stance should not be sustained. 

Approved in Phillips v. State, 29 Tex. 234, reaffirming rule; West 
V. State, 6 Tex. Ap. 494, a mere formal objection is not reached by 
motion to arrest judgment. 

29 Tex. 60&-521, TABOB v. OOMMISSIONEB OF GENERAL LAND 
OFFICE. 

Act of February 11, 1858, is Applicable only to "alternate sections 
of land surveyed and reserved to the state," and has no application 
to the islands. 

Approved in Galveston etc. By. v. Gross, 47 Tex. 432, reaffirming 
rule. 

Mandamus wHl not be Granted Against a Public Officer to compel 
him to perform an official act unless it be clearly defined by law. 

Approved in Houston etc. B. B. v. Kuechler, 36 Tex. 414, reaffirm- 
ing rule; Gibbs v. Ashford, 27 Tex. Civ. 632, 66 S. W. 859, in man- 
damus to compel city to open street, persons occupying street under 
contract with city necessary parties. 

Where There Api»ear to be Other Claimants to Land, it furnishes 
reasons for refusal of land commissioner to grant certificate, until 
such claims are settled in court. 

Approved in Texas etc. By. v. Locke, 63 Tex. 627, reaffirming rule; 
dissenting opinion in Keuchler v. Wright, 40 Tex. 624, majority 
holding mandamus will lie to compel commissioner of general land 
office to perform ministerial duties. 



143 NOTES ON TEXAS EEPOETS. 29 Tex. 508-521 

Distingiiisbed in City of Austin ▼. Cabill, 99 Tex. 189, 88 S. W. 
548, refunding bondholders not necessary parties to mandamus pro- 
ceeding brought by unrefunding bondholder to compel application 
of fund to pay interest on his bonds. 

DlBpntas Between ClaSmants mwrt be Settled In Court in county 
where land is situated, before commissioner can grant certificate. 

Approved in Thomson v. Locke, 66 Tex. 391, 1 S. W. 116, and 
State ▼. Tmateea of Internal etc. Fund, 20 Fla. 404, both reaffirm- 
ing role. 



NOTES 

ONTHJS 



TEXAS EEPORTS 



CASES IN 30 TEXAS. 



so T«z. 4-7, 94 Am. Dec 296, HABBI8 y. ELLI& 

Shezjff is Agent of Plaintiff to receive payment of judgment as 
long as execution is in his hand and return day has not arrived. 

Cited in 100 Am. Dec. 227, note. 

After Setozn Day of Any Execution which has not been levied, the 
power of the sheriff to collect under it ceases. 

Reaffirmed in Marx v. Carlisle, 1 Tex. Ap. Civ. 39. See note, 15 
Am. Dec. 522. 

An Injunction Canae Tried by the Court and injunction perpetuated, 
if reversed upon appeal, the bill will be dismissed. 

Approved in Tillman v. McDonough, 2 Tex. Ap. Civ. 46, when 
aa action cannot be sustained at law, it will not be remanded, but 
will be dismissed by appellate court. 

SO Tex. 7-13, MILLS v. TAYLOR. 

SabeeiiaeDt Bncnmbrancers not Parties to the foreclosure are not 
bound by decree. 

Approved in McDonald v. Miller, 90 Tex. 312, 39 S. W. 95, following 
nile; Glaze v. Watson, 55 Tex. 568, and Preston v. Breedlove, 45 
Tax. 51, party in possession claiming under complete and recorded 
eoaveytnce ia not precluded by a decree in foreclosure against remote 
vendor when he is not made a party; Byler v. Johnson, 45 Tex. 518, 
as against party claiming through complete and recorded conveyances, 
an execution sale in foreclosure of remote vendor conveys no title 
if he was not made a party; Davis v. Diamond, 1 Tex. Ap. Civ. 
312, and Robertson v. Coates, 65 Tex. 41, holder of equity of redemp- 
tion mnst be made a party to bind him; Bradford v. Knowles, 86 
Tex. 508, 25 S. W. 1118, grantee of mortgagor is a necessary party 
to a foreelosure suit; Blankenship v. Wartelsky (Tex. Sup.), 6 S. W. 
144, applying rule in construing rights if from creditors in attach- 
ment suit. 

If Mortgagee in Action of Trespass to Try Title may recover lands 
mortgaged before foreclosure, it must be on such facts as would 
entitle him to decree of foreclosure of equity of redemption and a 
refusal of purchaser to discharge debt after notice. 
Cited in 62 Am. Dec. 539, note. 

2 Tex. Notes— 10 (145) 



30 Tex. 17-30 NOTES ON TEXAS REPORTS. 146 

When Tmst Deed Becites that Beneflciary paid debts as grantor's 
surety, the amounts not being given, in absence of presentation of 
debts to grantor and proof of indebtedness, there is no authority to 
sell nnder the deed. 

Approved in Fuller v. O'Neil, 69 Tex. 352, 5 Am. St. Rep. 61, 6 8. 
W. 182, trustee holds equitable and legal title subject to the lien 
to pay the debts. See notes, 19 Am. St. Rep. 274; 19 Am. St. Rep. 
296. 

30 Tex. 17-23, TALE T. WASD. 

Collated Detached Parcels of Becitals in a deed will not be con- 
strued in connection for a purpose nev«r intended by pleader in order 
to supply distinct averment which has been omitted in proper place. 

Reaffirmed in Edgar v. Galveston City Co., 46 Tex. 428, and Texas 
etc. Ry. V. Bayliss, 62 Tex. 573. 

By Act of 1848 drawer of accepted bill is not liable unless suit 
be brought against acceptor at first term after dishonor, or at second 
term if good cause for delay. 

Approved in Caldwell v. Byrne (Tex. Civ.), 30 S. W. 836, applying 
rule to suit against indorser of note; Mullaly v. Ivory (Tex. Civ.), 30 
S. W. 259, holding suit against indorser two terms after dishonor 
bad, where no excuse shown. 

30 Tex. 24-26, BEAVEBS T. BUTLEB. 

The One Hundred and Fortieth Section of Act to regulate pro- 
ceedings in district court provided for issuance of writ of error to 
county of defendant's residence and its service upon the party, 
but if party is a nonresident or cannot be found, it may be served 
on attorney of record. 

Approved in Hohenthal ▼. Turnure, 50 Tex. 3, jurisdiction for 
purpose of adjudication does not attach until service of citation 
in error, while the case is pending; Wilson v. Adams, 50 Tex. 13, 
when plaintiff in error is negligent in service of citation, defendant 
in error may acknowledge service and bring cause up. 

When Writ of Error not Served, case stricken from docket at cost 
of party filing transcript. 

Approved in Vineyard v. McCombs, 100 Tex. 319, 99 S. W. 545, 
following rule. 

30 Tex. 26-28, DANIEL v. HENBT. 

Miscited in Covitt v. Anderson, 34 Tex. 263, service on attorney 
is not good unless defendant is shown to be nonresident. 

30 Tex. 28-30, FUBLOW y. MTTJiFiB. 

Amendments Which Introdnce New Ayermenta constituting addi- 
tional cause of action, e. g., a prayer for foreclosure of vendor's 
lien, can be made, but if there is no appearance of defendant he 
must be served with notice of amendments. 

Approved in Texas etc. R. R. v. White, 55 Tex. 252, and Pendle- 
ton V. Colville, 49 Tex. 526, both holding judgment cannot be en- 
tered in absence of notice; Stewart v. Anderson, 70 Tex. 599, 8 S. 
W. 300, it must appear that party to be affected by the amendment 
was in court in person, by attorney, or had notice; Roller v. Ried, 
87 Tex. 71, 25 S. W. 625, where new party is brought in and a 
liability created, defendant must have notice if he has not appeared. 
See note, 51 Am. St. Rep. 434. 



147 NOTES ON TEXAS REPOBTS. 30 Tex. 30-52 

A Snfgwtioii 9t Delay Opeiui the case to all errors of record. 
Beaffirmed in Miseouri Pac. By. v. Patterson, 2 Tex. Ap. Civ. 714. 

SO Vbx. 30-^1, BHONE y. EUJS. 

Tlia Foity-aeventh Section of Act to regulate proceedings in district 
court permita of only one final judgment in an action. 

Approved in Stephenson v. Tennant, 1 Tex. Ap. Civ. 273, and 
Wills T. State, 4 Tex. Ap. 616, judgment is not final unless there is 
tn tdjndication as to all parties; White v. Smith, 4 Tex. Ap. Civ. 
377, 15 S. W. 1112, final judgment must dispose of property in 
eontroversy. 

30 T^ 31-37, FBIZZEIJi T. JOHNSON. 

Particiilar Objectiona must be Specified in bill of exceptions or 
Msigmnent of error. 

Approved in Watson v. Mathews, 36 Tex. 279, the written instru- 
ment objected to must be set out; M. P. By. v. Boundtree, 2 Tex. 
Ap. Civ. 339, bill of exception must show grounds of objection. . 

A Deputy Olezk baa Authority to take acknowledgments and 
register deeds. 

Approved in Wert v. Schneider, 64 Tex. 330, Ansaldua v. Sewing, 
81 Tex. 201, 16 S. W. 990, and Hemdon v. Beed, 82 Tex. 651, 18 S. 
W. 666, all reaffirming rule. See notes, 60 Am. Dec. 176; 80 Am. Dec. 
649; 106 Am. St. Bep. 826. 

Deed Begistered in Proper County need not be registered anew 
if land is subsequently transferred to another county. 

Beaffirmed in Lumpkin v. Muncey, 66 Tex. 312, 17 S. W. 733. 

Party MoTlng for New Trial on grounds of newly discovered evi- 
dence, relying on affidavits, must show by bill of exceptions that these 
tffidavits were brought to court's consideration. 

Approved in State v. Zanco, 18 Tex. Civ. 129, 44 S. W. 529, the 
record must show diligence. 

AflldsYit for New Trial on grounds of newly discovered evidence 
nnift show due diligence that it became known since trial, and is 
not cumulative, and would probably change result. 

Approved in H. & T. etc. By. v. Devainy, 63 Tex. 175, Harmon v. 
State, 3 Tex. Ap. 55, and McCartney v. Martin, 1 Posey U. C. 150, 
all reaffirmiDg rule; City of 3E21 Paso v. Ft. Dearborn Nat. Bank (Tex. 
Civ.), 71 S. W. 803, upholding denial of new trial in trespass to try 
title on ground of newly discovered evidence where doubtful whether 
different result would be reached. 

30 Tex. 37-61, wnJ.TAMfl v. ABNIS. 

Party Moving for New Trial on grounds of newly discovered 
evidence must show that due diligence was used to discover the 
evidenee. 

Approved in Blackburn v. Knight, 81 Tex. 332, 16 S. W. 1078, ap- 
plying principle on failure of party to disclose evidence to attorney; 
San Antonio Gas Co. v. Singleton, 24 Tex. Civ. 344, 59 S. W. 922, 
newly discovered evidence which is immaterial no ground for new 
tnaL 

30 Tte. 51-«2; WIUJAMB v. D0WNE8. 

Defendant must be Served Five full days before return, and date 
of service moat appear on return to support default judgment. 



3V) Tex. 53-75 NOTES ON TEXAS BEPOETS. 148 

Approved in Sloan ▼. Batte, 46 Tex. 216, return must show dat« 
of execution; Moore v. Bice, 51 Tex. 295, on service by publication, 
date of publication must show on return; Wood v. Galveston, 76 
Tex. 130, 13 S. W. 228, Sunday counts one day in computing number 
of days between service and return day. 

SO Tez. 53-64, CHESTEB v. WALTERS. 

Becital of Appearance In Judgment is conclusive on parties. 

Approved in Smith v. Wood, 37 Tex. 620, recital of appearance in 
judgment is binding on parties. 

80 Tex. 66-59, ECTOB v. WIGGINS. 

When a Party Whose Son has Been Killed retains an attorney to 
prosecute, he is liable for the value of services rendered. 

Approved in Henderson v. Terry, 62 Tex. 284, party by acts induc- 
ing attorney to believe that his services are wanted is liable for 
reasonable compensation. 

SO Tex. 59-60, STATE y. ALLEN. 

An Indictment dearly Charging Facts of beating and bruising, 
which constitute an assault and battery, need not state "the intent 
to injure." 

Approved in McFarlin v. State, 41 Tex. 25, State v. Case, 41 Tex. 
554, Bronson v. State, 2 Tex. Ap. 46, and Forrest v. State, 3 Tex. 
Ap. 233, all reaffirming rule; State v. Hays, 41 Tex. 526, act im- 
porting illegality on face need not so aver; Milstead v. State, 19 
Tez. Ap. 491, and State v. Hartman, 41 Tex. 563, need not allege 
offense unlawful nor intent to injure. 

JO Tex. 60-65, 8ELVIDGE y. STATE. 

Facts and OlrcuniBtances in a confession found to be true by other 
testimony may be considered by jury under six hundred and sixty- 
second article of Code of Criminal Procedure. 

Approved in Harris v. State, 1 Tex. Ap. 79, Davis v. State, 8 Tex. 
Ap. 514, and Weller v. State, 16 Tex. Ap. 212, all reaffirming rule; 
Sprait V. State, 43 Tex. 488, no conviction can be had on confession 
by duress unless supported by other testimony; Walker v. State, 9 
Tex. A p. 40, confession obtained without first warning prisoner cannot 
be used; Kennon v. State, 11 Tex. Ap. 362, statements must be proven 
by evidence of others; State v. Fuller, 34 Mont. 21, 85 Pac. 372, 8 
li. B. A. (n. s.) 762, upholding admission, in prosecution for murder, 
evidence that shoes taken from defendant without his consent cor- 
responded with tracks found near scene of killing; State v. Graham, 
74 N. C. 648, 21 Am. Rep. 494, and Allison v. State, 14 Tex. Ap. 127, 
admissions can be used when property found; Weller v. State, 16 Tex. 
Ap. 213, extraneous statement being found true, confession may be 
used; Brown v. State, 26 Tex. Ap. 314, 9 S. W. 614, corroborations 
render confession admissible. See notes, 53 L. B. A. 403; 9 L. B. A. 
323. 

Under Article 216 of Penal Code, parties assisting and acting with 
others are principals, although not present at commission of acts. 

Approved in Irvin v. State, 1 Tex. Ap. 302, taking and carrying 
away property is act of all knowing unlawful intent. 

30 Tex. 66-75. WALTERS ▼. PBESTIDGE. 

Under Sections 49 and 50 of Act to rej^ulate proceedings relating 
to estates of deceased peibons, afiidavit of authentication must state 



149 NOTES ON TEXAS BEPOBTS. 30 Tex. 76-86 

claim 18 just, and "all legal offsets, payments, and credits known to 
affiant have been allowed/' or equivalent words. 

Approved in GiUmore ▼. Dunson, 35 Tex. 438, and Harper v. Stroud, 
41 Tex. 372, reaffirming mle; Hughes v. Potts, 39 Tex. Civ. 183, 87 
S. W. 709, affidavit of claim presented to assignee for creditors re- 
citing that statement of claim is correct, instead of that it is "just 
and true/' is insufficient; Heath v. Garrett, 46 Tex. 25, affidavit made 
bj agent not invalid, because it does not note agency; Cannon v. 
HcDaniel, 46 Tex. 309, affidavit made by one not a party cannot 
avail except by direct proceeding; Smyth v. Caswell, 65 Tex. 382, not 
accessary to present claim to independent executor; Etter v. Dugan, 
1 Posey IT. C. 181, jurat must be made before a proper officer. See 
note, 70 Am. Dec. 327. 

If AilldaTit of AnUieiitlcatlon of claim be wanting in any essential, 
administrator has no power to allow it, and his allowance would be 
void. 

A|^uroved in Lanier v. Taylor (Tex. Civ,), 41 S. W. 517, holding 
andgned affidavit fatally defective. 

SO Tix. 7&-77, OOLBEBTSON y. BEESON. 

Plaintiff most State Oaiue of Action in petition and aver liability 
of defendant. 

Approved in Dibrell v. Ireland, 1 Tex. Ap. Civ. 123, petition must 
allege a right to sell. See note, 76 Am. Dec. 101. 

3D Tax. 77-79, BBOWN y. MABQUEZE. 

Defendant must be Served by his proper name to support judgment 
by default. 

Approved in Booth v. Holmes, 2 Posey XT. C. 233, reaffirming rule. 
See note, 100 Am. St. Bep. 332. 

'^ow" and "Brown** are not idem sonans^ 

See note, 100 Am. St. Bep. 351. 

ao Tex. 79-86, GIBBS y. BELOHEB. 

Cause of Action Arising from personal injury dies with the party 
at common law, and with it the remedy. 

Approved in Texas etc. By. v. Bichards, 68 Tex. 378, 4 S. W. 629, 
a right of action abated under common law will not prevail in Texas; 
Karch v. State, 5 Tex. Ap. 452, death of appellant in criminal case 
abates the proceedings; Mexican etc. By. v. Goodman, 20 Tex. Civ. 
110, 48 S. W. 778, action for personal injuries does not survive. 

Defendant is not Entitled to Dlamiflsal of writ of error in judgment 
for assault and battery, upon death of the judgment plaintiff. 

Approved in Galveston etc. By. v. Nolan, 53 Tex. 146, Pullman etc. 
Car Co. V. Fowler, 6 Tex. Civ. 759, 27 S. W. 270, and Brooke v. Clark, 
57 Tex. 109, original cause of action is merged on rendition of judg- 
ment; dissenting opinion in Horton v. State, 30 Tex. 205, majority re- 
affirming rule. See note, 53 Am. Bep. 534, 536. 

Writ of Error Bemoves Canse to supreme court, but does not vacate 
or open judgment, nor operate as a stay of execution on the judgment. 

Approved in Flanagan v. Pearson, 42 Tex. 7, 19 Am. Bep. 44, ap- 
peals to supreme court are to test correctness and validity of judg- 
ment; Harle v. Langdon, 60 Tex. 564, writ of error does not con- 
■titnte a new suit. 

Writ of Brror is New Action brought in a superior court founded 
oa judgment of an inferior court. 



30 Tex. 86-115 NOTES ON TEXAS REPORTS. 150 

Approved in Wiugfield v. Neall, 60 W. Va. 115, 116 Am. St. Rep. 
882, 54 S. E. 50, one who, after final decree and before appeal, pur- 
chases in good faith, property in litigation, is protected in such pur- 
chase. 

30 Tex. 86-93, BAKER v. PANOLA COUNTT. 

Under Act of 1846, ConntieB established, or to be established, are 
bodies corporate and politic. 

Reaffirmed in Milam Co. ▼. Bateman, 54 Tex. 163. 

Coimty Courts Under Act of 1848 have power to levy and collect 
taxes for county purposes upon all subjects of taxation in county. 

Approved in Ex parte Cooper, 3 Tex. Ap. 496, 30 Am. Rep. 157, 
dog tax is within police power, and it is not objectionable that it is 
on the tax list. 

Taxes, Illegally Levied or Unauthorized^ paid under protest may be 
recovered by suit. 

Approved in Galveston v. Sydnor, 39 Tex. 241, Texas Land etc. Co. 
V. Hemphill County (Tex. Civ.), 61 S. W. 334, reaffirming rule; Galves- 
ton Gas Co. V. Galveston Co., 54 Tex. 292, taxes paid to prevent cloud 
on title are compulsory and recoverable. See note, 4 L. R. A. 301. 

Distinguished in Galveston v. Gorham, 49 Tex. 308, money paid 
voluntarily. 

30 Tex. 100-103, LEIGH y. LINTHECUM. 

Where New Promise is Conditional on Happening of certain event, 
compliance therewith must be averred and proved before plaintiff 
can recover. 

Approved in Wright v. Farmers' Nat. Bank, 31 Tex. Civ. 407, 72 
S. W. 104, recovery cannot be had on defendant's promise to pay 
"as soon as he could" without proof of ability to pay after promise 
made; Lange v. Caruthers, 70 Tex. 722, 8 S. W. 606, a promise to 
pay upon condition subsequent must be averred and proven; Krueger 
V. Krueger, 76 Tex. 180, 12 S. W. 1005, plaintiff must prove condition 
has taken place; Reynolds Iron Works v. Mitchell (Tex. Civ.), 27 
S. W. 512, holding admission by firm insufficient. See note, 5 L. R. 
A. 743. 

Miscellaneous.— Martin v. Anderson, 4 Tex. Civ. 116, 23 S. W. 292, 
arguendo. 

30 Tex. 104-115, HATCHETT ▼. CONNER. 

Party Relying on Testimonio or second original must prove its 
execution. 

Approved in Wood v. Welder, 42 Tex. 408, and Hutchins v. Bacon, 
46 Tex. 415, reaffirming rule; Howell v. Hanricik, 88 Tex. 394,. 29 
S. W. 766, certified copy of grant admissible because it is a copy 
of an archive; McCarty v. Johnson, 20 Tex. Civ. 188, 40 S. W. 
1100, protocol proves itself, and not the testimonio; Lerma v. Steven- 
son, 40 Fed. 358, registration of testimonio in land office does not 
constitute it an archive. 

Husband and Wife Joining in Ekdt to recover her separate prop- 
erty, they cannot recover it if it is proven to be husband's property. 

Approved in Milliken v. Smoot, 64 Tex. 173, party must recover 
on facts in pleading, and not on facts adverse thereto. 

Hnsband Knowing and Acquiescing in Conyeyance to wife thereby 
vests title in her as though he had assented by deed. 



151 NOTES ON TEXAS BEPOETS. 30 Tex. 115-145 

A[^roved in Hackworth v. English, 53 Tex. 495, reaffirming rule; 
Holloway ▼. Holloway, 30 Tex. 180, allegation in petition cannot 
change eharaeter of property from separate to community; Peters 
▼. Clements, 49 Tex. 124, property is wife's separate estate if hns- 
iMind permits deed to be made in her name; Hutchins v. Bacon, 46 
Tex. 414, woman suing aa feme sole need not aver separate property. 
See notes, 76 Am. Dec. 108; 86 Am. Dec. 640. 

Void Title cannot be Made a Basis for claim for value of improve- 
ments made in good faith. 

Approved in House v. Stone, 64 Tex. 683, Settegast v. O'Donnell, 
1« Tex. Civ. 67, 41 S. W. 85, and Cooke v. Avery, 147 U. S. 395, 13 
Sap. Ct. Bep. 348, 37 L. 209, all reaffirming rule; Miller v. Brownson, 
50 Tex. 597, title will not be presumed from possession; Houston v. 
Blvthe, 60 Tex. 514, testimonio being issued several days after grant 
does not destroy title; Elam v. Parkhill, 60 Tex. 582, party must enter 
asd claim under color of title to recover improvements; House v. 
Stone, 64 Tex. 686, good faith will not support claim for improve- 
ments; Armstrong v. Oppenheimer, 84 Tex. 368, 19 S. W. 521, posses- 
sion will not raise presumption of title; Benson v. Cahill (Tex. 
Ciy.), 37 S. W. 1091, on point that separate defendants claiming im- 
provements shall separately state their claims. 

Party Seeking New Trial on newly discovered evidence must show 
due diligence, that evidence is not cumulative, discovery since trial, 
tad that it would probably change result. 

Approved in H. & T. etc. By. v. Devainy, 63 Tex. 175, and San 
Astonio Gas Co. v. Singleton, 24 Tex. Civ. 343, $9 S. W. 922, reaf- 
firming rule; Gulf. etc. By. Co. v. Blanchard, 96 Tex. 617, 75 S. W. 
7, holding affidavit as to efforts made to discover material testimony 
did not show exercise of due diligence; Fitzgerald v. Compton, 28 
Tex. Civ. 205, 67 S. W. 132, applying rule to motion to set aside 
default on foreclosure of vendor's lien because of discovery of defect 
ia title; Gulf etc. By. v. Brown, 16 Tex. Civ. 113, 40 S. W. 619, 
emnnlative evidence that would mitigate damages not cause for new 
trial; Luke v. El Paso (Tex. Civ.), 60 S. W. 365, new trial denied 
if newly discovered evidence is for impeachment* 

90 Tez. 115-188, TIMMIN8 y. IiAOY. 

When an Appeal Does not Lie from a county court, its actions may 
be brought into question by certiorari. 

Approved in Ex parte Cosner, 4 Tex. Ap. 91, no appeal from deci- 
sion on pension claims. See note, 55 Am. Dec. 807. 

There can be Ko Lawful Wedlock Between Parties who are under 
disability and cannot exercise freedom of consent necessary to give 
consent. 

Approved in Cumby v. Henderson, 6 Tex. Civ. 521, 25 S. W. 674, 
lad Daniel v. Sams, 17 Fla. 492, reaffirming rule; Wood v. Cole, 25 
Tez. Civ. 379, 60 S. W. 993, negro husband not entitled to deceased 
wife's property. 

Father of Bastard has no parental power over chUd. 

See note, 65 L. B. A. 690. 

90 Tex. 138-146, STONE y. SMITH. 

Indoner on Bill of Ezcbange, with knowledge that his liability 
is discharged by failure to present same^ may waive such release of 
liability by a promise of payment. 



30 Tex. 145-163 NOTES ON TEXAS REPORTS. 152 

Approved in First Nat. Bank v. Bonner (Tex. Civ.), 27 S. W. 699, 
promise to pay with knowledge that demand and notice not given 
is waiver thereof. See note, 29 L. R. A. 308. 

30 Tex. 145-150, STANSBTJBT v. NICHOLS. 

Separate Eatata of Wife ean only be liable under the statute or 
by her express authority. 

Approved in Harris v. Williams, 44 Tex. 126, and Blevins ▼. 
Cameron, 2 Posey U. C. 463, reaffirming rule; Hawkes v. Robertson 
(Tex. Civ.), 40 S. W. 549, and Beattie v. Keller (Tex. Civ.), 49 S. W. 
409, on point that wife's note for necessaries is binding. 

Decree Onres All Defects and Omisslona in petition, in substance 
or form, if the issues require proofs of the facts imperfectly stated 
or omitted. 

Approved in Houghton v. Beck, 9 Or. 327, reaffirming rule. See 
note, 1 Am. Dec. 211. 

30 Tex. 154-159, HOOPEB y. HALL. 

In an Action of Trespass to try title, party must sue in his own 
right. 

Approved in Birmingham v. Griffin, 42 Tex. 148, party must sue 
in his own name; Smith v. Olsen (Tex. Civ.), 44 S. W. 874, party 
cannot sue for benefit of another. 

Under Act of 1844 Oonnty Court was authorized to decree specific 
performance against an administrator. 

Approved in Houston v. Killough, 80 Tex. 307, 16 S. W. 57, re- 
affirming rule; Cope v. Blount, 38 Tex. Civ. 518, 91 S. W. 616, holdings 
void probate court decree made in 1840, decreeing specific perform- 
ance of decedent's contract to convey. 

Tenant in Common, holding title bond, may recover from trespasser 
without proving compliance with conditions to entitle him to specific 
performance. 

Cited in 70 Am. Dec. 314, note. 

Under Kinetieth Section of Act regulating proceedings in district 
court, affidavit must show diligence before secondary evidence will 
be admitted. 

Approved in Hill v. Taylor, 77 Tex. 300, 14 S. W. 368, and Vander- 
griff V. Piercy, 59 Tex. 373, last custodian should be produced or 
absence accounted for. 

SO Tex. 160-162, PRESLEY y. STATE. 

Where, by Dlegal Act> Slave la Killed, slayer cannot be punished 
by fine. 

See note, 21 L. B. A. (n. s.) 10. 

Under Indictment Charging Accnaed with having, with malice 
aforethought, infiicted unusual injury on slave and killed him, verdict 
of guilty of cruel treatment is unwarranted. 

See note, 21 L. B. A. 13. 

30 Tex. 162-163, STATE v. HOTCHKI8S. 

On Indictment for Assault ''with intent to kill and murder,** it is 
error to quash bail bond because it recites offense, "an assault with 
Intent to kill." 

Approved in Meredith v. State, 40 Tex. 481, indictment reciting 
assault with intent to kill and murder is sufficient. 



153 NOTES ON TEXAS REPORTS. 30 Tex. 164-185 

30 Tte. 164-180, HOLLOWAT ▼. HOLLOWAT. 

Bolt most "be Brought in the name of the principal in whom the 
right may be, and not by agent. 

Approved in Milliken ▼. Smoot, 64 Tex. 173, plaintiff must recover 
is his own right. 

A Location Made In 1844, if not surveyed by February, 1853, be- 
comes null and void under act of 1852. 

Approved in Jones v. Lee, 86 Tex. 34, 22 S. W. 390, reaffirming 
rule; De Montel v. Speed, 53 Tex. 342, right attached when suit 
broaght to compel surveyor to accept location and survey; Taylor 
T. Criswell, 4 Tex. Civ. 108, 23 S. W. 425, time consumed in litigation 
to compel surveyor to act not included in time allowed by law. 

Deed of Bargain and Sale to Wife during coverture raised presump- 
tion of community property, and will not support an averment of 
separate property. 

Approved in Bonner v. Dale, 62 Tex. 302, in an action to settle 
a boundary, charge as to separate or community property is unneces- 
larv. 

Distinguished in Peters v. Clements, 46 Tex. 124, between them- 
selves and parties not affected it is separate estate when sheriff's 
deed runs to wife, husband paying consideration; Hutchins v. Bacon, 
46 Tex. 414, where suit is brought by feme sole in trespass to try 
title, presumption of community does not arise. 

Hnsband can Sne Alone or Jointly for separate property of wife, 
and evidence showing it to be hers will support the issue; but if 
proof show that property was community, action brought as for 
her separate property will fail. 

Approved in Hackworth v. English, 53 Tex. 495, reaffirming rule; 
McGregor v. Skinner (Tex. Civ.), 47 S. W. 399, where note sued on 
was wife's separate property. 

Husband Setting Up Property as his own, wife cannot, by interven- 
tion, change character of property purchased from community prop- 
erty to separate. 

Approved in Collins v. Turner, 1 Tex. Ap. Civ. 257, property ac- 
quired during coverture is prima facie community. 

Miscellaneous. — Miscited in Murphy v. Coffey, 33 Tex. 510, sale of 
homestead by husband without wife's consent is a nullity. 

90 Tex. 180-185, CASEY y. MABGH. 

An Attorney has a Lien on papers in his possession for his fees 
and npon money collected, but the lien rests upon possession. 

Approved in Bandolph v. Bandolph, 34 Tex. 185, and In re Paschal, 
10 WalL 495, reaffirming rule. See note, 51 Am. St. Bep. 251, 253, 
262. 

Lien of Attorney for Servlcea does not extend to a judgment 
before it shall have been collected by him. 

Approved in Texas etc. By. v. Showalter, 3 Tex. Ap. Civ. ^3, re- 
affirming rule; Baley v. Hancock (Tex. Civ.), 77 S. W. 659, attor- 
neys securing judgment by their services have no lien on fund re- 
eovered from bank in garnishment based on such judgment, where 
services in garnishment proceedings performed by another; Whit taker 
▼. Clarke, 33 Tex. 649, defendant not responsible to plaintiff's at- 
torney for fee. 



30 Tex. 186-224 NOTES ON TEXAS REPORTS. 154 

SO Tex. 186-191, ANDERSON v. McKAT. 

Under Act of 1860, Homestead is lot occupied or destined for 
family re»idence, value not exceeding two thousand dollars at time 
of designation; increased valuation by reason of improvements not 
included. 

Approved in Abrahams v. yollbaum, 54 Tex. 230, Robinson ▼. Rob- 
ertson, 2 Tex. Ap. Civ. 194, reaffirming rule; Scott v. Dyer, 60 Tex. 
137, Kempner v. Comer, 73 Tex. 203, 11 S. W. 196, Wolf v. Butler, 
8 Tex. Civ. 470, 28 S. W. 52, Stark v. Ingram, 2 Posey U. C. 636, 
and Moreland v. Barnhart, 44 Tex. 280, intent to appropriate as 
homestead should be evidenced by unmistakable acts; Kingsland v. 
McGowan, 3 Tex. Ap. Civ. 57, and Alexander v. Holt, 59 Tex. 206, 
crops growing on rural homestead are exempt from forced sale; 
McAmis V. Mclntyre, 1 Tex. Ap. Civ. 255, lumber to erect home- 
stead is exempt from forced sale; Morgan v. Rountree, 88 Iowa, 252, 
45 Am. St. Rep. 236, 55 N. W. 66, rent of homestead exempt. 

Miscited in Knopf v. Chicago Real Estate Board, 173 111. 199, 50 
N. E. 660, necessary parties to an action. 

30 Tex. 191-214, HORTON v. STATE. 

Under Article 265, Code of Criminal Procedure, bail bonds in 
criminal case, before or after indictment, must state the offense, and 
the offense must exist in law. 

Approved in Buie v. State, 1 Tex. Ap. 61, reaffirming rule; Hasty 
V. State, 32 Tex. 97, 98, dismissing appeal where recognizance does 
not atate term at which party is bound to appear nor state offense 
of which appellant charged. 

30 Tex. 214-224, SMEDLET v. STATE. 

Ownership, and from Whom Property is taken, should be stated 
in an indictment for robbery. 

Approved in Bray v. State, 41 Tex. 205, in theft fraudulent intent 
is a necessary constituent of the offense; Neely v. State, 8 Tex. 
Ap. 66, property taken under mistake of fact not theft; Barnes v. 
State, 9 Tex. Ap. 129, owner of property cannot be charged with 
its theft; Boles v. State, 58 Ark. 38, 22 S. W. 887, indictment must 
show that property belongs to party robbed or third person; Higgins 
V. State (Tex. Ap.), 19 S. W. 504, ownership of stolen property must 
be averred; McGinnis v. State, 16 Wyo. 79, 91 Pac. 938, and State 
▼. Dengel, 24 Wash. 51, 63 Pac. 1105, both holding indictment for 
robbery must set out ownership of property taken. See note, 70 Am. 
Dec. 179, 180, 181, 190. 

It Seems That It is not Robbery for the owner to take his property 
by violence and force from another's possession. 

Approved in Higgins v. State (Tex. Ap.), 19 S. W. 503, following 
rule; Glenn v. State, 49 Tex. Cr. 350, 92 S. W. 806, where defendant 
accused prosecutor of taking his money, and during altercation threat- 
ened him with hammer unless money returned, and prosecutor handed 
ever amount claimed, robbery not shown. 

An IndlctmAnt, though not good on a robbery charge, may support 
an assault and battery, per Donley, J., dissenting. 

Approved in Munsoa y. State, 21 Tex. Ap. 330, 17 S. W. 251, re- 
affirming rule. 



155 NOTES ON TEXAS EEPOBTS. 80 Tex. 224-257 

30 TflOL 224-232, MOOBE T. ANDEBSON. 

That a Portion of a Deposition is excluded will not be considered 
on appeal if that portion was cumolativey and could not have changed 
result. 

Approved in Houston etc. By. v. Hill, 70 Tex. 55, 7 S. W. 660, 
reaffirming rule. 

A New Trial will be Granted where evidence is wholly insufficient 
to support verdict. 

Approved in Sulzbacher v. Wilkinson, 1 Tex. Ap. Civ. 557, when 
no conflict exists, but deficiency of evidence, new trial should be 
granted. 

A Just Interpretation of Oontract must be had to ascertain whether 
a stipulated sum to be paid for breach is to be taken as liquidated 
damages or penalty. 

Approved in Yetter v. Hudson, 57 Tex. 613, and Eakin v. Scott, 
7a Tex. 445, 7 S. W. 778, reaffirming rule; Collier v. Betterton, 8 
Tex. Civ. 485, 29 S. W. 492, and Collier v. Betterton, 87 Tex. 442, 

29 S. W. 468, appl3ring principle to stipulated damages in building 
eontraeU; Fessman v. Seely (Tex. Civ.), 30 S. W. 269, holding ad- 
vanced payments on boy's tuition were liquidated damages. 

Damagee are Given as a Compensation or satisfaction for injury 
tetaally received, and should be commensurate, neither more nor less. 

Approved in E^ing v. Watson, 2 Tex. Ap. Civ. 215, reaffirming rule. 

fecial Damages must be Averred and proven, as they are the 
natural, but not necessary, result of the injury complained of. 

Approved in Glasscock v. Shell, 57 Tex. 221, reaffirming rule; 
BInm V. Conrad, 1 Tex. Ap. Civ. 70Q, damages resulting from sale 
of property must be special; Dolores Land etc. Co. v. Jones, 3 Tex. 
Ap. Civ. 329, special damages are not implied, but must be alleged 
and proven. 

30 Tex. 232-238, BLACK Y. OALLOWAT. 

Holder of Protested Bill of Exchange drawn within the state on 
nonresidents under act of 1848 may recover damages if condition 
of merchant and merchant exists. 

Approved in Davidson v. Peticolas, 34 Tex. 34, quaere, whether 
drawer and payee are not to be merchant and merchant to give mer- 
cantile character. 

30 Tex. 238-246, 94 Am. Dec. 301, McLEOD v. BOABD. 

Instance Where the Intention of a marriage settlement was to 
devest husband. 

BeafiSrmed in Poison v. Stewart, 167 Mass. 216, 45 N. E. 739, 36 
li. B. A 771. 

Parties may Agree that Lex Loci Oontractns may determine who 
shall take as heirs or distributees on wife's failure to dispose of 
property. 

See notes, 85 Am. St. Bep. 576; 57 L. B. A. 372. 

30 Tez. 246-257, KING Y. ELSON. 

Defendants Under Plea of not Qnilty may set up superior out- 
standing title, though not claiming under it. 

Approved in Adams v. House, 61 Tex. 641, and Lock wood v. Ogden 
(Tex. Civ.), 50 S. W. 1077, both applying rule in trespass to try 
title. 



30 Tex. 257-277 NOTES ON TEXAS BEPORTS. 156 

In Proving Outstanding Title, proof of search in land office is ad- 
missible. 

Approved in Keachele v. Henderson (Tex. Civ.), 78 S. W. 1083, 
holding evidence insufficient to show plaintiff's ancestor was without 
notice of prior appropriation at time of patent. 

SO Tez. 257-277, 94 Am. Dec. 304, STAFFORD ▼. KINO. 

Surveyor must See That Objects on iMid located are designated 
and calls in field-notes will be presumed until contrary shown, and if 
boundaries can be identified, patent is valid, though no survey made. 

Approved in Jones v. Burgett, 46 Tex. 292, Gerald v. Freeman, 68 
Tex. 204, 4 S. W. 257, and Bacon v. State, 2 Tex. Civ. 708, 21 S. 
W. 162, all reaffirming rule; Phillips v. Ayres, 45 Tex. 605, pre- 
sumption of survey continues until contra shown; Boon v. Hunter, 
62 Tex. 587, patent not void because no survey actually made; 
Lubbock V. Binns, 20 Tex. Civ. 410, 50 S. W. 585, patent acquiesced 
in for fifty years will not be reformed as to survey; Webb v. Brown, 
2 Posey V. C. 40, it will be presumed that surveyor actually made 
survey called for; Piatt v. Vermillion, 99 Fed. 365, law presumes 
surveys are actually run. See note, 3& Am. St. Bep. 154. 

Bnles as to Controlling Galls are natural objects, artificial objects, 
and courses and distances. 

Approved in Maddox v. Fenner, 79 Tex. 290, 15 S. W. 239, reaf- 
firming rule; Huff v. Crawford (Tex. Civ.), 32 S. W. 595, upholding 
instructions given. See notes, 129 Am. St. Bep. 1004; 3 Am. St. Bep. 
721. 

Most Material and Certain Calls control those less material and 
certain. 

Approved in Jones ▼. Andrews, 62 Tex. 660, and Ayers v. Wat- 
son, 113 U. S. 605, 5 Sup. Ct. Bep. 646, 28 L. 1093, reaffirming rule; 
McAninch v. Freeman, 69 Tex. 447, 4 S. W. 370, distance will prevail 
over an unmarked line; Ayers v. Watson, 113 U. S. 608, 5 Sup. Ct. 
Bep. 648, 28 L. 1093, courses control distances, and course and dis- 
tances control quantity. 

Course and Distances are Most Unreliable calls, and distances less 
reliable than courses. 

Approved in Phillips v. Ayres, 45 Tex. 606, Ayers v. Harris, 64 
Tex. 302, Lilly v. Blum, 70 Tex. 710, 6 S. W. 284, and Luckett v. 
Scruggs, 73 Tex. 521, 11 S. W. 530, all reaffirming rule; Davis v. 
Smith, 61 Tex. 21, and Woods v. Bobinson, 58 Tex. 661, natural ob- 
jects prevail over distances. See note, 100 Am. Dec. 738. 

Where Rules for Location of Land produce contradictory results, 
the rule most consistent with intention on face of patent, read in 
light of surrounding circumstances, must be adopted. 

Approved in Ayers v. Harris, 64 Tex. 301, Lilly v. Blum, 70 Tex. 
711, 6 S. W. 285, and Huff v. Crawford, 89 Tex. 223, 34 S. W. 610, 
all reaffirming rule; Bigham v. McDowell, 69 Tex. 102, 7 S. W. 316, 
distances will prevail over natural call if it is apparent that they 
are more correct; Ayers v. Harris, 64 Tex. 304, arguendo. 

Actual Identification of Survey and footsteps of surveyor on 
ground should always be followed, by whatever rule traced. 

Approved in Williams v. Winslow, 84 Tex. 376, 19 S. W. 515, 
and Oliver v. Mahoney, 61 Tex. 612, reaffirming rule; Morgnn v. 
Mowles (Tex. Civ.), 61 S. W. 156, when footsteps of survey are found 
and identified^ all other calls yield; Cox v. Finks (Tex. Civ.), 41 



157 NOTES ON TEXAS EEPOBTS. 30 Tex. 278-279 

S. W. 99, holding corner established on the ground controls one which 
ii merely sapposititious. 

Calls axe DescriptlYe or Directory and special locative, and the 
litter prevails. 

Approved in Blum v. Bowman, 66 Fed. 886, and Lillj v. Blum, 
70 Tex. 710, 6 S. W. 284, special locative calls prevail over directory 
or descriptive calls. 

The Becords of the Land Office are better evidence than the com- 
missioner's evidence as to the contents. 

Approved in Bradford v. Brown, 37 Tex. Civ. 324, 84 8. W. 392, hold- 
ing inadmissible deposition of commissioner of general land office to 
»how lease of school lands had been canceled; Williams v. Davis, 56 
Tex. 253, best evidence must be produced or accounted for; Bigham v. 
Talbot, 63 Tex. 274, certified copies are better evidence than testi- 
mony of witnesses; Clayton v. Bhem, 67 Tex. 54, 2 S. W. 46, certified 
copy is primary evidence. 

A Judgment must be a Oondiuion of Law from the facts found. 

Approved in Castle v. Kapiolani Estate, 16 Haw. 36, and Eastham 
V. Sallis, 60 Tex. 580, both reaffirming rule; Mc Anally v. Haynie, 
17 Tex. Civ. 525, 42 S. W. 1051, decree in equity shall command 
what shall be done to carry, judgment into execution; Bailroad Com- 
mission V. Weld (Tex. Civ.), 66 S. W. 127, judgment in action by one 
dissatisfied with railroad commission's rate finding rate unjust, but 
not according relief to plaintiff, is not appealable. See note, 73 Am. 
Dee. 256. 

Object of Verdict la to Respond to issues made by pleadings and 
sapported by evidence. 

Approved in Davis v. Shepherd, 31 Colo. 152, 72 Pac. 60, upholding 
nffieiency of verdict in ejectment relating to mining vein. 

An Objection to Deposition of Witness not shown to be out of 
eoaoty at time of trial should be sustained in absence of affi- 
davit. 

Cited in 62 Am. Dec. 521, note. 

A Plea of Three Years* Oontinuons Possession before suit claiming 
under location and survey under valid certificate is good. 

Approved in League v. Rogan, 59 Tex. 433, reaffirming rule; Cres- 
well Ranche etc. Co. v. Waldstein (Tex. Civ.), 28 S. W. 262, holding 
eertifieate of location is color of title. 

Where Issoe was aa to Oonflict of Survey, verdict should find what 
actnal conflict is. 

Approved in Farnandes v. Schiermann, 23 Tex. Civ. 345, 55 S. W. 
380, where southwest as well as northeast line of conflicting sur- 
vey in dispute, verdict merely fixing latter line at fixed distance 
from former is void. 

90 Tei. 278-279, BROOKS ▼. HOWABD. 

Third Ap]^lcation for Continuance is addressed to discretion of 
eoort 

Approved in Gulf etc. By. Co. v. Burroughs, 27 Tex. Civ. 425, 66 
8. W. 85, following rule; Green v. Dunman, 35 Tex. 176, application 
for leave to amend affidavit for continuance is addressed to discre- 
tion of court. And see note, 74 Am. Dec. 142. 



30 Tex. 280-291 NOTES ON TEXAS BEPOBTS. 15S 

A Third Application for Oontinuance under certain eireamstancea 
may be improperly denied. 

Approved in East Texas Land ete. Co. v. Texas Lumber Co., 21 
Tex. Civ. 413, 52 8. W. 647, reaffirming rule; Watts v. Holland, 66 
Tex. 62, reversing for refusal to place witnesses under rule in pro- 
ceeding to establish nuncupative will between alleged executor and 
heirs as contestants in which conspiracy alleged between executor 
who was witness and other witnesses; State v. Lindsay, 78 N. C. 
500, where manifest injustice is done it will be reviewed on appeal. 

30 Tex. 280-283, HALL ▼. MOBBIS. 

Voluntary Appearance of Parties and submission to arbitrators 
without objection is a waiver of right to have clerk assign a day for 
meeting. 

Approved in Alexander v. Mulhall, 1 Posey U. C. 768, filing of 
agreement to arbitrate may be waived. 

30 Tex. 284-291, BOOEB8 ▼. OBANE. 

Expressions of Person AfOicted with pain as to his health and 
sensation are original evidence, and, if made to medical man, are of 
greater weight, but are admissible if made to others. 

Approved in Atchison etc. B. B. v. Johns, 36 Kan. 783, 59 Am. 
Bep. 612, 14 Pac. 245, and Newman v. Dodson, 61 Tex. 95, reaffirming 
rule; St. Louis etc. By. Co. v. Burke, 36 Tex. Civ. 225, 81 S. W. 776, 
upholding admissibility of testimony of physician to statements of 
pain made by deceased to him while examining him for treatment; 
Wright V. Fort Howard, 60 Wis. 123, 60 Am. Bep. 351, 18 N. W. 
751, statement made to other men than medical men not to be re- 
jected; Atchison etc. By. v. Click (Tex. Civ.), 32 S. W. 227, physician's 
statement based on declaration of patient held admissible; Bonham 
V. Crider (Tex. Civ.), 27 S. W. 419, admitting injured plaintiff's 
statement that he could not walk. And see notes, 93 Am. Dec. 280, 
95 Am. Dec. 67, and 33 Am. Bep. 829. 

Limited in Tyler etc. By. v. Wheeler (Tex. Civ.), 41 S. W. 518, 
holding statements, other than to the physician, inadmissible. 

Inquiries by Medical Men and answers thereto are admissible to 
show state of health. 

Approved in Newman v. Dodson, 61 Tex. 96, opinion of medical 
men is evidence of state of health whether or not founded on an- 
swer to inquiries; Gulf etc. By. v. Brown, 16 Tex. Civ. Ill, 40 S. W. 
618, inquiries of medical men and answers are admissible to show 
state of health; State v. Blydenburg, 135 Iowa, 275, 112 N. W. 639, 
applying rule in murder prosecution. 

To Show State of Health it is competent to prove how he looked, 
acted, and complained, if bodily suffering complained of is con- 
temporaneous and coexisting with declaration. 

Approved in Texas Cent. B. Co. v. Powell, 38 Tex. Civ. 161, 86 
S. W. 22, Morrison v. State, 40 Tex. Cr. 492, 51 S. W. 363, Cox v. 
State, 8 Tex. Ap. 296, and Carthage ete. Co. v. Andrews, 102 Ind. 
145, 1 N. £. 368, all reaffirming rule; Jackson v. Missouri etc. By. 
Co., 23 Tex. Civ. 322, 65 S. W. 377, in action for personal injuries, 
witness may testify to having heard groans and exclamations of 
pain from plaintiff, though uttered after suit commenced; Houston 
etc. B. B. V. Bitter, 16 Tex. Civ. 484, 41 S. W. 754. statements made 
three days after injury not part of res gestae; San Antonio t. Porter, 



159 NOTES ON TEXAS REPORTS. 30 Tex. 291-308 

24 Tez. Civ. 450, 59 S. W. 926, nervous seiiBation coexisting with 
expression is part of res gestae; Atchison etc. B. B. v. Johns, 36 
KsJL 781, 59 Am. Bep. 611, 14 Pac. 245, declarations of past suffer- 
ing and pain not admissible. 

Opinion of Medical Man is evidence of person's health, and answers 
of patient to inquiries are admissible collaterally to support and 
explain opinion. 

Beaffirmed in Texas etc. By. t. Ayres, 83 Tex. 270, 18 S. W. 685. 

The Objector must ProTo Witness incompetent. 

Reaffirmed in Spann v. Glass, 35 Tex. 763. 

Where There is Conflict of Evidence a new trial will be granted 
plaintiff if material evidence which proved his case was excluded. 

Beaffirmed in Trinity Go. Lumber Co. v. Denham, 88 Tex. 207, 30 
a W. 857. 

StatementB of Slaves as to Their DiseasQs are admissible, though 
tlaves incompetent witnesses. 

Approved in Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 487, 108 
3. W. 1056, incompetency of infant as witness does not affect ad- 
missibility of his declarations which are part of res gestae; Kenney 
T. State (Tex. Cr.), 79 8. W. 819, admitting evidence of mother as 
to declarations of infant three and one-half years old as to complaint 
of lape where part of res gestae. 

30 Tei. 291-296, AI.EXANDEB v. WITHEB8POON. 

An Award is a Good Btatatory Award and enforceable if there has 
been a strict compliance with the statute regulating settlements by 
eoneihation and arbitration. 

Approved in Gautier v. McHenry, 15 Tex. Civ. 333, 39 S. W. 603, 
agreement need not state amount in controversy. 

Statate Bespecting arbitration requires that judgment thereon be 
entered at next succeeding term; hence judgment entered at pending 
tena is void. 

Approved in Crouch v. Crouch, 30 Tex. Civ. 292, 70 8. W. 597, 
aad Bmlay v. Brooks (Tex. Civ.), 50 S. W. 648, both following rule; 
Fortune v. Killebrew (Tex. Civ.), 21 S. W. 991, but such judgment 
is not void on coUaterial attack, 

SO Ttt. 296-308, HENDRIOKS V. 8NEDIKEB. 

Tt> Enforce Voluntary Oonveyance to entitle party to aid of equity, 
bis claim must be supported by a valuable consideration. 

Approved in Cauble v. Worsham, 96 Tex. 92, 97 Am. St. Bep. 871, 
t'O S. W. 738, where married woman took by parol gift, land which 
she improved and possessed, she could only convey by deed joined 
in by husband with her separate acknowledgment; Wooldridge v. 
Hancoek, 70 Tex, 21, 6 8. W. 822, and Ponce v. McWhorter, 50 Tex. 
571, verbal sale of land is valid where purchase money is paid and 
improyementa made without vendor's objection. 

There Need be Ko Pecuniary Benefit pass to create valuable con- 
sideration, a detriment to other party equally as operative. 

Approved in McCarty v. May (Tex. Civ.), 74 S. W. 805, where 
in eonsideration of plaintiff's conveyance of land to townsite com- 
ptnj defendant orally agreed to convey to plaintiff fifty acres of 
Und of equal value, agreement based on sufficient consideration; 
Murphy v. Stell, 43 Tex. 131, and Willis v. Matthews, 46 Tex. 483, 
gift from father to eon may be supported by possession and valuable 



30 Tex. 308-344 NOTES ON TEXAS EEP0RT8. 160 

improvements; Lane v. Scott, 57 Tex. 373, damage to promisee eon- 
Btitutes good consideration; Wolford v. Powers, 85 Ind. 308, 44 Am. 
Bep. 27, pecuniary benefit need not pass to vendor to make valuable 
consideration. 

An Uncertain Equity l8 not Subject to forced sale. 

Approved in Bradshaw v. House, 43 Tex. 145, uncertain estate not 
subject to execution; Edwards v. Norton, 55 Tex. 410, uncertain 
equitable interest in land is not subject to sale under execution; 
Moser v. Tucker, 87 Tex. 96, 26 S. W. 1045, equitable interest not 
subject to seizure; Chase v. York Co. etc. Bk., 89 Tex. 321, 59 Am. 
St. Bep. 53, 36 S. W. 409, 32 L. B. A. 785, equitable interest in land 
not subject to execution; Cavil v. Walker, 7 Tex. Civ. 308, 26 S. W. 
855, husband's interest in wife's separate property, one-fourth paid 
out of community fund, not subject to execution. And see note, 97 
Am. Dec. 306. 

It is Brror to Sustain Demurrer to petition where plaintiff showed 
title but claimed relief on other and erroneous grounds. 

Distinguished in Molino v. Benavides, 94 Tex. 414, 60 S. W. 875, 
plaintiff confined to proof of title pleaded. 

Interest in Land Only to Extent of Right to recover for improve- 
ments is not subject to forced sale under execution. 

Approved in Day v. Stone, 59 Tex. 615, improvements not subject 
to seizure and forced sale; Mooring v. McBride, 62 Tex. 312, claim 
for compensation for improvement made on land is not an interest 
subject to execution. 

30 Tex. 308-331, DAVENPOBT ▼. HEBVEY. 

Party Contesting Petition for Letters in county court might, by 
precise exception taken at appearance, be compelled to show interest 
in estate. 

Approved in Newton t. Newton, 61 Tex. 512, reaffirming rule. 

Where a Ck>unty Oourt's Decree passing on administrator's exhibit 
and account for final settlement is reversed on appeal, it is reversed 
as to all parties having a joint interest in it. 

Approved in Phelps v. Ashton, 30 Tex. 348, holding upon appeal 
from county court, the case is to be tried de novo in district court, 
where all interested parties may be heard. 

Statute in Reference to Assigning Error and filing transcript is 
mandatory, and court is not compelled to notice matter upon a 
record submitted without observance of law. 

Approved in Hunt v. Askew, 46 Tex. 250, reaffirming rule; Gib- 
son V. Schoolcraft, 1 Tex. Ap. Civ. 25, submission on brief does not 
obviate rule. 

Appeal Lies to District Oourt from order rejecting administrator's 
report and directing him to file report on designated basis. 

Approved in Halbert v. Alford, 82 Tex. 299, 17 S. W. 596, uphold- 
ing appeal by guardian from order of county court requiring him to 
report as to property alleged by him to have been withdrawn from 
his control as guardian by administration proceedings in another 
county 

80 Tex. 332-344, BX7FFIEB ▼. WOIffACK. 

A Deed and Otber Contract relating to realty executed on same 
day must be construed together, to determine whether conditional 
sale or mortgage. 



161 NOTES ON TEXAS EEPOBTS. 30 Tex. 344-349 

Approved in Miller ▼ . Yturria, 69 Tex. 554, 7 S. W. 209, reaffirmiiig 
rule; Kirbj v. National Loan etc. Co., 22 Tex. Civ. 264, 54 S. W. 
1085, agreement coupled with stipulation to reconvey will, if it was 
the intention of the parties, be construed a conditional sale; Gassert 
v. Bogk, 7 Mont. 597, 19 Pac. 283, 1 L. B. A. 240, sale of land with 
agreement to reconvey will be upheld if that was intended. 

Conditional Sales will be Upheld if such was the intention of the 
parties, and the pre-existing debt is canceled. 

Approved in Calhoun v. Lumpkin, 60 Tex. 189, reaffirming rule; 
Thompson v. Terry, 3 Tex. Ap. Civ. 48, law will construe a contract 
to be a mortgage rather than a conditional sale. 

A Mortgage Exists if the Condition of debtor and creditor remains, 
and if pre-existing debt remaims the new arrangement will be held 
mere change of security. 

Approved in Vangilder v. Hoffman, 22 W. Va. 29, reaffirming rule; 
Keller v. Kirby, 34 Tex. Civ. 405, 79 S. W. 83, instrument in form 
of deed but in fact a mortgage; does not by cancellation of note for 
debt secured and parol agreement that it shall convey absolute 
title convey such title to mortgagee; Stafford v. Stafford, 29 Tex. 
Civ. 76, 71 S. W. 986, where A agreed that B should buy A's land at 
execution sale against A and take title as security for payment to 
him by A of amount of debt, transaction not constructive trust; 
Beale v. Byan, 40 Tex. 409, a conveyance showing intention of 
security is a mortgage; Gibbs v. Penny, 43 Tex. 563, intention and 
not form determines character of instrument; Walker v. McDonald, 

49 Tex. 462, and Hudson v. Wilkinson, 45 Tex. 452, intent of parties 
governs; Alstin v. Cundiff, 52 Tex. 462, if relation of debtor and 
creditor still exists a mortgage remains; Loving v. Milliken, 59 Tex. 
425, equity will look to circumstances attending execution to deter- 
mine; Hubby T. Harris, 68 Tex. 95, 98, 3 S. W. 559, 560, in a mort- 
gage, mortgagee should have remedy against person of mortgagor, 
whereas possession by mortgagee rebuts idea of a mortgage; Peters 
Saddlery etc. Co. v. Sohoelkopf, 71 Tex. 420, 9 S. W. 338, and Miller 
V. Tturria, 69 Tex. 555, 7 S. W. 209, pre-existing debt continuing is 
true test of mortgage; Gray v. Shelby, 83 Tex. 408, 18 S. W. 810, and 
Smith V. Cassidy, 73 Tex. 164, 12 S. W. 15, both holding that equity 
looks to substance and not the face of the instrument; Kainer v. 
Blank, 6 Tex. Civ. 5, 24 S. W. 853, pre-existing debt remaining 
creates mortgage; Smith t. Anderson, 8 Tex. Civ. 193, 27 S. W. 776, 
consideration need only be a present advancement; Wilcox v. Ten- 
nant, 13 Tex. Civ. 225, 35 S. W. 867, relation of debtor and creditor 
continuing deed will be construed a mortgage; Haynie v. Bobertson, 
.58 Ala. 40, extinguishment of pre-existing debt creates conditional 
sale; Vangilder v. Hoffman, 22 W. Va. 16, equity favors mortgage 
in questions of doubt; Williams v. Chambers (Tex. Civ.), 26 S. W. 
272, holding absolute conveyance of homestead a mortgage; McKeen 
V. James (Tex. Civ.), 23 S. W. 462, upholding finding that deed was 
a mortgage. See notes, 4 Am. St. Bep. 708; 94 Am. St. Bep. 237; 1 
L. B. A. 240. 

50 Tex. 344-349, PHELPS ▼. A8HT0N. 

An Appeal BemoTes Oanse from county to district court, there to 
be tried on record and proof of facts. 
Approved in Harrison v. Oberthier, 40 Tex. 390, reaffirming rule. 

2 Tex. Notes — 11 



30 Tex. 349-361 NOTES ON TEXAS REPORTS. 162 

Upon Appeal to District from County Court by an interested party 
case is to be tried de novo. 

Approved in Elwell v. Universalist etc. Convention, 76 Tex. 518, 
13 S. W. 553, reaffirming rale; Stone v. Byars, 32 Tex. Civ. 158, 73 S. 
W. 1088, on appeal to district court from probate court, parties en- 
titled to change of venue. 

30 Tex. 349-352, WOLFE ▼. IiACY. 

Net Value at Destination of shipped article lost is the criterion 
of damages for breach of contract, and interest as a legal incident 
should not be allowed. 

Approved in Texas etc. Ry. v. Martin, 2 Tex. Ap. Civ. 297, re- 
affirming rule; Houston etc. Ry. v. Jackson, 62 Tex. 213, interest 
may be allowed by way of mulct or punishment for delinquency; 
Watkins v. Junker, 90 Tex. 587, 40 S. W. 12, interest allowable as 
punishment on damage for breach of contract made by carrier; H. 
& T. etc. Ry. v. Stewart, 1 Tex. Ap. Civ. 720, measure of damage in 
conversion is the value at time of conversion — interest might be 
allowed as punishment; Railroad v. Wallace, 91 Tenn. 42, 17 S. W. 
884, 14 L. R. A. 548, interest not allowable as part of verdict for 
personal injury; Houston etc. Ry. v. Jackson, 62 Tex. 215, arguendo. 

Interest may be Allowed as punitive damages for lose of property 
in transportation through gross neglect of carrier. 
See note, 18 L. R. A. 452. 

80 Tex. 352-354, DAVIS ▼. STATE. 

Where Indictment Follows Statute, but bail bond does not describe 
an offense known to law, the indictment will be quashed. 

Approved in Riviere v. State, 7 Tex. Ap. 57, omission of essential 
description of the offense is fatal; Cochran v. State, 36 Tex. Cr. 117, 
35 S. W. 969, every act which constitutes an element of the offense 
must be alleged. 

30 Tez. 354-356, STATE ▼. SIiACK. 

Indictment must State Time and Place of commission of offense. 

Approved in State v. Hinkle, 27 Kan. 313, and Rhodes v. Common- 
wealth, 78 Va. 696, reaffirming rule. 

30 Tez. 356-359, THOMPSON v. STATE. 

An Indictment for Theft Charging that defendant "did steal, kill, 
and carry away a hog" is not an indictment for , malicious mischief. 

Cited in 58 Am. Dec. 246, note. 

General Charge of Stealing Animal raises presumption of a live 
animal. 

Reaffirmed in Ballow v. State, 42 Tex. Cr. 263, 58 S. W. 1023, and 
Ballow V. State, 42 Tex. Cr. 267, 58 S. W. 1024. 

30 Tex. 860-361, STATE ▼. DAUGHERTY. 

An Indictment will be Quashed on motion if a material word is 
omitted, and court will not supply missing word. 

Approved in Edmonson v. State, 41 Tex. 498, Ewing v. State, 1 
Tex. Ap. 363, Walker v. State, 9 Tex. Ap. 178, Jones v. State, 21 
Tex. Ap. 351, 17 S. W. 424, and Scroggins v. State, 36 Tex. Cr. 118, 
35 S. W. 968, all reaffirming rule; Ridgeway v. State, 41 Tex. 232, 
failure to completely define offense is fatal; State v. Williamson, 43- 



leS NOTES ON TEXAS REPORTS. 30 Tex. 361-376 

Tex. 502, misspelled word in indictment fatal in arrest of judgment; 
GairoU v. State, 6 Tex. Ap. 464, applying principle to a recogniz- 
anee; State t. Hagan, 164 Mo. 660, 65 S. W. 250, failure to allege 
mnrdered man is dead ib fatal to indictment; Menasco v. State (Tex. 
Ap.), 11 8, W. 898, indictment void for omission of "did." 

Distinguished in Caesar v. State, 50 Fla. 3, 39 So. 470, refusing to 
leverBe conviction for omission of word "did" before "engage" in 
indietment, where omission merely clerical and meaning perfectly 
eleax and defendant not misled. 

SO Tte. 361-367, 94 Am. Dec. 313, TIPPETT v. MIZE. 

Administrator With Will Annexed derives power to sell property 
from general law and not from will. 

Approved in Yardeman t. Ross, 36 Tex. 113, administrator de bonis 
■on derives his power from the law; Frisby v. Withers, 61 Tex. 138, 
powers given by a will to executor is personal; In re Grant, 93 Tex. 
73, 53 8. W. 374, on death of independent executor court can only 
appoint administrator to act under general laws; Compton v. Mc- 
Uahan, 19 Mo. Ap. 505, executor derives his power from the will; 
Hnbermann v. Evans, 46 Neb. 788, 65 N. W. 1047, sale by guardian 
without order of coort is void. And see notes, 84 Am. Dec. 611; 4^ 
Am. St. Rep. 580. 

Sato by Administrator at place not authorized by law though at 
place provided for in will, which provided probate court should haver 
BO aathority over estate, is void. 

See notes, 80 Am. St. Rep. 103, 104; 33 L. R. A. 94. 

90 T^ 367-374, 94 Am. Dec. 317, BILLARD ▼. STATE. 

In an Indictment for Larceny, one person having the general and 
another the special property in the thing, the indictment may be 
averred in either. 

Beaffirmed in Gainev v. State, 4 Tex. Ap. 331. See notes, 99 Am. 
Dee. 473; 9 Am. St. Rep. 242. 

The Jury mnst Find That Defendant is Onllty beyond a reasonable 
doDbt, and the doubt must be actual and substantial — not mere possi- 
bility and speculative. 

Approved in Conner v. State, 34 Tex. 661, and Ethington v. State, 
55 Tex. 127, reaffirming rule; Long v. State, 1 Tex. Ap. 475, juries 
are the judges of the exculpating circumstances. See notes, 2 Am. 
St. Bep. 843; 6 Am. St. Rep. 61; 6 Am. St. Rep. 780; 23 Am. St. Rep. 
174; 23 Am. St. Rep. 688; 48 Anr. St. Rep. 569; 48 Am. St. Rep. 578; 
17 L. R. A. 707. 

Property Taken by Mistake and lost by negligence does not estab- 
Hah felonious intent. 

Approved in Johnson v. State, 1 Tex. Ap. 120, and Quitzow v. 
State, 1 Tex. Ap. 69, felonious intent is essential ingredient in crime 
of theft; Robinson v. State, 11 Tex. Ap. 408, 40 Am. Rep. 793, Dow 
T. State, 12 Tex. Ap. 345, Morrison v. State, 17 Tex. Ap. 37, 50 Am. 
Bep. 121, and Loza v. State, 1 Tex. Ap. 490, felonious intent must 
exist at time of taking. And see notes, 3 Am. St. Rep. 693; 6 Am. 
8t Bep. 47. 

80 Tex. 375-376, 94 Am. Dee. 322, HAMMOIO) v. MTEB8. 

When Sniety Pays Debt in foreign state barred by statute of that 
itate the action accrues at date of payment| and not at date of 
original obligation. 



30 Tex. 380-396 NOTES ON TEXAS EEPORTS. 164 

Approved in dissenting opinion in Burnis v. Cook, 117 Mo. Ap. 
385, 93 S. W. 893, majority hoIdiDg surety of judgment debtor satisfy- 
ing judgment may sue cosurety after running of limitations against 
action for contribution but within period within which judgment 
creditor might have sued principal. See notes, 87 Am. St. Bep. 118; 
61 Am. Dec. 505; 59 Am. St. Bep. 851. 

30 Tex. 380-382, BEBRY ▼. BLANEENSHIP. 

Party Appealing Failing to File Transcript of Becoxd, appellee may 
file certificate at next court term and have judgment affirmed. 

Approved in Laughlin v. Dabney, 86 Tex. 121, 24 S. W. 259, cer- 
tificate of affirmance must be filed with motion to affirm at the term 
to which appeal was perfected; Pickett v. Mead (Tex. Civ.), 25 8. W. 
655, holding rule the same under Beviscd Statutes, section 1035. 

80 Tex. 382-386, BYAN ▼. FLDTT, 

Ordinanco of 1866 Does not Api^y to forty-seventh section of act 
to regulate proceedings in county court relative to estates of deceased 
person. 

Approved in McClelland v. Slauter, 30 Tex. 498, and Grigsby ▼. 
Peak, 57 Tex. 145, reaffirming mle. 

Ordinance of 1866 Embraces Only those general laws which deny 
rights of action. 

Approved in Chandler v. Westfall, 30 Tex. 478, statute requiring 
suit to be brought to fix liability of indorser not a statute of limi- 
tation; Walker v. Taul, 1 Tex. Ap. Civ. 20, statutes of appeal are 
not statutes of limitation. 

Olaim Approved and Allowed After Expiration of Time will be 
placed on schedule of postponed claims. 

Beaffirmed in Standifer v. Hubbard, 39 Tex. 419. 

80 Tex. 386-390, SHBADEB ▼. STATE. 

Supreme Court cannot Say whether or not a state of government 
existed in Texas in 1866. 

Approved in Houston etc. B. B. v. Kuechler, 36 Tex. 418, applying 
principle to mandamus proceedings. 

Sheriff may, After Defendant Committed, approve bond in sum 
prescribed by magistrate. 

Distinguished in Crumpecker v. State, 46 Tex. Cr. 134, 79 S. W. 
564, bail bond is valid though approved by magistrate when court not 
in session, as approval is unnecessaiy. 

Judgment in Criminal Case is mittimus in itself. 

Approved in Spradley v. State, 23 Tex. Civ. 23, 56 S. W. 115, 
judgment that defendant convicted of misdemeanor be committed 
to custody of sheriff till fine paid is sufficient compliance with Code 
Cr. Proc, arts. 845, 847, without issuance of writ of commitment. 

30 Tex. 390-396, SHAW v. TBUNSLEB. 

If Answer of Defendant Admits an equity, the court will not dis- 
turb tenor, even if instrument should be construed to establish no 
legal right. 

Reaffirmed in Knight v. McBeynolds, 37 Tex. 209, and Bridges v. 
Beynolds, 40 Tex. 214. 

Note Payable in Specie^ but no averment of difference of value be- 
tween coin and paper currency, it is error to admit evidence of differ- 
ence and to render judgment in alternative. 



165 NOTES ON TEXAS BEPOBTS. 30 Tex. 397-422 

Beafirmed in Flournoy ▼. Uealj, 31 Tex. 591. See note, 29 L. B. 
A. 515. 

Ckdd and SflTsr Ooin Sanctioned by act of GongresB is legal cur- 
TeacT and valne of legal tender is fixed by Congrew. 

Beaffirmed in Eillough ▼. Alford, 32 Tex. 458, 5 Am. Bep. 250. 

30 Tte. 397-399, PAYNE ▼. STATE. 

On Appeal to the Supreme Conrt the offense with which the defend- 
lat JB charged should be stated in recognizance. 

BeafBrmed in Bnie ▼. State, 1 Tex. Ap. 61. 

SO Tex. 399-400, STATE ▼. PINE. 

ImUctmeiit for Malidoui Mischief alleging defendant maliciously 
killed dog of A with intent to injure owner thereof is good. 

See notes, 128 Am. St. Bep. 173; 40 L. B. A. 512, 513. 

50 Tex. 402-404, LOWEBY ▼. STATE. 

Persons Joining Together for the Purpose of Injuring Property of 
a third are guilty of conspiracy, but it is not necessary to prove 
previous plan. 

Cited in Stdte t. Coleman, 29 Utah, 422, 82 Pac. 467, fact that 
owner of dog poisoned by defendant was unknown to defendant 
does not preclude finding that poisoning done maliciously. Seb note, 

51 Am. Dec. 83, 93. 

30 Tex. 404-406, WHXIAMS ▼. STATE. 

An Indictment is Sufficient which states that jurors were sworn 
ind charged to inquire into and make true presentments of crimes 
cognizable in the district courts committed within the county and 
itate. 

Approved in Early v. State, 1 Tex. Ap. 263, and Coker v. State, 
7 Tex. Ap. 85, reaffirming rule; Vanvickle v. State, 22 Tex. Ap. 
625. 2 S. W. 643, indictments must state that the grand juror was 
impaneled for the county. 

30 TttL 411-421, EUOT ▼. WHITAKEB. 

Under Fifteenth Section of Act of Limitation party purchasing 
laad known to him to have been previously sold by bis grantor 
i> guilty of such a fraud as destroys the conveyance as a munition 
of title. 

Approved in Allen v. Boot, 39 Tex. 599, Grigsby v. May, 84 Tex. 
257, 19 S. W. 348, and Henderson v. Beaton, 1 Posey U. C. 33, all 
reaffirming rule; Snowden v. Bush, 69 Tex. 595, 6 S. W. 770, apply- 
ing principle to possession, party claiming under five years* statute; 
Blum V. Bogers, 71 Tex. 677, 9 S. W. 597, sheriff's deed breaks chain 
of title. 

Diatisgnished in League v. Began, 59 Tex. 430, no vice in title 
tnbsequcnt to patent; Grigsby v. May, 84 Tex. 254, 19 S. W. 348, 
holding a patent to the heirs to be a title from the sovereignty 
within the meaning of statutes of limitations. 

30 Tex. 421-422, SAX7NDESS ▼. BROCK. 

Verbal Agreement Concerning Account Anterior to execution of 
note cannot be proven unless it is proven that mistake was made 
aa to amount of indebtedness named in note. 



80 Tex. 422-446 NOTES ON TEXAS REPORTS. 166 

Approved in Ablowieh t. Greenville Nat. Bk., 22 Tex. Civ. 274, 54 
S. W. 795, promise to pay specified sum in note cannot be varied bj 
parol evidence. 

SO Tex. 422-427, PELHAM ▼. STATE. 

Under Act of 1858 trial of claims against the state are neither 
actions in equity nor at law within the constitution. 

Cited in 48 Am. Dec. 192, note. 

A Statement of Facts not certified by judge will not be considered 
by the court. 

Approved in Brooks v. State, 2 Tex. Ap. 2, agreed statement of 
facts is insufficient. 

30 Tex. 428-431, STATE V, OXFOBD. 

Indictment may be Set Aside on motion when record shows that 
it was found by less than twelve jurors, and that third person was 
present during deliberations. 

Approved in Reed v. State, 1 Tex. Ap. 3, reaffirming rule; John- 
son V. State, 22 Tex. Ap. 222, 2 S. W. 613, indictment found on 
advice of district attorney will not be set aside. 

It is Error to Entertain Plea after indictment regularly returned, 
noted and filed, that it was not act of grand juror. 

Ovesruled in Territory v. Hart, 7 Mont. 54, 14 Pac. 772, defendant 
may plead to indictment. And see note, 16 Am. Dec. 284. 

Grand Jurors are not Permitted to testify against their records 
as officially reported. 

Approved in Taylor v. State, 49 Fla. 89, 38 So. 387, upholding 
refusal to permit query to grand juror as to whether or not indict- 
ment was ignored and afterward without further testimony indict- 
ment was found; Gitchell v. People, 146 111. 181, 37 Am. St. Rep. 
150, 33 N. E. 758, affidavit of grand juryman not admissible. See 
note, 12 Am. St. Rep. 918. 

80 Tez. 432-435, FOWUESB v. OILMOBE. 
Books of a Professional Man are exempt from execution. 
See note, 123 Am. St. Rep. 146. 

30 Tex. 440-444, MOOBE ▼. WHITIS. 

Where Mortgagor Besiding on Same Lot as his storehouse is 
situated and business conducted, the whole is his homestead and ex- 
empt. 

Approved in Baldwin v. Tillery, 62 Miss. 381, value must not suc- 
ceed limit prescribed by statute. 

Overruled in Iken v. Olenick, 42 Tex. 202, homestead must be eon- 
fined to use as residence; Inge v. Cain, 65 Tex. 78, homestead must 
be place of residence and not of business. And see notes, 2 Woods, 
662; 70 Am. Dec. 351, 352. 

30 Tez. 444-446, JENE1N8 ▼. STATE. 

Application for Conttnuance not Made according to statute is ad- 
dressed to discretion of court. 

Reaffirmed in Van Brown v. State, 34 Tex. 188. 

Stolen Property Fonnd in Defendant's Possession three hours after 
stolen, he is prima facie guilty, and verdict will not be disturbed 
unless presumption is rebutted. 

Approved in Martinez v. State, 41 Tex. 165, and Roberts t. State, 
17 Tex. Ap. 87, reaffirming rule. 



167 NOTES ON TEXAS BEPOBTS. 30 Tex. 446-475 

X Ttt. 446-447, BENNETT ▼. STATE. 

mular SoTen Hundred and Twenty-second Article of the Code of 
CrimiBal Procedure, recognizance must describe offense and bind de- 
fendant to appear before district court to abide judgment of appellate 
«oiirt. 

Approved in Buie v. State, 1 Tex. Ap. 61, reaffirming rule. And 
see note, 67 Am. St. Bep. 198. 

SO TttL 44^-450, CIiABK v. STATE. 

Wliere Bridence Is Conflicting it is error for court not to instruct 
IB a rape ease that if party's consent was obtained by promises the 
prisoner cannot be guilty. 

Beaifirmed in Williams v. State, 1 Tex. Ap. 95. 

Miscellaneous. — Cornelius v. State, 13 Tex. Ap. 353, and O'Bourke 
▼. State, 8 Tex. Ap. 71, cited to point that indictment for rape need 
only mn in words of statute. And see note, 80 Am. Dec. 366. 

SO Tex. 450-451, ISAA08 ▼. STATE. 

To Coiutitate Theft, one of the material considerations respecting 
the "taking" is whether the act was done animo furandi. 

Approved in Bray v. State, 41 Tex. 205, Veras v. State, 41 Tex. 
528, and Loza t. State, 1 Tex. Ap. 491, all reaffirming rule; Ains- 
worth y. State, 11 Tex. Ap. 344, defendant is entitled to instruc- 
tion showing difference between trespass and theft; Loza v. State, 
1 Tex. Ap. 492, question whether taking of a horse was for tem- 
porary use or with intent to make property of it should be sub- 
mitted to the jury. And see note, 57 Am. Dec. 274. 

90 Tex. 451-453, DUGOAN ▼. KOELL. 

No Appeal Is Fending In the Absence of a Bond by anyone except 
the sQceession of an estate. 

Approved in Wolff v. Garter, 33 Tex. 700, administrator may appeal 
withoot bonds for costa. 

SO Tex. 464-466, PATTERSON T. HALL. 

A Judgment for Costs is not such a final judgment as to give 
Eopreme court jurisdiction. 

Cited in 60 Am. Dec. 434, note. 

SO Tex. 466-475, ASE ▼. STATE. 

Confession of One Joint Defendant is not admissible against 
others. 

Beaffirmed in Beavis v. State, 6 Wyo. 251, 44 Pac. 65. 

In Felony Cases Appellate Court will not hesitate to set aside 
Terdiet not sustained by the evidence. 

Reaffirmed in Brown v. State, 38 Tex. 486. 

Under Articles 607 and 608 of the Penal Code, murder committed 
hj poison, starving, torture, or with express malice, or in perpetra- 
tion of rape, robbery, or burglary, is murder in the first degree. 

Approved in Hamby v. State, 36 Tex. 529, reaffirming rule; Sim- 
merman V. State, 14 Neb. 570, 17 N. W. 116, murder in first degree 
must be deliberate and premeditated. And see notes, 18 Am. Dec. 
776; 63 L. B. A. 356. 

Perwa Who, with Deliberate Mind and former design, kills another, 
which formed design is evidenced by lying in wait, antecedent 
menaces, or former grudges, is guilty of murder in first degree. 



30 Tex. 475-499 NOTES ON TEXAS REPORTS. 168 

Approved in Moore v. State, 31 Tex. 573, and Lindsay v. State, 36 
Tex. 344, reaffirming rule; Spears v. State (Tex. Cr.), 56 S. W. 349, 
holding instruction that express malice may occur where mind is 
ruffled was improper. And see notes, 18 Am. Dec. 781, 784; 78 Am. 
Dec. 529. 

Miscellaneous. — Ake v. State, 31 Tex. 416, referred to for facts. 

30 Tex. 47&-478, CHANBLEB ▼, WESTPALL. 

Liability of Indorser in Blank is that of guarantor and gives 
holder implied power to write over name absolute terms of guar- 
anty. 

Approved in Miller ▼. Ridgely, 22 Fed. 899, reaffirming rule; 
Heidenheimer v. Blumenkron, 56 Tex. 312, applying principle to 
liability of indorser at inception; Smith v. Caro, 9 Or. 281, parol 
evidence not admissible to vary liability of indorser after maturity. 
And see 60 Am. Dec. 185, note. 

To Bind Indorser Either Before or After maturity, suit must be 
brought at first term of court, or to the second at most, and cause 
shown for not bringing at first term. 

Cited in 12 Am. Dec, 611, note; 46 L. R. A. 806, note. 

Where One Is Charged as Guarantor, parol admissible to negative 
action. 

Distinguished in Barringer v. Wilson (Tex. Civ.), 81 S. W. 534, 
where from note it appears that one is indorser, parol inadmissible 
to show he is surety. 

30 Tex. 479>488, SAWYEB ▼. DUIVANY. 

A Carrier Is Liable for the immediate results caused by the em- 
ployee's carelessness, and cannot plead passenger's physical disability. 

Approved in St. Louis etc. Ry. v. Ferguson, 26 Tex. Civ. 464, 
64 S. W. 799, reaffirming rule; Schafer v. Gilmer, 13 Nev. 338, owner 
of stage liable for negligence of driver; Shenandoah Valley R. R. 
V. Moose, 83 Ya. 833, 3 S. E. 799, carriers cannot plead infirm condi- 
tion of passenger. 

Carrier is Liable for Injuries due to upsetting of stage by drunken 
driver, causing miscarriage by female passenger. 

See note, 32 L. R. A. 143. 

SO Tex. 488-493, CALLAHAN V. STATE. 

It is not Error for Court to set aside order of continuance. 

Approved in Brown v. State, 3 Tex. Ap. 309, order of continu- 
ance may be set aside without consent of defendant. 

30 Tex. 494-497, MADDOX v. HUMPHRIES. 

Filing of Petition Does not Arrest Statute of Limitation, and suit 
is not properly commenced until issuance of citation by clerk. 

Approved in Tribby v. Wokee, 74 Tex. 143, 11 S. W. 1090, East 
Texas etc. Co. v. Templeton, 3 Tex. Ap. Civ. 495, and Davidson v. 
Southern Pac. Co., 44 Fed. 478, all reaffirming rule; Jones v. Andrews, 
72 Tex. 15, 9 S. W. 170, plaintiff not directing delay cannot be 
charged; Wilkinson v. Elliott, 43 Kan. 597, 23 Pac. 616, where party 
retains petition statute is not stopped. 

30 Tex. 497-499, McCLELLAND v. SLANTEB. 

Statute of 1848 Requiring Suit to be brought to fix liability of 
indorser is not a statute of limitation, and not affected by act of 
1856. 



m NOTES ON TEXAS REPORTS. 30 Tex. 503-528 

Approved in Chandler v. Westfall, 30 Tex. 478, and Grigsby ▼. 
Peak, 57 Tex, 145, reaffirming rule. 

Indoraer is Beleaaed where suit not commenced at first term and 
no excase given. 

See note, 18 L. R. A. (n. s.) 542. 

30 Tta. 508--508, THE BOAD OASES. 

30 Tex. 503-505, STATE ▼. FORREST. 

It is Snfflcieiit to Oharge that defendant was overseer of a certain 
specife precinct of designated public road in county, and said road 
was oot of repair twenty days at one time. 

Approved in Nichols v. State, 30 Tex. 516, not material that in- 
dictment should state presentation in a particular county. 

SO Tex. 608^15, THE. BUTOHEB OASEa 

30 Tex. 508-510, SCHUTZE ▼. STATE. 

In an Indictment Under Statute regulating butchering of cattle 
it is only necessary to charge substantially in terms of statute. 

Approved in State v. Dietz, 30 Tex. 513, act of 1866 regulating 
sale of animal only necessary to charge substantially. 

80 Tex. 511-513, STATE ▼. DEITZ. 

Bvny Law Enacted by Legislature shall embrace but one object, 
and shall be expressed in the title. 

Approved in Evans v. Sharp, 29 Wis. 573, reaffirming rule. 

SO Tax. 515-520, THE ESTBAY CASES. 

30 Tex. 515-516, NICHOLS ▼. STATE. 

Eatray Laws were Suspended by Acts of April and December, 
1883, until six months after peace should be concluded. 

Approved in Carpenter v. Lippitt, 77 Mo. 246, when singular number 
is named statute should be construed to include plural. 

SO Tex. 518-520, STATE ▼. BflESCHAC. 

It is Essential in Indictment to apprise defendant of particular 
▼iolation of law which he is called upon to answer. 

Approved in Riviere v. State, 7 Tex. Ap. 57, omission of words 
"withoot complying with the law regulating estrays" is fatal. 

SO Tex. 521-528, 8X7NDAY-LAW CASES. 

SO Tex. 521-523, BENNETT ▼. STATE. 

Every Intendment mnst be Indulged in favor of authority for the 
action of court below, and until contrary shown it will be presumed. 

BeafBrmed in Allen v. State, 34 Tex. 233. 

Verdict of a Jxuy Finding Defendants Gnilty, and assessing fine 
is a several finding and not joint. 

Approved in Bennett v. State, 30 Tex. 524, reaffirming rule. 

Distinguished in Flynn v. State, 8 Tex. Ap. 399, and Allen v. 
State, 34 Tex. 234, a joint verdict is erroneous. 

Miscellaneous. — Cited in separate opinion of Walker, J., in Hous- 
ton etc. B. B. V. Kuechler, 36 Tex. 418, to the point that military 
eommanders only refused to enforce laws made in aid of the rebellion. 

SO Tex. 524-528, EL8NEB ▼. STATE. 

Tbe Object of the Legislature was to forbid all secular employ- 
ment on the Sabbath. 



30 Tex. 529-576 NOTES ON TEXAS REPORTS, 170 

Cited in Bohl v. State, 3 Tex. Ap. 685, on point that Sunday 
law is not local nor repugnant to guaranty of equal rights; State 
v. Judge, 39 La. Ann. 140, 1 So. 443, enforcement of compulsory 
day of rest is a legitimate exercise of police power. 

Miscellaneous. — Separate opinion of Walker, J.^ in Houston etc. 
R. R. V. Kuechler, 36 Tex. 418, on point that military commanders 
refused to enforce only prior laws in aid of rebellion. 

30 Tex. 529-570, 98 Am. Dec. 481, P0BTI8 ▼. HILL. 

InstrumentB Admitted and Acted upon cannot be denied unless 
admissions made by mistake or fraud. 

Approved in Saunders ▼. Richard, 35 Fla. 44, 16 So. 684, continued 
acquiescence estops party. And see note, 65 Am. Dec. 109. 

To Pass Title It is Unnecessary to register deed; that only protects 
creditors and subsequent purchasers. 

Cited in notes 3 Am. St. Rep. 319; 6 Am. St. Rep. 765; 56 Am. 
St. Rep. 859; 82 Am. St. Rep. 398. 

Party cannot Oontradlct and Falsify his own solemn admissions 
made before a judicial tribunal. 

Approved in Galveston etc. Ry. ▼. Eckles, 25 Tex. Civ. 183, 60 S. W. 
832, reaffirming rule. And see note, 4 Am. St. Rep. 273. 

Fraud or Malversation of Public Officer will not be presumed in 
order to defeat legal title. 

Approved in Atkinson v. Ward, 61 Tex. 387, reaffirming rule. 

A Court in Order to Defeat a recovery will not regard a possible, 
though doubtful, equity in third party. 

Approved in Lindsay v. Jaffray, 55 Tex. 634, and Steele v. Steele, 
2 Tex. Ap. Civ. 301, reaffirming rule; Caudle v. Williams (Tex. Civ.), 
51 S. W. 561, holding bond for sale of headright, not acted on, was 
not pleadable as outstanding title in trespass to try title. 

30 Tex. 570-^74, WALKER ▼. STBINGFELLOW. 

During Bfarriage Husband has Sole Management of wife's separate 
property, but upon separation of parties, he not contributing to her 
maintenance, she may sell without his concurrence. 

Approved in Heidenheimer v. Thomas, 63 Tex. 290, abandoned by 
husband, wife may act as feme sole; Bennett v. Montgomery, 3 Tex. 
Civ. 226, 22 S. W. 117, when separation final, wife has full power to 
act over her separate estate; Noel v. Clark, 25 Tex. Civ. 143, 60 S. 
W. 359, married woman can only bind herself when within statute; 
Cason V. Laney (Tex. Civ.), 27 S. W. 421, but denying power of wife 
of insane person to have judgment entered as to community property. 

Distinguished in Sorrel v. Clayton, 42 Tex. 192, husband joining 
army is not such a desertion as to enable wife to act as feme sole. 

Where Husband Fails to Provide for wife, she may sue in equity for 
support out of his property. 

Approved in Dole v. Gear, 14 Haw. 557, upholding equity jurisdic- 
tion to decree maintenance to wife independently of suit for divorce 
or separation. 

30 Tex. 574-576, HUDSON'S ADMINISTBATOB ▼. FABBIS. 

Contract to Locate Headrifi^t Certificate on shares is not assignable. 
See note, 23 L. B. A. (n. s.) 224« 



171 NOTES ON TEXAS REPORTS. 30 Tex. 576-613 

30 Tez. 576-690, SABBZEGO ▼. WHITE. 

If the Intention to Betnm Exists, no change of domicile is worked 
by long absence. 

Approved in Benavides v. Gussett, 8 Tex. Civ. 200, 28 S. W. 113, 
retffinning rule. 

Alien Children tad Heirs of Deceased Citizen dying intestate may 
take estate and have a reasonable time to take possession. 

Beaffirmed in Wiederanders v. State, 64 Tex. 142. See note, 31 L. 
S. A. 179. 

An Alien to Whom Land is devised has nine years to become a citi- 
zen and take possession before it shall be declared forfeited. 

Approved in Settegast v. Schrimpf, 35 Tex. 342, reaffirming rule; 
Kireher v. Murray, 54 Fed. 621, and Andrews v. Spear, 48 Tex. 580, 
(ommon-law rule that an alien cannot cast descent does not prevail 
in Texas; Hanrick v. Hanrick, 54 Tex. 113, state must bring proceed- 
ing to declare forfeiture; Ortiz v. De Benavides, 61 Tex. 63, alien 
claiming through alien who died in 1816 may maintain action; Airhart 
v. Massien, 98 U. S. 497, 499, 25 L. 213, alien cannot be devested until 
proeeedingB for forfeiture brought; Hanrick v. Patrick, 119 U. S. 169, 
7 Sop. Ct. Rep. 153, 30 L. 396, state must take proceedings to declare 
a forfeiture. See note, 31 L. R. A. 105. 

MlMellaneous. — Settegast v. Schrimpf, 35 Tex. 341, cited arguendo 
while citing conflict of authority. 

30 Tex. 591-596, McBIASTEBS ▼. MILLS. 

The Statute of Limitation is as obligatory in equity cases as in law. 

Cited in note, 60 Am. Dec. 213. 

The Period of Limitation cannot be extended by adding one dis- 
ability with another. 

Approved in Brown v. Meador, 1 Posey TJ. C. 287, Miller v. Texas 
etf. Ry., 132 U. S. 693, 10 Sup. Ct. Rep. 216, 33 L. 501, and Stanley v. 
Sfhwalby, 162 U. 8. 273, 16 Sup. Ct. Rep. 762, 40 L. 960, all reaffirm- 
ing rule. And see note, 58 Am. Dec. 145. 

30 Tex. 596-604, SECBE8T ▼. JONES. 

Covenant to Sell is not a Present Sale; it gives vendor right to re- 
Miad on nonpayment of price, but, if he does not so elect, payment 
at any time perfects title. It is for jury to find fact as to such pay- 
taent. 

Reaffirmed in Keys v. Mason, 44 Tex. 144. Approved in Peterson 
▼■ MeCauley (Tex. Civ.), 25 S. W. 828, holding instrument a bond for 
title and not a present conveyance. See note, 60 Am. Dec. 244. 

^ Recording of a Deed after suit brought is sufficient. 

Distinguished in Russell v. Farquhar, 55 Tex. 363, certified copy of 
judgment not sufficient. 

Verdict Finding Facts on which amount of judgment may be calcu- 
lAted is sufficient. 

Approved in International etc. R. Co. v. McGehee (Tex. Civ.), 81 
8. W. 805, verdict in action for damages for certain sum with interest 
at certain rate from specified date is sufficiently certain. 

30 Tex. 604-613, BAS8ETT ▼. MESSKEB. 

Extending of Corporate Limits cannot work a change of country 
homestead to a town homestead. 

Approved in Nolan v. Reed, 38 Tex. 428, Posey v. Bass, 77 Tex. 514, 
14 8. W. 157, Foust ▼. Sanger, 13 Tex. Civ. 413, 35 S. W. 405, and 



30 Tex. 617-669 NOTES ON TEXAS REPORTS. 172 

Barber v. Rorabeck, 36 Mich. 401, all reaffirming rule; Baldwin v. Rob- 
inson, 39 Minn. 248, 39 N. W. 323, cannot be reduced except i^y home- 
stead claimant; Galligher v. Smiley, 28 Neb. 195, 26 Am. St. Rep. 324^ 
44 N. W. 189, vested rights cannot be changed; Neeley v. Case (Tex. 
Civ.), 32 S. W. 786, holding extension of town limits cannot affect 
rural homestead. And see notes, 87 Am. Dec. 467; 2 Woods, 662. 

Cited in Chambers v. Perry, 47 Ark. 403, 1 S. W. 701, arguendo, 
while noting conflict among the authorities in different states. 

Nonresident of a Town cannot give consent to incorporation, and to 
effect change on homestead consent of wife must be given in manner 
required by statute. 

Approved in Kent v. Beaty, 40 Tex. 441, consent is necessary to 
change character of homestead. 

30 Tex. 617-630, JAMES ▼. COBKES. 

Administrators are not Entitled to Oommlssion on money not re- 
ceived or paid out. 

Reaffirmed in Watts v. Downs, 36 Tex. 117. 

Overruled in Huddleston v. Kempner, 87 Tex. 374, 28 S. W. 937, 
when judgment creditor is purchaser and does not actually pay. 

30 Tex. 633-^37, 98 Am. Dec. 492, HOFFMAN ▼. NEUHAUS. 

Children Arriving at Majority or Leaving Family cannot claim par- 
tition of homestead as against mother or minor children. 

Approved in Kirksey v. Cole, 47 Ark. 510, 1 S. W. 780, child arriv- 
ing at majority cannot claim partition against mother and minor 
child; Hoppe v. Hoppe, 104 Cal. 101, 37 Pac. 895, homestead must re- 
main intact until youngest child attains majority; Voelz v, Voelz, 88 
Wis. 464, 60 N. W. 708, homestead not subject to partition. And see 
notes, 36 Am. St. Rep. 578; 4 L. R. A. (n. s.) 392; 56 L. R. A. 53, 56. 

As Long as a Family Head Exists and occupies homestead, it cannot 
be interfered with for any other purpose. 

Approved in Burns v. Jones, 37 Tex. 51, no constituent member of 
family remaining, exemption ceases. And see notes, 99 Am. Dec. 663; 
22 Am. St. Rep. 223; 4 L. R. A. (n. s.) 795. 

Minor Children, on Arriving at Majority, can acquire homestead of 
their own. 

Reaffirmed in Kirksey v. Cole, 47 Ark. 509, 1 S. W. 780. 

30 Tex. 637-643, JONES v. BABKETT. 

When the Orandparents are the Nearest living relations, the de- 
ceased's estate is divided into two moieties. 

Approved in McKinney v. Abbott, 49 Tex. 377, Young v. Gray, 60 
Tex. 544, and Estes v. Nicholson, 39 Fla. 768, 23 So. 492, all reaffirm- 
ing rule. 

30 Tex. 644-669, MAOEE v. CHADOIN. 

Party is not to be Charged for the mistake of a public officer. 

Approved in Bassett v. Brewer, 74 Tex. 556, 12 8. W. 230, party not 
responsible for failure of officer to perform duty. 

If a Former Recovery is Belied on, it must be shown that the trial 
was upon merits, and involved and determined the subject matter. 

Approved in Philipowski v. Spencer, 63 Tex. 608, reaffirming rule. 

Judicial Notice is Taken of matters of public history. 

See note, 124 Am. St. Rep. 35. 



173 NOTES ON TEXAS EEPORTS. 30 Tex. 669-712 

Miscellaneous. — Magee v. Chadoin, 44 Tex. 490, another phase of 
same ease. 

SO Tex. 66»>683, SMITH ▼. HABBEBT. 

Under Act of 1862, as Between merchant and merchant, three days' 
grace was allowed on all bills of exchange and promissory notes as- 
signable and negotiable by law. 

Reaffirmed in Smith v. Dunlavy, 31 Tex. 700. 

Under Act of 1863 (Stay Law), it was not necessary to bring suit 
to fix liability of maker or acceptor. 

Approved in Stratton v. Johnston, 36 Tex. 93, suit instituted at close 
of war ia sufficient to fix liability. * 

Note Which Matured on November 16, 1861, should have been pro- 
tested or sued on at first term of provisional court of 1865, in order 
to hold indorser. 

Approved in Stratton v. Johnston, 36 Tex. 91, and McGary v. Mc- 
Kenzie, 38 Tex. 216, both reaffirming rule; Christian v. Austin, 36 Tex. 
541, vendor accepting payment in indorsed note does not waive ven- 
dor's lien if maker insolvent. See note, 18 L. B. A. (n. s.) 543. 

It was Within the Power of the United States government to estab- 
lish provisional government in Texas after overthrow of local govern - 
nent. 

Seaffirmed in Houston etc. B. B. v. KueeUer, 36 Tex. 418. 

30 Tez. 684-688, OEBSGK ▼. CCONNELL. 

An Injonction, Founded upon Motion that stay law entitled debtor, 
who executed deed of trust, to a perpetual injunction was properly 
dissolved. 

Approved in Gault v. Goldthwaite, 34 Tex. 110, party enjoining trus- 
tee from selling land conveyed for purpose of paying grantor's debts. 

30 Tsz. 689-715, 98 Am. Dec. 494, THE 8EQUESTBATI0K CASES. 

30 Tta. 689-712, ItUTEB V. HUNTEB. 

Constitution of United States, Tenth Section, article 1, declares that 
BO state shall pass any law impairing the obligation of a contract. 

Cited in notes, 49 Am. St. Rep. 277, and 3 Am. St. Bep. 123. 

The United States (Government has Political Authority over the 
states of the Confederacy. 

Cited in note, 98 Am. Dec. 464. 

The Stay Laws were Intended in Spirit to aid the rebellion, and 
were unconstitutional, null, and void. 

Approved in Houston etc. R. R. v. Kuechler, 36 Tex. 440, Grace v. 
Gamett, 38 Tex. 159, Black v. Epperson, 40 Tex, 185, and Cravens v. 
Wilson, 48 Tex. 338, all reaffirming rule; Houston etc. R. R. v. Kuech- 
ler, 36 Tex. 418, applying principle to mandamus proceedings. See 
note, 1 L. B. A. 359. 

Payment to Confederate States Beceiver, under garnishment and de- 
cree of district court of those states, is no bar to recovery of debt. 

Approved in Canfield v. Hunter, 30 Tex. 712, Levison v. Norris, 30 
T«^. 714, Levison v. Krohne, 30 Tex. 715, McCormick v. Arnspiger, 
38 Tex. 575, and Vance v. Burtes, 39 Tex. 91, all reaffirming rule. 

I>i8tinguished in Wilkinson v. Williams, 35 Tex. 183, bailee need 
only QBe ordinary diligence, and is not liable when property taken by 
a vis major. 



30 Tex. 732-748 NOTES ON TEXAS REPORTS. 174 

The United States baa Never Acknowledged that any citizens were 
alien enemies to each other during the rebellion. 
Cited in note, 98 Am. Dec. 458. 

30 Tex. 712, OANFIELD ▼. HUNTER. 

Oompolsory Payment to Confederate States Receiver nnder process 
of garnishment is no bar to the recovery of the debt. 

Cited in notes, 6 Am. Dec. 541; 98 Am. Dec. 511. 

30 Tex. 713, OULRREATH v. HUNTER. 

Compulsory Payment to Confederate States Receiver nnder process 
of garnishment is no bar to the recovery of the debt. 

Cited in note, 98 Am. Dec. 511. 

30 Tex. 713-714, LEVISON v. NORRIS. 

A Note Taken from PlaintifiTs Attorney by receiver of Confederate 
states and paid by maker constituted no defense. 

Approved in McCormick v. Arnspiger, 38 Tex. 575, note confiscated 
and paid to Confederate government no defense for debt. And see 
note, 98 Am. Dec. 511. 

30 Tex. 714-716, 1.EVISON V. KROHNE. 

Payment of Confederate States Receiver does not discharge debt. 

Reaffirmed in McCormick v. Arnspiger, 38 Tex. 575. And see note, 
98 Am. Dec. 511. 

30 Tex. 719^737, JONES v. McMAHAN. 

Under Constitution of 1866, District Courts have power to issue 
writs of injunction. 

Approved in Houston etc. R. R. v. Kuechler, 36 Tex. 418, reaffirm- 
ing rule. And see note, 74 Am. St. Rep. 152. 

Stay Law of 1866, Allowing Defendants in execution to pay judg- 
ment in installments, impairs obligation of the contract, and is void. 

Approved in Windisch v. Gussett, 30 Tex. 748, Earle v. Johnson, 31 
Tex. 165, Donley v. Tindall, 32 Tex. 63, Sessums v. Botts, 34 Tex. 348, 
Delespine v. Campbell, 52 Tex. 11, and Johnson v. Richardson, 52 Tex. 
493, all reaffirming rule; Black v. Epperson, 40 Tex. 185, Cravens v. 
Wilson, 48 Tex. 338, and Boggess v. Howard, 40 Tex. 157, judgment 
is not dormant because no execution issued during existence of stay 
law. And see note, 5 Dill. 215. 

By tbe Annexation of Texas, the constitution of the United States 
and the interpretations of the supreme court were adopted. 

Approved in Harrell v. Barnes, 34 Tex. 435, supreme court of United 
States has revisionary power of courts of Texas. 

30 Tex. 738-743, READ v. LEVY. 

Under Fifth, Tenth, and Twenty-sixth Sections of the act of 1848, 
an attachment bond will be quashed for want of scroll or seal. 

Approved in Hart v. Kanady, 33 Tex. 724, reaffirming rule. 

Overruled, Bernhard v. De Forrest, 36 Tex. 519, 520, attachment 
bond exempt under act of 1858. 

30 Tex. 744-748, WINDISCH V. GUSSETT. 

Wbere There is an Ordinary Remedy for Error, an extraordinary 
one will not obtain. 



175 NOTES ON TEXAS REPORTS. 30 Tex. 748-762 

Approved in Flournoy v. Healy, 31 Tex. 592, injunction will not lie 
if legal and ordinary remedy exists. See note, 32 L. R. A. 326. 

Injimctioii is not Proper Bemedy for error in rendering judgment for 
gold and silver coin. 
See notes, 30 L. R. A. 702; 29 L. R. A. 597. 

Injunction I>oe8 not Lie for want of legal service of process when 
there is remedy by writ of error. 
See note, 31 L. R. A. 204. 

loJimctiQn will not 1>e lasned against execution prematurely issued 
under stay law when complainant does not bring himself within terms 
of staj law. 

See note, 30 L. R. A. 137. 

30 Tex. 74&-752, JOHNSON V. STATE. 

A Verdict of Qnilty of Mnrder in first degree will not be disturbed 
if the evidence shows express malice. 

Approved in Reiser v. Smith, 71 Ala. 486, 46 Am. Rep. 346, the test 
is whether the blood had time to cool, and it is a question of law; 
State V. Tarborough, 39 Kan. 591, 18 Pac. 479, when express malice 
is proven, it is not error to fail to instruct as to degrees of murder. 

30 T0Z. 753-754, EEAVIS V. BLACKSHEAB. 

A Note Payable in the Currency of the Confederate states is void. 

Approved in Fox v. Woods, 34 Tex. 224, execution on judgment for 
Confederate money will be enjoined. 

30 Tex. 754, note, McCABTNEY ▼. OBEENWAY. 

Gonrts will not Lend Aid to the enforcement of an illegal contract, 
mnch less a treasonable executory contract. 

Approved in Ritchie ^. Sweet, 32 Tex. 337, following rule; Reavis 
V. Blaekshear, 30 Tex. 754, and Ranson v. Alexander, 31 Tex. 446, 
holding notes payable in Confederate money and bonds void. 

Distinguished in dissenting opinion in Donley v. Tindall, 32 Tex. 
59, majority upholding defense to note that it was payable in Con- 
federate money, though note on its face simply called for ''dollars." 

30 Tex. 754, note, SMITH ▼. SMITH. 

Courts will not Ijond Aid to the enforcement of an illegal contract, 
mneh less a treasonable executory contract. 
Approved in Reavis v. Blaekshear, 30 Tex. 754, Pridgeon v. Smith, 

31 Tex. 172, and Ritchie v: Sweet, 32 Tex. 337, holding note payable 
in Confederate money and bonds void. 

30 Tex. 758-760, WAIJ.AOE v. STATE. 

In Indictment for Malicioiu Mischief, under article 713 of Penal 
^ode, it is unnecessary to prove malice; it is only necessary to prove 
act wDlfully done. 

Approved in Uecker v. State, 4 Tex. Ap. 236, averment of "will- 
fully done,*' is essential to validity of complaint, information, or 
indietment. Sec note, 128 Am. St. Rep. 171. 

30 Tex. 760-762, GEISELBCAK ▼. BBOWK. 

In Ahsence of Assignment of Errors, appeal will be dismissed. 

Approved in Putnam ▼. Putnam, 3 Ariz. 187, 24 Pac. 322, following 
nil6^ 



30 Tex. 762-771 NOTES ON TEXAS BEPOETS. 176 

SO Tex. 762-771, TOUNO ▼. VAN BEKTHUY8EN. 

Koto Payable Twelve Montlu After Date, debtor baa until last 
minute of that day to pay. 

Approved in Watkins v. Willis, 58 Tex. 523, where three days' 
grace allowed, debtor has until last minute of third day. dee note, 
49 L. B. A. 208. 

If Debt is not Paid at Maturity, trustee under trust deed may 
advertise for twenty days and sell. 

Cited in notes, 19 Am. St. Bep. 281, and 19 Am. St. Bep. 296. 

All Statutory Beqolrements must be fully complied with before 
courts will pronounce sale of homestead valid. 

Approved in Welch v. Bice, 31 Tex. 691, 98 Am. Dec. 558, not- 
withstanding diflclaimer of wife in conversation, she may recover 
from purchaser knowing circumstances. 



NOTES 

ON THE 



TEXAS REPOETS 



CASES IN 31 TEXAS. 



31 TcL-1-^, TOOKE ▼. TAYI.OB. 

When Bolt Broiiglit at First Term, indorser cannot escape short 
of actual satisfaction. 
See note, 18 L. B. A. (n. s.) 542 

SI Ter. 6-10, BBEMOND ▼. MAKI.ET. 

Where Draft is Indorsed in Blank, one claiming to be its owner 
may intervene in action thereon. 

See note, 123 Am. St. Bep. 301. 

31 Ter. 10-21, PAXJIi ▼. ^AXJi. 

In Adopting Conunon Law, this etate did not adopt all English 
ftatntes not repugnant to its constitution and laws. 

S€af&rnied in Johnson v. State, 1 Tex. Ap. 339. 

Money Means What is Ooined or stamped by public authority, and 
bas its determinate value fixed by governments. 

Approved in State v. Hill, 47 Neb. 538, 66 N. W. 559, reaffirming 
rale; Boyd v. Olvey, 82 Ind. 298, holding that bank notes are not 
money in legal sense. 

31 rez. 22-29, ElKG ▼. GBET. 

Under Our Statute (PaschaPs Dig., art. 65) an umpire, whether 
selected by other arbitrators or the clerk, after being sworn is com- 
petent arbitrator. 

Approved in Alexander v. Mulhall, 1 Posey U. G. 768, holding 
sabstantial compliance with statute sufficient. 

31 Tez. 86-39, BOBEBTSON ▼. STATE. 

In Indictment for Bape under statute (PaschaPs Dig., art. 163, 
p. 398) words "female*' and "woman" are convertible. 

Approved in Gibson v. State, 17 Tex. Ap. 577, reaffirming rule; 
Whitman v. State, 17 Neb. 226, 22 N. W. 459, holding precise words 
of Btatntes not necessary. 

31 Tei. 42-44, KBNIOSBEBOEB v. WIKOATE. 

Where the Oonsideration of a Note is the performance of a con- 
tract which payer is legally bound to perform, the consideration is 
sot a legal one. 

2 Tex. Notes— 12 (177) 



31 Tex. 45-74 NOTES ON TEXAS REPORTS. 178 

Approved in Bruce t. Laing (Tex. Civ.), 64 S. W. 1023, where 
a debt is secured by a lien on debtor's property ^nd also one on 
property of surety, property of debtor should be exhausted first, 
regardless of agreement of debtor to contrary. 

31 Tex. 45-49, 98 Am. Dec. 614, BOEHL v. FLIIASANTS. 

Caveat Emptor Does not Apply to judicial sale, by administrator, 
of worthless land certificate. 

Cited in note, 98 Am. Dec. 552. 

31 Tex. 49-61, BOSE v. SAN ANTONIO ETC. B. CO. 

Promissory Note Given to BaiLoad Company, payable when cer- 
tain road is built and kept in operation) carrying passengers, for 
one year, is founded on valid consideration and binding. 

Approved in Williams v. Rogan, 59 Tex. 440, upholding subscrip- 
tion for erection of church. See note, 1 L. B. A. (n. a.) 1120. 

31 Tez. 64-65, SPENCEB V. STATE. 

Declarations of a Seducer are not admissible against woman in- 
dicted for fornication. 

Approved in Walls v. State, 125 Ind. 403, 25 N. E. 458, applying 
rule to declarations of co-conspirator; State v. Ah Lee, 18 Or. 544, 
23 Pac. 426, holding hearsay evidence inadmissible in criminal case; 
Reavis v. State, 6 Wyo. 251, 44 Pac. 65, holding declaration of con- 
federate after the fact' incompetent. 

31 Tez. 61-63, ADLEB v. STATE. 

In Misdemeanor Appeal8> defendant must be committed to jail or 
give bond. 

Approved in Crawford v. State (Tex. Cr.), 77 S. W. 8, dismissing 
criminal appeal where transcript does not contain recognizance or 
show appellant is in jail. 

31 Tex. 67-74, FAUSKA v. DAUS. 

Every Intendment Should be Indulged in favor of correct action 
of lower court until error manifestly appears. 

Reaffirmed in Tweedy v. Briggs, 31 Tex. 76. 

Objections to Manner of Taking Depositions must be in writing, 
and notice given to opposite counsel before trial (Paschal's Dig., 
art. 3742, note 851). 

Approved in Adams v. State, 19 Tex. Ap. 261, holding officer au- 
thorized to take deposition in civil case likewise qualified in crimi- 
nal case; Blake v. State, 38 Tex. Cr. 380, 43 S. W. 108, holding 
objection waived if not taken at first term of court. 

Law of Forum is Presumed to be tbe Same as that of foreign state 
and governs interest on foreign contracts unless foreign law be 
pleaded and proved* 

Approved in Kavanaugh v. Day, 10 R. I. 401, 14 Am. Rep. 694, 
holding that interest should be computed according to laws of place 
where default is made. See notes, 91 Am. St. Rep. 743; 56 L. R. A. 
306; 3 L. R. A. 53. 

The Term "Colored Men** has no legal technical significance which 
courts must judicially notice. 
See note, 124 Am. St. Rep. 45. 



m NOTES ON TEXAS EEPORTS. 31 Tex. 77-123 

SI Tez: 77-91, 98 Am. Dec. 516, VINOENT ▼. BATHER. 

Batificatioii miut be Made with full knowledge of all facts and 
drenmstanees. 

Beaffirmed in Lenoir v. Boeenthal, 1 Tex. Ap. Civ. 84; De Vaughn 
T. HeLerojy 82 Ga. 700, 10 S. E. 214. And see note, 15 Am. Bep. 
763. 

Factor is not Liable for Loss, occasioned by fault of others, which 
h« eonld neither foresee nor provide against. 

Cited in note, C Am. St. Bep. 702. 

TUIlToad Company is Besponsible in Damages for depreciation in 
yaloe of goods between date of misdirection and date of its coming 
into hands of rightful consignee. 

Cited in note, 4 Am. St. Bep. 628. 

Factor is not Uable for Loss by Fire unless guilty of negligence 
or derelict in duty. 

Cited in note, 24 Am. Dee. 155, and 30 Am. St. Bep. 507. 

SI Tex. 91-94, HAMBUK ▼. WABNECSE. 

Ho Court has Power to Order forced sale of homestead specially 
exempted therefrom by constitution. 

Approved in Griffin v. Harris, 39 Tex. Civ. 590, 88 S. W. 495, no 
title passes to purchaser of homestead under sale on order of county 
court; McCoy v. Amett, 47 Ark. 454, 2 S. W. 74, holding probable 
ale of reversionary interest in homestead void. See note, 87 Am. 
Dec. 273. 

Before Sale can be Ordered by Connty Court it must appear that 
ume is necessary to pay debts of estate. 

Cited in note, 86 Am. Dec. 653. 

Administrator cannot Become Fnrcliaser at his own sale. 

Cited in notes, 12 Am. Dec. 85, 86, and 70 Am. Dec. 374. 

Instance Wbere Becords in case on file in county court showed 
objections to order of sale made by guardian who claimed land was 
homestead of wards. 

Approved in Griffin v. Harris, 39 Tex. Civ. 591, 88 8. W. 496, 
holding county court records showed property sold under its order 
vu homestead, when guardian at time he was ordered to inventory 
it pleaded that land was homestead. 

31 Tcz. 96-104, BRANCH ▼. LOWEBT. 

Judgment of United States Circuit Conrt is lien on all land in its 
district. 

Beaffirmed in Bock Island Nat. Bk. v. Thompson, 173 HI. 604, 
64 Anu St. Bep. 144, 50 N. E. 1092. See notes, 117 Am. St. Bep. 
788; 47 L. B. A. 473. 

31 Tez: 105-116, NEAI£ ▼. SEABS. 

One Tacitly Assenting to Assumed Ownership of his property, thus 
iodacing third person to loan money upon its security, is precluded 
from asserting title to detriment of lender. 

Distinguished on facts in Hosack v. Darman, 44 Tex. 157. 

SI Tcz. 116-123, WEBBI8EIE ▼. McMANUS. 

Only Proper Evidence of X«08t or misplaced letters of administra- 
tioD is certificate of clerk, under seal of court, that letters have 
been issued. 



31 Tex. 124-139 NOTES ON TEXAS REPORTS. 180 

Distinguished under existing laws in Oatler v. Elam^ 1 Tex. Ap. 
Civ. 562. 

Before Admitting Accotint-bookB in Evidence, best evidence parties 
can procure must be exhausted, and books must be proved to be cor- 
rect and bookkeeper honest. 

Reaffirmed in Little Rock Granite Go. v. Dallas Co., 66 Fed. 525. 
See note, 52 L. R. A. 548. 

Distinguished in Cahn v Salinas, 2 Tex. Ap. Civ. 539, holding un- 
der statute account-books are admissible without supplementary oath. 

Iietten of AdmlnlBtration not stamped with revenue stamp are 
void. 

See note, 48 L. R. A. 313. 

31 Tex. 124-125, ALLEN ▼. TBAYLOE. 

Party Defaulting in Court Below, where he ought to have spoken, 
cannot be first heard on appeal. 

Approved in Buckley v. Howard, 35 Tex. 577, reaffirming rule; 
State V. Franklin, 35 Tex. 498, holding clerical error, capable of 
amendment below, not available on appeal; Pennsylvania etc. Ins. 
Co. V. Wagley (Tex. Civ.), 36 S. W. 998, clerical mistake in recital 
when petition was filed should be corrected by order of court below. 

31 Tex. 125-126, SHELLEY ▼. SOUTHWIGK. 

When Writ of Error not Sued Ont until expiration of time lim- 
ited by law, appeal will be dismissed. 

Approved in Walker v. Taul, 1 Tex. Ap. Civ. 20, holding statutes 
providing for appeals or writs of error not to be statutes of limita- 
tions. 

31 Tex. 126^129, KEBNAOHAN ▼. HALL. 

It is No Excuse, for failure to file record in time, that clerk did 
not have time to prepare it for ordinary service in one month. 

Approved in Black v. Epperson, 40 Tex. 178, holding death of at- 
torney for plaintiff in error no excuse. 

Statutes Require Forty Dasrs, after perfecting appeal or writ of 
error, to elapse before permitting record to be filed. 

Distinguished under existing law in House t. Williams, 40 Tex. 
350. 

31 Tex. 129-132, GBEEB V. STATE. 

Confession That Defendant Stole Property is inadmissible where 
under threat he shows stolen property. 

See note, 53 L. R. A. 406. 

Confession by Accused in Oustody of Officer is inadmissible unless 
he is first cautioned that it may be used against him. 

See note, 18 L. R. A. (n. s.) 792. 

31 Tex. 136-138, DAVIS v. WILSON. 

Holder of Note Taken by Him for valuable consideration may 
recover though payee indorsed it after maturity. 

See note, 46 L. R. A. 784, 785. 

31 Tex. 138-139, ISBELL ▼. STATE. 

Where Indictment was for Murder Gtoerally, verdict of guilty, 
without stating degree, does not settle what offense was committed 
and is bad. 



181 NOTES ON TEXAS BEPOBTS. 31 Tex. 143-171 

BeaiBrmed in Buster v. State, 42 Tex. 317, and Hall v. State, 31 
lU. 186, 12 So. 451. 

SI T«z. 143-146, EX FABTE WABBEN. 

By BecoDisUueUoii Laws government of Texas is provisional only, 
nibjeet in all respects to paramount authority of United States. 

Beaffirmed in Daniel v. Hutcheson, 86 Tex. 62, 22 S. W. 937. 

31 Tex. 147-151, EPFINGEB ▼. McGBEAIi. 

Deed of Ckmveyance and Mortgage to secure purchase money, exe- 
cuted simultaneously upon same property and between same parties, 
are to be taken as one. 

Cited in following notes: 50 Am. Dec. 676, and 62 Am. Dec. 511, 
512. 

81 Tex. 158-169, PACE ▼. HOUiAMAN. 

Stay Law of 1862 was Designed to suspend statutes, which ex- 
tinguished or barred right of recovery on cause of action. 

Approved in Davidson v. Peticolas, 34 Tex. 35, holding statute 
requiring suit at first term for indorser's liability not a statute of 
limitation; Standifer v. Hubbard, 39 Tex. 419, holding act requir- 
ing presentation of claims within twelve months not a statute of 
limitations. 

81 Tex. 161-162, BABBEE ▼. HAIL. 

Plea That Dollars mentioned in note mean Confederate money is 
good defense. 

Approved in Bitchie v. Sweet, 32 Tex. 337, following rule. 

31 Tex. 163-164, OBIFFITH ▼. GABY. 

Bi^rema Oonrt Judicially Knows when district court's terms are 
kdd. 

Beaffirmed in Davidson t. Peticolas, 34 Tex. 35. 

SI Tex. 166-169, THOMPSON ▼. STATE. 

Bond Taken for Mnrder is good without stating degree. 

Approved in Morris v. State, 4 Tex. Ap. 556, holding that recog- 
nizance should state offense with which principal is charged. 

When, After Entry of Judgment Nisi, death of one defendant be- 
comes known, others are not prejudiced by dismissal as to deceased. 

Beaffirmed in Douglass v. State, 26 Tex. Ap. 252, 9 S. W. 735. 

31 Tex. 169-170, 98 Am. Dec. 624, PETTY ▼. FIEISHEL. 

Where Word 'Dollars" is Omitted in body of note, but inserted 
ia figores, it is sufficient. 

Approved in Witty v. Michigan Mutual etc. Ins. Co., 123 Ind. 
414, 18 Am. St. Bep. 329, 24 N. E. 142, 8 L. B. A. 365, reaffirming 
rule; Roberts v. State, 11 Tex. Ap. 27^ applying rule to a bail bond; 
KimbaU v. Costa, 76 Vt. 294, 104 Am. St. Bep. 937, 56 Atl. 1010, 
upholding sufficiency of lien note for conditional sale where amount 
given in figures in margin but is omitted in body before word 
"doUars." See notes, 13 Am. Dec. 384, 18 Am. St. Bep. 329, and 33 
Am. St. Bep. 248. 

81 Tei. 179-171, BOBINSOK ▼. STATE. 

Indictment for Assanlt Wltli Intent to KiU should show that de- 
fendant had present ability to inflict the injury* 



31 Tex. 171-193 NOTES ON TEXAS EEPORTS. 182 

Reaffirmed in Pratt t. State, 49 Ark. 182, 4 8. W. 786; State ▼ 
Godfrey, 17 Or, 305, 11 Am. St. Rep. 833, 20 Pac. 628. 

Indictment for Aasault With Intent to EiU with a gun should state 
that gun was charged. 

Approved in Chapman v. State, 78 Ala. 466, 56 Am. Rep. 44, hold- 
ing aiming unloaded gun not an assault. 

Distinguished in Meredith v. State, 40 Tex. 481, on facts. 

Overruled in Bradberry v. State, 22 Tex. Ap. 277, 2 S. W. 593. 

31 Tez. 171-172, FBIDGEK ▼. SBHTH. 

Note Payable in Confederate money is void. 

Approved in Fox v. Woods, 34 Tex. 224, holding judgment on 
receipt for Confederate money void; Whitis v. Polk, 36 Tex. 628, 
holding contract in aid of rebellion treasonable and void. 

31 Tez. 173-174, MYERS ▼. STATE. 

Failure to Ask Ruling of Lower Court on his exceptions is waiver. 

Approved in Headley v. Obenchain, 33 Tex. 682, holding that 
when record shows no ruling of lower court on exceptions thej 
will be deemed as having been waived. 

31 Tez. 174-181, RICE ▼. RICE. 

Nothing More is Needed to Constitate Valid Marriage than mntual 
assent and capacity to contract. 

Approved in Ingersol v. Mc Willie, 9 Tex. Civ. 556, 30 S. W. 61; 
Cumby v. Henderson, 6 Tex. Civ. 526, 25 S. W. 676, holding com- 
mon-law marriage good notwithstanding statute unless statute con- 
tains express words of nullity. 

Lex Loci Contractus governs validity of marriage contract. 

Reaffirmed in Dumas v. State, 14 Tex. Ap. 468, 46 Am. Rep. 242. 

In This Case the Lower Court erroneously refused a divorce on 
the facts found, and the appellate court, in reversing,' awarded 
decree as prayed for. 

Cited in Erwin v. Erwin (Tex. Civ.), 40 S. W. 54, but remanding 
cause instead of awarding decree. 

Miscellaneous.— Moore v. Moore, 67 Tex. 294, 3 S. W. 286, another 
phase of same litigation. 

31 Tez. 184-185, STATE ▼. SMALL 

Indictment for Felony must State that offense was feloniously 
committed. 

Approved in Satchell v. State, 1 Tex. Ap. 439, holding that indict- 
ment for fraudulently disposing of mortgaged property must show 
that mortgage was unpaid at time offense was committed. See 
note, 25 Am. St. Rep. 384. 

31 Tez. 186-189, OOSS v. DYSANT. 

In Suit for Warranty of Chattel, measure of damages is eonsidera* 
tion paid with interest. 

Reaffirmed in Hoffman v. Chamberlain, 40 N. J. Eq. 666, 53 Am. 
Rep. 786, 5 Atl. 152. 

31 Tez. 190-193, 98 Am. Dec. 525, BRASHER ▼. DAVIDSON. 

On Failure to Deliver Specific Article, paid for in advance, seller 
is liable for highest market value thereof from breach to day of 
trial. 



183 NOTES ON TEXAS EEPOBTS. 31 Tex. 203-244 

Approved in Caldwell v. Dutton, 20 Tex. Civ. 372, 49 8. W. 725, 
koldiog that obligation to pay in specific articles mnst be strictl/ 
earned out or liability become a money demand. 

31 Tez. 20S-205, CBAIG ▼. CBAIO. 

Where DiYOice Granted to Wife, homestead portion of community 
property may be decreed to wife. 

See note, 23 L. B. A. 239. 

31 TO. 20&-206, THE ESTSAY OASES. 

Becognisance Charging "Using a Stray Horse^ charges no offense 
without averring that it was done "without complying with laws 
regulating estrays." 

Reaffirmed in Bivere t. State, 7 Tex. Ap. 57. 

SI Tei. 207-239, KENNEDY ▼. MOBBISON. 

Petition in Attacliment, filed under oath, must show conclusively 
a certain amount justly due. 

Approved in Wbitemore v. Wilson, 1 Posey U. C. 219, and Alt- 
meyer v. Caulfield, 37 W. Va. 858, 17 S. E. 412, both reaffirming 
rule; Shirley v. Byrnes, 34 Tex. 645, holding petition specifically 
•tating defendant's indebtedness to plaintiff sufficient. 

No Appeal will Lie from interlocutory judgment. 

Approved in Lopez y. Flores, 34 Tex. 236, and Missouri etc. By. 
V. Houston !(*lour Mills Co., 2 Tex. Ap. Civ. 506, holding that appeal 
wOl only lie from final judgment. 

Appeal from Final Judgment brings up for revision all previous 
proceedings and interlocutory judgments. 

Beaffirmed in Fulcher v. State, 38 Tex. 510. 

Where Defendant aives Special Bail in attachment and judg- 
aent is entered against him, it should be entered against all ob- 
ligors on the bond. 

Approved in Ferguson v. Glidewell, 48 Ark. 204, 2 S. W. 714, hold- 
ia^ obligors liable whether attachment rightly sued out or not. 

By Giving Special Bail in Attachment, defendant Acknowledges 
KTviee of petition. 

Approved in Bachelman v. Skinner, 46 Minn. 197, 48 N. W. 776, 
kolding that defendant giving bond to have attachment discharged 
waives right to move to dissolve attachment; Brady v. Onffroy, 37 
Wash. 489, 79 Pac. 1007, obligation of sureties on bond to release 
attachment is not dependent on regularity of attachment. 

Distinguished in Lehman y. Berden, 5 Dill. 341, Fed. Cas. 8215, 
kolding that giving bond is no waiver of right to defend against 
attachment under existing laws. See note, 123 Am. St. Bep. 1050. 

SI Tez. 239-244, 98 Am. Dec. 626, SMITH ▼. DIBBEUk 
If Qnazdiaa S^ Land of Ward without legal authority, ward 

may aeeept price or reclaim land, on attaining majority, no matter 

who may become purcbaser. 
Distinguished on facts in Butler v. Stephens, 77 Tex. 602, 14 8. 

W. 203, holding that county court has power to extend time of 

guardian's sale without written application of guardian for such 

extension. 
Qpirfliam mnst Ck^Uect Debts due wards, recover property they 

ova or claim, and account for ail rents or proUta which are, or may 

^Mcome, due their estates. 



n 



31 Tex. 245-282 NOTES ON TEXAS EEPOETS. 184 

Cited in notes, 2 Am. St. Bep. 287, and 51 Am. St. Bep. 402. 
Miscellaneous. — ^Dibrell t. Smith, 40 Tex; 448, another phase of 
game litigation. 

31 Tox. 245-252, OAY ▼. HABDEMAN. 

To Create Uen, on Bale of Personalty, agreement must be writ- 
ten and duly registered in manner prescribed by law. 

Approved in Lazarus v. Henrietta Nat. Bk., 72 Tex. 356, 10 S. 
W. 253, holding parol lien on cattle, unaccompanied by possession, 
a nullity; Berkey etc. Furniture Co. v, Sherman Hotel Co., 81 Tex. 
141, 16 S. W. 809, holding unrecorded chattel mortgage void as to 
lien creditors without notice; Prendergast v. Williamson, 6 Tex. 
Civ. 730, 26 S. W. 422, holding verbal lien good between parties 
but void against subsequent purchaser or mortgagee in good faith; 
Hastings v. Kellogg (Tex. Civ.), 36 S. W. 824, the character of the 
consideration in the agreement is immaterial, provided it is a 
valid one; Hastings v. Kellogg (Tex. Civ.), 36 S. W. 825 (on rehear- 
ing), parol reservation of title is parol chattel mortgage and invalid. 
See note, 83 Am. St. Bep. 455. 

Distinguished in Eason v. De Long, 38 Tex. Civ. 535, 86 S. W. 
349, and Crews v. Harlan, 99 Tex. 96, 87 S. W. 658, both holding 
under statute, verbal reservation of title in personalty in vendor at 
time of sale, to secure purchase price, is valid mortgage as between, 
parties. 

Possession is Necessary to create lien on sale of personalty 

See note, 83 Am. St. Bep. 452. 

31 Tex. 252-269, GOODMAN ▼. McGEHBE. 

Courts will Never Enforce illegal contracts. 

Approved in Fox v. Woods, 34 Tex. 224, holding judgment ren- 
dered on receipt for Confederate money void; Whitis v. Polk, 36^ 
Tex. 627, 628, holding contract in aid of rebellion not enforceable. 

Distinguished in Ritchie v. Sweet, 32 Tex. 337, 5 Am. Rep. 248, 
holding that party having received Confederate money in payment 
of note payable in gold cannot sue for the gold. 

31 Tex. 260-262, STATE v. McLANE. 

The Oommander of a Subdivision of a Military District had no 
power to order dismissal of pending criminal proceedings; neither 
had the district judge. Such power belonged only to the prose- 
cuting attorney. 

Approved in TuUis v. State (Tex. Cr.), 52 S. W. 84, holding prose- 
cutor's agreement to dismiss not binding unless confirmed by judge. 
See note, 35 L. R. A, 708. 

31 Tex. 266-276^ 98 Am. Dec. 529, MIJLIiEB y. LANDA. 

When Stream is Boundary Between Biparian owners, middle of 
stream is lineal partition, unless otherwise directed by express terms 
of original grant. 

See notes, 21 Am. St. Rep. 839; 42 L. R. A. 503. 

31 Tez. 277-282, TABDE ▼. BENSEMAN. 

County Assessor may be Informer in qui tam action as well as 
another. 

Distinguished in Gibbs v. State, 39 Tex. Cr. 477, 46 S. W. 646, 
holding that all prosecutions for offeuses must run in name of state* 



185 NOTES ON TEXAS EEPORTS. 31 Tex. 283-332 

31 Tex. 283-284, VIOLAND v. ^AXEL. 

Citation Beaniring Defendant to Appear at time that had elapsed 
htoTt it was issued will not support default judgment. 

Aj^roved in Jenkins v. McNeese, 34 Tex. 190, holding bond for 
delirery of property on day already passed void; Hunt v. Schrieb, 
37 Tex. 632, applying rule to citation in error requiring defendant 
to appear at term of court not known to laws of state; Stewart v. 
Arlege, 1 Tex. Ap. Civ. 361, reversing default judgment on account 
of defect in service of process. 

31 Tez. 287-298, NAPIEB V. HODGES. 

Legislature has Power to assess tax for benefit of county treasury 
aod one for benefit of state treasury at same time, on business of 
retailing liquor. 

Approved in Youngblood v. Sexton, 32 Mich. 425, 20 Am. Re]). 
667, State v. Bennett, 19 Neb. 204, 205, 26 N. W. 721, both holding 
that business carried on under license may be taxed. 

Bepeal by Implicaticm is not favored when possible to reconcile 
two acts. 

Reaffirmed in Walker v. State, 7 Tex. Ap. 257, and Lane v. Com- 
missioners, 6 Mont. 476, 13 Pac. 137. 

Two Statutes, in Pari Materia^ passed in same session, must be 
(OBfidered as one, and construed together. 

Reaffirmed in Walker v. State, 7 Tex. Ap. 260. 

SI Tex. 298-302, SIMPSON y. SEILY. 

Under Article 1309 (Paschal's Dig.), only claims for "money" are 
required to be sworn to, and mortgage is not such claim. 

Approved in Cannon v. McDaniel, 46 Tex. 308, holding presenta- 
tion to administrator of notes alone sufficient to authorize suit on 
mortgage. See note, 130 Am. St. Kep. 319. 

SI Tez. 304-322, HABT ▼. MILLa 

Supreme Conrt may Admit Proof by affidavit to contract tran- 
Kript. 

Reaffirmed in Bowlett v. Williamson, 18^ Tex. Civ. 29, 44 S. W. 
62j. 

Proof Aliunde is not Admissible to show that lower court has no 
jurisdiction. 

Reaffirmed in Chrisman v. Graham, 51 Tex. 456. 

Distinguished in Boggess v. Harris, 90 Tex. 477, 39 S. W. 566, 
holding that district court may alter record after appeal taken. 

SI Tex. 322-332, CLABK ▼. WILOOX. 

Betom of Sheriff need not follow language of statute. 

Reaffirmed in Graves v. Drane, 66 Tex. 659, 1 S. W. 906. See 
tootes, 73 Am. Dec. 255; 99 Am. Dec. 124. 

Bole of DsasuLges on Dissolution of Attachment^ not sued out 
maliciously, is actual damage sustained. 

Approved in Harris v. Finberg, 46 Tex. 96, holding value of de- 
fendant's time while attending court or incidental expenses not 
proper element of actual damage. 

Clerk is Liable Wlien His Failure to Copy return of sheriff on sum- 
mons causes reversal of judgment. 

8ee note, 95 Am. St. Bep. 91. 



31 Tex. 332-356 . NOTES ON TEXAS EEPOBTS. 180 

31 Tex. 332-334, JOHNSTON ▼. JEFFERSON. 

In Suit on Note Witli Flea Non Est Factum not sworn to, charge 
to jury upon execution of note is erroneous. 

Approved in Piedmont v. Fitzgerald, 1 Tex. Ap. Civ. 787, holding 
that plea in abatement must be sworn to. 

31 Tez. 334-341, 98 Am. Dec 634, EMERSON v. NAVABBO. 

Mistakes, Accidents, and Frauds are subjects of equitable juris- 
diction. 

Cited in notee, 2 Am. St. Bep. 648; 55 Am. St. Bep. 505, 516. 

Mistakes of Material Fact are always relievable in equity. 

Approved in Ainsfield v. More, 30 Neb. 405, 46 N. W. 835, hold- 
ing that statute of limitations runs against action to correct mis- 
take from time of discovery of mistake. See notes, 29 Am. St. Bep. 
181, and 35 Am. St. Bep. 495. 

Mistakes of Iaw are not generally suificient grounds for equitable 
relief. 

Approved in Ely-Walker Dry Goods v. Mansur, 87 Mo. Ap. 117, 
affidavit contained in bill of exceptions taken at prior trial is 
inadmissible. See notes, 100 Am. Dec. 187; 2 Am. St. Bep. 67; 12 
Am. St. Bep. 130; 55 Am. St. Bep. 498. 

Deposition Taken by Agreement in former suit between same par- 
ties in relation to identical subject matter is admissible. 

Distinguished in People's Nat. Bank v. Mulkey, 94 Tex. 397, 398, 
60 S. W. 754, holding deposition taken in suit on collateral note not 
admissible in subsequent distinct suit on the collateral. 

Limitations Bun from Time mistake discovered and not from date 
of deed, where suit was for overpayment due to deficit in tract sold 
as specific amount. 

See note, 11 L. B. A. (n. s.) 1196. 

31 Tex. 341-343, BENDEB v. FRYOR. 

Parol Evidence is Admissible to Explain ambiguity in note or 
writing; e. g., to explain words in note, "being balance purchase 
money on the Merriweather land." 

Approved in Shaw v. Parvin, 1 Tex. Ap. Civ. 154, reaffirming 
rule; Willis v. Bank of Daingerfield (Tex. Civ.), 30 S. W. 83, leaving 
to jury question not covered by writing. 

31 Tez. 344-356, BARRETT v. BARRETT. 

Heirs are Necessary Parties to action to try title to lands of 
intestate. 

Approved in Loller v. Frost, 38 Tex. 212, following rule. 

Overruled in Egery v. Power, 38 Tex. 381, Gunter v. Fox, 51 
Tex. 388, Boggess v. Brownson, 59 Tex. 421, Budd v. Johnson, 60 
Tex. 92, and Lawson v. Kelley, 82 Tex. 462, 17 S. W. 717, all holding 
heirs not necessary parties; Egery v. Power, 38 Tex. 380, holding 
that if appellee die pending appeal case may proceed to judgment 
on making executor party without joining heirs. 

Creditor cannot Object to Sale by debtor before his lien attached 
to it. 

Beaffirmed in Keller y. Smalley, 63 Tex. 519. 

It is not Necessary to Validity of Deeds that they should be regis- 
tered. 

Cited in note, 86 Am. Dec. 670. 



187 NOTES ON TEXAS REPORTS. 31 Tex. 357-371 

81 Tez. 357-358, HALBEBT ▼. STATE. 

In Trial for Murder, affidavit for continuance not showing fact«i 
in justification nor such as would reduce degree of crime is insuf- 
ficient. 

Approved in Webb v. State, 5 Tex. Ap. 606, applying rule to 
affidavit showing extraordinary actions of accused but not indi- 
cating insanity. 

31 Tez. 359-362, WALLEBATH ▼. KABF. 

Constitntioa of 1886 gives district court power to issue all writs 
necessary to supervision over inferior tribunals. 
See note^ 51 L. R. A. 68. 

31 Tez. 362-366^ 98 Am. Dec 540, TOLLE v. OOBBETH. 

Wlien Blill Owner is Damaged by lawful use of water for irriga- 
tion, it is damnum absque injuria. 

Approved in Mud Creek Irrigation etc. Co. v. Vivian, 74 Tex. 
174, 11 S. W. 1079, Barrett v. Metcalfe, 12 Tex. Civ. 253, 254, 33 
S. W. 760, both holding that upper owner may exhaust water by 
irrigation to injury of lower owners. See valuable notes in 79 Am. 
Dec. 642> 643; 84 Am. Dec. 640; 3 Am. St. Rep. 615; 3 Am. St. Rep. 
797; 33 Am. St. Rep. 615; 41 L. R. A. 742. 

Criticised in Fleming v. Davis, 37 Tex. 194, holding that owner 
of head spring cannot exhaust water flowing from it by irrigation 
to injury of proprietors lower down stream. 

Distinguished in Watkins Land Co. v. Clements, 98 Tex. 586, 587, 
107 Am. St. Rep. 653, 86 S. W. 736, 70 L. R. A. 964, reversing Clem- 
ents V. Watkins Land etc. Co., 36 Tex. Civ. 347, 348, 87 S. W. 670, 
and holding rule that use of water for irrigation must be reasonable 
with reference to rights of other riparian proprietors applies, though 
lands in arid region; Lonsdale Co. v. City of Woonsocket, 25 R. I. 
431, 56 Atl. 449, city which is riparian owner cannot, as against 
iower riparian owner, diminish amount of water by abstracting it 
for city water supply. 

31 Tez. 366-367, FBOI8 ▼. MAYFIEIJ>. 

Plaintiff has a Bight to Take a voluntary nonsuit where defend- 
ant's plea in reconvention does not state a cause of action. 

Cited in Burford v. Burford (Tex. Civ.), 40 S. W. 603, but holding 
proper cross-bill will not fall in suit for partition where plaintiff 
takes voluntary nonsuit. 

31 Tez. 368-371, BATTLE ▼. EDDY. 

All Defendants Should be Named in writ, even though copy of 
petition, which names them, should be served. 

Reaffirmed in Delaware etc. Construction Co. v. Farmers' etc. Nat. 
Bank, 33 Tex. Civ. 659, 77 S. W. 629, Rodgers v. Green, 33 Tex. 662, 
Crosby v. Lum, 35 Tex. 41, Bendy v. Boyce, 37 Tex. 444, and Owsley 
V. Paris Exchange Bank, 1 Posey U. C. 96. Approved in Delaware 
etc. Construction Co. v. Farmers' etc. Nat. Bank, 33 Tex. Civ. 660, 
77 S. W. 629, citation accompanied by certified copy of petition re- 
ferring to such copy for statement of nature of cause of action does 
not support default judgment. 

It ia No Objection That Waiver of Service was dated prior to 
filing of petition. 



31 Tex. 371-409 NOTES ON TEXAS EEPORTS. 18S 

Approved in Logan v. BobertBon (Tex. Civ.), 83 S. W. 397, fol- 
lowing rale. 

31 Tex. 371-373, BEAL ▼. BATTE. 

Person Suing in Bepresentative Oapaclty must aver facts show- 
ing authority. 

Reaffirmed in Wilson v. Hall, 13 Tex. Civ. 492, 36 S. W. 329, and 
Houston etc. Ry. v. Rogers, 15 Tex. Civ. 683, 39 S. W, 1113. 

31 Tex. 373-387, RAYMOND ▼. COOK. 

As to Existing Creditors, voluntary conveyance is fraudulent and 
void. 

Approved in Thomson v. Crane, 73 Fed. 330, reaffirming rule; 
Moreland v. Atchison, 34 Tex. 355, holding deed in consideration 
of natural love void as to existing creditors; Farrar v. Bernheim, 
74 Fed. 438, and Farrar v. Bernheim, 75 Fed. 139, holding that 
heirs of fraudulent grantee cannot hold property against creditors 
to defraud whom conveyance was made. 

Burden of Proving Bona Fides of conveyance by failing husband 
to wife is upon grantor. 

Approved in Atkins v. Atkins, 18 Neb. 476, 25 N. W. 725. 

Surety Paying Debt of Principal has right of subrogation to rights 
of plaintiff in execution as to liens and levies. 
See note, 68 L. R. A. 578. 

31 Tex. 387-^94, DE IiA QASZA v. CABOLAN. 

Sheriff and His Sureties are liable to all persons injured by non- 
performance of duties set out in terms of his bond. 
Cited in 91 Am. Dec. 333. 

31 Tex. 395-397, 98 Am. Dec. 545, WHEELEB ▼. MAYFIELD. 

Letter Introducing Merchant, ''favors .... will be indorsed by 
me for amount of his purchases," is sufficient offer of guaranty. 

Cited in notes, 1 Am. St. Rep. 584; 105 Am. St. Rep. 503; 16 L. 
R. A. (n. s.) 376. 

Miscellaneous. — Mayfield v. Wheeler, 37 Tex. 257, same case on 
second appeal. 

31 Tex. 397-^05, C0X7BAND v. VOLLMEB. 

No English Statute has Ever Been Enforced in this state except 
such as have been re-enacted. 

Reaffirmed in Johnson v. State, 1 Tex. Ap. 339. 

Common Law is Bule of Decision in Texas, in so far as it is con- 
sistent with constitution and laws of the state. 

Reaffirmed in Hamilton v. Brown, 161 U. S. 264, 16 Sup. Ct. Rep. 
588, 40 L. 691. 

31 Tex. 405-409, CANNON V. MUBPHY. 

Inchoate Interest in Land may be community property. 

Reaffirmed in Hodge v. Donald, 55 Tex. 354, and Wimberly v. 
Pabst, 55 Tex. 590. Approved in Ahern v. Ahem, 31 Wash. 337, 
96 Am. St. Rep. 912, 71 Pac. 1024, land on which husband made 
homestead entry during life of wife, but as to which he did not 
obtain patent till after her death, is community property. See notes,. 
86 Am. Dec. 631; 96 Am. St. Rep. 919; 17 L. R. A. (n. s.) 155. 



189 NOTES ON TEXAS BEPOBTS. 31 Tex. 416-447 

Overmled in McBeynolds v. Bowlby, 1 Posey U. C. 464, holding 
land grant in Peters' colony, passing after death of wife, separate 
property of husband. 

Wife's Inchoate Interest in Ck>miniinity Property, on her de&th, 
descends to her children. 
Beaffirmed in Norton v. Cantagrel, 60 Tex. 540. 

Lands Oianted to Married Person under colonization acts are com- 
munity property. 
See note, 126 Am. St. Bep. 119. 

31 Tex. 416-420, AKE ▼. STATS. 

Xnstance of Insufficiency of Evidence to convict of murder. 

Cited in State v. Cliflford, 59 W. Va. 26, 52 S. E. 991, upholding 
right to new trial in criminal c&se for insufficiency of evidence. 

31 Tex. 420-440, PBIDaEN ▼. STATE. 

Accused Need not Prove Acts of Deceased manifesting intention 
to carry out previous threat, before proving such threat. 

Overruled in Dawson v. State, 33 Tex. 505, Bean v. Mathieu, 33 
Tex. 597, and Talbert v. State, 8 Tex. Ap. 319, all holding contrary. 

One Accused of Murder may prove threats against himself by de- 
ceased. 

Reaffirmed in Myers v. State, 62 Ala. 604. See notes, 61 Am. Dec. 
55, and 43 Am. Bep. 263. 

Distinguished in Ex parte Mosby, 31 Tex. 569, 98 Am. Dec. 549, 
and Gonzales v. State, 31 Tex. 497, where accused waylaid deceased 
and attacked him when making no demonstration. 

Jury must Determine whether threats are such as jastify homi- 
cide. 

Beaffirmed in Boberts v. State, 68 Ala. 164, People v. Campbell, 
59 Cal. 258, and Garner v. State, 28 Fla. 135, 29 Am. St. Bep. 240, 
9 So. 840. 

D«iial of Any Legal Bight is sufficient to reverse judgment in 
criminal case, when life is involved. 
Beaffirmed in Stewart v. State, 36 Tex. Cr. 135, 35 S. W. 987. 

81 Tez. 440-443, ANDEBSON ▼. STATE. 

One Killing Another Without Time for Deliberation, and with no 
previously formed design, is guilty of murder in second degree. 

Beaffirmed in Simmerman v. State, 14 Neb. 570, 17 N. W. 116. 

31 Tez. 443-447, RANSOM v. ALEXA:tn>EB. 

Agent is not Authorized to receive any other than lawful cur- 
rency in payment of note. 

Approved in Scott v. Atchison, 38 Tex. 394, Scott v. Atchison, 
86 Tex. 82, and Kleberg v. Bonds, 31 Tex. 612, applying rule to 
administrator taking Confederate money in discharge of claim in 
favor of estate. 

Confederate Money was not lawful currency. 

Approved in Whitis v. Polk, 36 Tex. 628, holding contract in aid 
of rebellion void; Vance v. Burtis, 39 Tex. 91, holding that Con- 
federate money never had any legal value. 

Compliance With Iiaw Designed to aid cause of Confederacy is no 
defense against lawful demand, and should be stricken on motion. 



n 



31 Tex. 448-483 NOTES ON TEXAS REPORTS. 190 

Distinguished in Wilkinson v. 'Williams, 35 Tex. 183, where prop- 
erty in hands of bailee was forcibly taken from him by Confed- 
erate receiver. 

31 Tex. 448-464, HEBBINaTON v. WILLIAMS. 

Ko Personal Judgment can be rendered against nonresident with- 
out actual personal service. 

Overruled in Wilson v. Zeigler, 44 Tex. 659, and Fulshear v. Lau- 
rence, 1 Tex. Ap. Civ. 338. 

To Authorize Bill Quia Timet party must hold legal title and be in 
possession of land. 

Approved in Bent v. Hall, 119 Fed. 346, 56 0. C. A. 246, following 
rule; Chinn v. Taylor, 64 Tex. 390, holding that party seeking to 
remove cloud from title must show paramount legal title; Plant 
V. Barclay, 56 Ala. 564, Lehman v. Shook, 69 Ala. 496, Mason v. 
Black, 87 Mo. 346, Eastman v. Thayer, 60 N. H. 413, Weaver v. 
Arnold, 15 R. I. 58, 23 Atl. 43, De Camp v. Carnahan, 26 W. Va. 
841, and Gunderson v. Cook, 33 Wis. 557, all holding that holder of 
legal title out of possession cannot maintain bill. See valuable 
notes in 50 Am. Dec. 453, 454; 45 Am. St. Rep. 377. 

Distinguished in Thomson v. Locke, 66 Tex. 390, 1 S. W. 116, 
where party out of possession asserts equitable and legal title. 

SI Tex. 466-470, BLAIB ▼. BUTHBBFOBD. 

Condition In Act of Incorporation, that "five per cent in cash must 
be paid for subscriptiona when received," is not condition precedent 
to organization of company. 

Approved in Pittsburg etc. R. R. v. Applegate, 21 W. Va. 182, 
holding that subscriber for stock cannot escape liability for sub- 
scription on ground that he did not pay sum required by statute 
when he subscribed. But see note, 11 Am. Dec. 610. 

31 Tex. 471-474, MARSHALL v. STATE. 

Indictment for Theft must aver that property was taken without 
consent of owner. 

Approved in Ridgsway v. State, 41 Tex. 232, reaffirming rule; 
Williams v. State, 12 Tex. Ap. 397, setting forth four requisites 
of valid indictment for theft. 

Overruled in Berg v. State, 2 Tex. Ap. 153, holding indictment 
charging theft in usual form sufficient. 

Indictment for Theft Under Article 2385, Paschal's Digest^ must 
allege false pretext or felonious intent when property was obtained. 

Reaffirmed in Jones v. State, 8 Tex. Ap. 650. 

Overruled in Davidson v. State, 12 Tex. Ap. 216, holding convic- 
tion may be had for swindling under ordinary indictment for theft. 

31 Tex. 476-483, BARRETT V. KELLY. 

Mexican Law was in Force in Texas up to 1840. 

Reaffirmed in Hammekin v. Clayton, 2 Woods, 339, Fed. Cas. 5996. 
See note, 31 L. R. A. 179. 

^ Act of 1840 Adopted Common Law as rule of decision, so far 
as consistent with constitution and statutes then in force. 

Approved in Hamilton v. Brown, 161 XJ. S. 264, 16 Sup. Ct. Rep. 
588, 40 L. 691, reaffirming rule; Johnson v. State, 1 Tex. Ap. 339, 
holding that act of 1840 did not adopt any English statutes. See 
note, 31 L. R. A. 181. 



191 NOTES ON TEXAS EEPORTS. 31 Tex. 484-503 

After Annexation Texas Oltizens were in their own country from 
Maine to Mexico. 

Approved in Bojd v. Thayer, 143 U. S. 169, 12 Sup. Ct. Rep. 385, 
36 L. 103, holding that citizens of Texas became citizens of United 
States when state was admitted; In re Rodriguez, 81 Fed. 350, hold- 
ing Mexicans eligible to citizenship. 

Distinguished in State v. Boyd, 31 Neb. 729, 758, 48 N. W. 752, 
762, holding that alien inhabitants do not become citizens on ad- 
mission of state to Union. 

Under Common Law aliens might take land by purchase or devise, 
bat hold it at the will of the government. 

Approved in Williams v. Bennett, 1 Tex. Civ. 5Q5, 20 S. W. 858, 
Phillips V. Moore, 100, U. S. 210, 25 L. 603, and Hammekin v. Clayton, 
2 Woods, 341, Fed. Cas. 5996, holding that aliens held good title until 
devested by government. 

At Common Law, Landa of alien escheated to state upon his death. 

Distinguished in Settegast v. Schrimpf, 35 Tex. 341, under exist- 
ing statutes. 

81 Tex. 484r-ft86^ DE LA GABZA v. BEXAB CO. 

Cbief Justice cannot Bring Suit in his own name for benefit of 
county, under article 1045, Paschal's Digest. 

Approved in Looscan v. Harris Co., 58 Tex. 515, applying rule to 
suit for county by county attorney under article 260 of the Revised 
Statutes; Anderson v. Walker (Tex. Civ.), 49 S. W. 947, on point 
that control of county affairs is vested in county commissioners' 
courts. 

Distinguished in Smith v. Mosely, 74 Tex. 633, 12 S. W. 748, hold- 
ing that nominal party's name may be stricken as surplusage. 

81 Tex. 492-495, HICKLIN v. STATE. 

Becognlzance on Appeal must state offense and show that it is 
a crime. 

Reaffirmed in Bnie v. State, 1 Tex. Ap. 61. 

In Criminal Caee Notice of Appeal must be given in open court 
and entered of record. 

Reaffirmed in Beck v. State (Tex. Civ.), 76 S. W. 923, and Long 
V. State, 3 Tex. Ap. 322. 

81 Tex. 495-497, GONZALES V. STATE. 

Where Defendant Went in Quest of deceased with weapons, prior 
threats by deceased are not justification for killing. 

See note, 89 Am. St. Rep. 701. 

81 Tex. 498-502, CBOCKEB v. STATE. 

Facts Constituting Diligence must be stated in affidavit for con- 
tinuance. 

Reaffirmed in Murray v. State, 1 Tex. Ap. 420. 

81 Tex. 502-^03, CHALET V. CHALET. 

When Verdict Against Wife, execution cannot issue for alimony 
ordered before trial and not paid. 

See note, 24 L. R. A. 438. 

Distinguished in Dawson v. Dawson, 37 Mo. Ap. 212, showing 
distinction between alimony pendente lite for attorney's fees and 
costs, and that for support. 



V 



31 Tex 504-572 NOTES ON TEXAS EEPORTS. 192 

31 Tex. 604-656, EMANOIPATiaN CA»SS, HAXli v. KEESS. 

Notes Given for Sale or lease of slaves during war, but before 
complete emancipation, were not void as against public policy. 

Cited in Whitis v. Folk, 36 Tex. 628, holding contract in aid of 
rebellion void. 

President's Proclamation did not, ipso facto, free all slaves. 

Reaffirmed in Henderlite v. Thurman, 22 Gratt. 473, 12 Am. Bep. 
531. 

Freedom of Slaves in Texas dates from surrender of insurgent 
forces, June 19, 1865. 

Reaffirmed in Algier v. Black, 32 Tex. 170, Jo*hnston v. Davis, 32 
Tex. 251, and McDaniel v. White, 32 Tex. 489. 

Criticised in Morris v. Banney, 37 Tex. 124, questioning date when 
slavery was abolished in Texas. 

31 Tex. 669-660, STATE v. FUIiLEE. 

Indictment for Playing Cards should show that playing was done 
in place designated in statute. 

Reaffirmed in Scribner v. State, 12 Tex. Ap. 174, and Fossett v. 
State, 16 Tex. Ap. 375. 

SI Tex. 660-661, STATE v. BItACK. 

Blgld Bnle of Common Iaw is not required in naming injured 
party in indictment as in case of defendant, hence allegation of 
theft of property of "H. B." Smith is sufficient. 

Approved in People v. McGilver, 67 Cal. 56, 7 Pac. 49, following 
rule; Olibare v. State (Tex. Cr.), 48 S. W. 70, misnomer in middle 
initial is immaterial; State v. McChesney, 16 Mo. Ap. 266, State v. 
Glaevecke, 33 Tex. 60, cited approvingly in arguendo. 

31 Tex. 661-664, STATE ▼. NATIONS. 

Indictment not Sliowing Person intended to be killed nor intent 
with which assault was committed is bad. 

Reaffirmed in Wimberly v. State, 7 Tex. Ap. 329. 

31 Tex. 664-^666, STATE ▼. Mn.TiEB. 

Sheriff has No Authority to Exact Bail Bond from one whom he 
has arrested or who voluntarily surrenders; he must take accused 
before some magistrate, that offense may be ascertained. 

Reaffirmed in Short v. State, 16 Tex. Ap. 47. 

31 Tex. 666-670, 98 Am. Dec. 647, EX PARTE MOSBY. 

Instance Where Previous Threats held not to constitute jnstiff- 
cation. 

Cited in 5 Am. St. Bep. 894, 59 Am. St. Rep. 96, notes. 

Fact That Defendant was Oullty of adultery with wife of deceased 
will overcome excuse that deceased had threatened defendant's life, 
and show a motive for the homicide on part of defendant. 

Approved in Weaver v. State, 43 Tex. Cr. 344, 65 S. W. 535, al- 
lowing in homicide ease evidence of defendant's illicit relations with 
wife of deceased just prior to her marriage, together with fact of 
her pregnancy through him, as a motive. 

31 Tex. 671-672, 98 Am. Dec. 660, JOBDT v. STATE. 
Indictment for Stealing Horse is not sustained by proof of stealing 

a gelding. 



193 NOTES ON TEXAS BEPOETS. 31 Tex. 572-586 

Approved in Brisco v. State, 4 Tex. Ap. 221, 30 Am. Bep. 163, 
State ▼. McDonald, 10 Mont. 23, 24 Am. St. Bep. 26, 24 Pac. 629, 
Swindel v. State, 32 Tex. 103, and Gibbs v. State, 34 Tex. 135, all 
reaffirming rule; Martinez v. Territory, 5 Ariz. 56, 44 Pac. 1089, 
under indictment for stealing steer, proof that animal was cow is 
fatal variance. See note, 24 Am. St. Bep. 27. 

Distinguished in Miller v. Territory, 9 Ariz. 125, 80 Pac. 322, 
under statute making it grand larceny to steal "mare" stealing of 
female colt is grand larceny; Fein v. Territory, 1 Wyo. 379, holding 
indictment for malicious killing of horse sustained by proof of such 
killing of gelding. 

31 Tex. 572^74, MOORE v. STATE. 
Capital Offense is not bailable. 
Cited in 78 Am. Dec. 529, note. 

31 Tttz. 574-678, CIiABE V. STATE. 

Verbal Instmctions cannot be Given without consent of defendant 
or his attorney. 

Beaffirmed in Brown v. State, 38 Tex. 486, State v. Potter, 15 
Kan. 317, Currie v. Clark, 90 N. C. 360, and State v. Bennington, 
4i Kan. 585, 25 Pac. 92. See note, 99 Am. Dec. 126. 

31 Tez 578-679, STATE v. FOSTER. 

Indictment for Simple Fornication does not lie in Texas. 

Beaffirmed in State v. Smith, 32 Tex. 167, State v. Bahl, 33 Tex. 
77, and Wolff v. State, 6 Tex. Ap. 195. 

Distinguished in State v. Ban die, 41 Tex. 293, being prosecution for 
running a lottery. 

To OonBtitate liized Offense of adultery and fornication, parties 
must live together in state of cohabitation. 

Beaffirmed in Bichardson v. State, 37 Tex. 346, and Parks v. State, 
4 Tex. Ap. 135. 

Every Offense must be Defined before it is punishable. 
Beaffirmed in Queen Ins. Co. v. State, 86 Tex« 262, 24 S. W. 400, 
22 L. B. A. 483, and Ex parte Bergen, 14 Tex. Ap. 55. 

31 TMl 579-586, BENAVIDES v. STATE. 

Dying Declarations are admissible in trial for murder. 

Beaffirmed in Black v. State, 1 Tex. Ap. 384. See note, 56 L. B. 
A. 358. 

On Trial for Murder, court may charge jury on murder in second 
degree and manslaughter. 

Beaffirmed in Conner v. State, 23 Tex. Ap. 386, 5 S. W. 192. 

Dying Declarations are Admissible only where declarant was of 
sound mind. 

See notes, 86 Am. St. Bep. 640; 56 L. B. A. 404. 

Dying Declarations Voluntarily Made and not responsive to inter- 
rogatories calculated to mislead are admissible. 

See note, 86 Am. St. Bep. 644. 

Dying Declarations* to be Admissible, must be made nnder sense 
of impending death; i. e., under total abandonment of hope of recov- 
ery. 

See note, 56 L. B. A. 382, 397. 

t Tex. Notes— 13 



31 Tex. 586-609 NOTES ON TEXAS REPORTS. 194 

31 Tex. 686-588, WILCOX v. STATE. 

Indictment Charging Burfl^ary and theft is not bad for duplicity. 

Beaffirmed in Shepherd v. State, 42 Tex. 504; Robertson v. State^ 
6 Tex. Ap. 683. 

Defendant cannot be Heard after arraignment to deny that his 
true name was not set forth in indictment. 

Reaffirmed in Henry v. State, 38 Tex. Cr. 313, 42 S. W. 560, Early 
▼. State, 1 Tex. Ap. 269, and State v. Knowlton, 70 Me. 201. 

A Motion for a New Trial must be disposed of at the term of 
court to which it is presented. 

Approved in Roan v. State, (Tex. Cr.), 65 S. W. 1069, in rape case,, 
where punishment is assessed at death, the appeal must be taken 
during the term. 

31 Tex. 590-592, FLOUBNOY v. HEALY. 

Judgment for Five Hundred and Ninety Dollars "in specie" is 
erroneous in contravention to legal tender act, and ought to be 
reformed. 

Reaffirmed in Davidson v. Peticolas, 34 Tex. 36, and Bridges v. 
Reynolds, 40 Tex. 214. See note, 29 L. R. A. 515. 

31 Tex. 592-695, WOMACK v. SHELTOK. 

Personal Jurisdiction can be acquired by service of process or by 
personal appearance without notice. 

Approved in McDonald v. Blount, 2 Tex. Ap. Civ. 299, holding that 
consent to change of venue gives jurisdiction. 

31 Tex. 596-601, HOFFMAN V. CAGE. 

Mere Institution of Proceedings, with suppression of process, does 
not fix indorser's liability. 

Approved in Christian v. Austin, 36 Tex. 541, to point that ven- 
dor's lien is not waived by taking note for purchase money; Jones 
V. Andrews, 72 Tex. 14, 9 S. W. 172, holding plaintiffs not respon- 
sible for clerk's delay in issuing citation; East Texas etc. Ins. Co. v. 
Templeton, 3 Tex. Ap. Civ. 495, holding filing of petition not suffi- 
cient to stop running of statute of limitations. See note, 18 L. R. 
A. (n. B.) 546. 

Bendition of Judgment terminates relation of attorney and client. 

Approved in Brown v. Arnold, 127 Fed. 391, attorney employed to 
act at trial has no authority to act in proceeding in error in ab- 
sence of new employment. 

31 Tex. 602-604, 8CHB0EDEB V. FBOMME. 

When Proceas Served and judgment taken by confession, plaintiff 
need not swear to justness of debt. 

Reaffirmed in Rankin v. Filbum, 1 Tex. Ap. Civ. 441. 

Query, Whether Injunction Lies against judgment on note whose 
consideration was loan of Confederate money. 

See note, 31 L. R. A. 759. 

31 Tex. 605-608, BOGEBS v. PATTEBSON. 

Party to Beccffd is not competent witness for his cosuitor. 
Beaffirmed in Ward v. McKenzie, 33 Tex. 320, 7 Am. Rep. 267. 

31 Tex. 608>609, HARBISON v. MOSELEY. 

Uniform Practice of Supreme Court is a quasi law. 

Approved in Brown v. State, 38 Tex. 486, applying rule to prac- 
tice of supreme court, in felony cases, to examine general charge- 



195 NOTES ON TEXAS REPORTS. 31 Tex. 610-643 

to ascertain if accnsed has been fairly tried. See note, 53 Am. Rep. 
536. 

SI Tex. 610-611, THOMPSON v. HOUSTON. 

Note Payalile Twelve Months after peace treaty between United 
States and Confederacy is valid. 

Reaffirmed in Knight v. McReynolds, 37 Tex. 209; Atchison v. 
Scott, 51 Tex. 221. 

Miscited in Fox v. Woods, 34 Tex. 224, holding judgment ren- 
dered on receipt for Confederate money void. 

31 Tex. 611-612, KLEBERa ▼. BONDS. 

OoQfoderate Money cannot be considered payment. 
Reaffirmed in Scott v. Atchison, 36 Tex. 82; Scott v. Atchison, 38 
Tex. 394. 

31 Tex. 617-621, SOHEBEB v. X7PTON. 

Where Petition Sworn to by Agent averred loss by agent and 
defendant merely pleaded want of consideration, execution of note 
admitted. 

See note, 94 Am. St. Rep. 480. 

31 Tex. 621-623, BItUCHEB V. MILSTEIX 

WhMe Defendant is Sued in county other than that of his resi- 
dence, verified plea in abatement should be sustained. 

Reaffirmed in Shandy v. Conrales, 1 Tex. Ap. Civ. 94; Strohl v. 
Pinkerton, 1 Tex. Ap. Civ. 218. 

31 Tex. 623-628» AUTBEY v. WHITMOBE. 

Doctrine of Vendor's lien does not apply to probate sales of realty. 

Overruled in Wright v. Heffner, 57 Tex. 523, and Hicks v. Morris, 
57 Tex. 661. See note, 46 Am. Dee. 121. 

31 Tex. 633.636, HOaAN ▼. CBAWFOBD. 

New and Distinct Parol Agreement, as substitute for original 
written one, may be established by oral evidence. 

Reaffirmed in Harper v. Kelley, 1 Tex. Ap. Civ. 17. See note, 56 
Am. St. Rep. 662, 664, 665, 668, 672. 

31 Tex. 63^-641, 98 Am. Dec. 551, HAMILTON v. PLEASANTft. 

Purchaser at Sale by Execntor is bound to ascertain authority of 
executor not from his declarations at sale, but from court order 
and statutes. 

Reaffirmed in Rice v. Burnet, 39 Tex. 180. See note, 6 L. R. A. 74. 

Execntor can Make No Bepresentatlon at Sale which court orders 
or statutes do not warrant. 

Reaffirmed in Edmonson v. Garnett, 33 Tex. 259. See note, 3 L, 
R. A. 440. 

Executor's Declaration, at sale, that sale was for Confederate 
money could not operate as fraud on purchaser. 

Approved in Shearon v. Henderson, 38 Tex. 248, holding suit 
maintainable, on obligation payable in Confederate notes, by executor 
or trustee. 

31 Tex. 642-^648; BEESE ▼. TEAGABDEN. 

Open Acconnt in Favor of Maker against payee ef note eannot be 
offset against note, in action by transferee of note after maturity. 

See note, 46 L. R. A. 790. 



31 Tex. 643-675 NOTES ON TEXAS REPORTS. 196 

31 T^z. 643-646, ATKINSON v. WILSON. 

Fact That Interrogatories are answered in Christian name differ- 
ent than that contained. in notice and dedimus is no ground for ex- 
cluding it where defendant filed cross-interrogatories. 

Approved in International etc. R. R. v. Kindred, 57 Tex. 500, hold- 
ing answers in name idem sonans sufficient. 

Where Depositloa Erroneously excluded could not have changed 
result, judgment should be affirmed. 

Approved in Rosenthal v. Middlebrook, 63 Tex. 335, and Beau- 
champ V. International etc. R7., 56 Tex. 243, holding admission or 
exclusion of evidence no ground for reversal unless prejudicial to 
appellant; Tuggle v. Hughes (Tex. Civ.), 28 S. W. 63, refusing to re- 
verse for error where other evidence supported verdict. 

31 Tex. 647-649, BUOHANAN V. HABT. 

Where Trustee Dies before Execnting Trust, court has power to 
appoint successor. 

Reaffirmed in Converse v. Davis, 90 Tex. 466, 39 S. W. 278. Ap- 
proved in Rice v. Peacock, 37 Tex. 393, cited arguendo as to whether 
married woman is bound hj deed of trust executed during coverture. 
See note, 130 Am. St. Rep. 518. 

31 Tex. 650-659, HARBISON ▼. HABWOOD. 

Action for Wrongfnl Attachment is proceeding on attachment bond, 
and bond must be pleaded and relied upon. 

Approved in Davis v. Rawlins, 1 Tex. Ap. Civ. 15, holding that 
defendant may reconvene or sue on bond. 

In Salt for Wrongful Attachment, plaintiff may prove actual dam- 
ages sustained. 

Approved in Munnerlyn v. Alexander, 38 Tex. 128, holding plain- 
tiff entitled to damage sustained by being deprived of use of prop- 
erty; De Witt V. Oppenheimer, 51 Tex. 108, holding sheriff liable 
for actual damages caused by excessive levy. 

It Seems That Both Defenses "wrongful" and "malicious" attach- 
ment may be allowed when both are pleaded. 

Approved in Fechheimer v. Ball, 1 Tex. Ap. Civ. 421, holding 
that plea should distinguish actual from exemplary damages. 

Levying Officer has Large Discretion in fixing value of property 
levied on. 

See note, 95 Am. St. Rep. 102. 

31 Tex. 659-663, SCHMIDT v. MACKEY. 

Judgment must Oonform to issues. 

Approved in Smithers v. Smith, 35 Tex. Civ. 511, 80 S. W. 647, 
following rule. 

31 Tex. 663-666, LEWIS ▼. LOWEBY. 

Under Article 1443, regulating proceedings in district court, when 
petition avers execution of instrument by partnership, plaintiff need 
not prove partnership before introducing instrument, unless part- 
nership be denied under oath. 

Approved in City Water Works v. White, 61 Tex. 539, holding 
that plea non est factum must be sworn to. 

31 Tex. 670-675, OEOBGE v. STEVENS. 

Woman Making Note With Husband, in consideration of slave 
purchased by her, is liable on note. 



197 NOTES ON TEXAS REPORTS. 31 Tex. 677-700 

Approved in Smotridge t. Lovell, 35 Tex. 59, holding that wife 
maj be jointly sued on note executed by her and her husband for 
benefit of her separate estate. 

31 Tez. 677-693, THE HOMESTEAD CASEa 

31 Tez. 677-681, 98 Am. Dec. 553, WILSOK ▼. COOHBAN. 

Family is Any Ck>mbiiiation of Hmnan Beings living together in 
common interest and having common object in their pursuits and 
occupations. 

Reaffirmed in Goode t. State, 16 Tex. Ap. 415, Calhoun v. Will- 
iams, 32 Gratt. 23, 34 Am. Rep. 763, and Stuart v. Stuart, 18 W. 
Va. 683. Approved in Stames v. Atlantic etc. Assn., 2 Oa. App. 
243, 58 S. E. 484, construing term "family" in provision of consti- 
tution of benefit society relating to beneficiaries. See notes, 61 Am. 
Dec. 587; 5 Am. St. Rep. 45; 4 L. R. A. (n. s.) 366; 6 L. R. A. 813. 

Criticised in Howard v. Marshall, 48 Tex. 478, 479, holding under 
provisions of constitution of 1869, relating to homestead, "family" 
meant husband, wife and children, and not persons neither related 
by blood nor marriage; McMillan v. Hendrick (Tex. Civ.), 46 S. W. 
861, boy taken by man and wife, who were not related to him, into 
their family merely as a dependent cannot succeed to their homestead. 

Homestead is Protected from forced sale by constitution, and 
legislative aid is not necessary to this protection. 

Approved in Miller v. Marx, 55 Ala. 331, holding homestead re- 
served for protection of whole family; Holloway v. Holloway, 86 
6a. 579, 22 Am. St. Rep. 485, 12 S. E. 944, 11 L. R. A. 518, holding 
that wife under moral obligation to support children entitled to 
homestead for herself and them. See note, 61 Am. Dec. 592. 

Single Man Occupying House, without servants, has no claim as 
family, and property is not exempt as homestead. 

Reaffirmed in Zimmerman v. Franke, 34 Kan. 654, 9 Pac. 750. 
See notes, 70 Am. Dec. 348, 349, 350; 4 L. R. A. (n. s.) 386. 

31 Tex. 681-687, WAI.KEA ▼. DABST. 

Act of 1860, in so far as permitting town homesteads of more 
than two thousand dollars value, by providing that increase in 
value by improvements, etc., after selection, shall not be consid- 
ered, is void. 

Cited in dissenting opinion in Western Mortgage etc. Co. v. Gan- 
zer, 63 Fed. 658, on point that constitution was self-acting. 

It Takes Both Xiand and House owned by occupants to constitute 
a homestead. 

Cited in notes, 2 Woods, 662, and 70 Am. Dec. 295. 

81 Tex. 688-603, 98 Am. Dec. 656, WEIiOH ▼. BICE. 

Married Woman imder No Restraint representing that certain 
land is not her homestead is concluded by her acts. 

Cited in 60 Am. Dec. 613, note. 

Consent of Wife to Sale of Homestead must be given in manner 
pointed out by statute. 

Cited in 5 Am. St. Rep. 777, and 8 Am. St. Rep. 825, notes. 

31 Tex. 693-700, THE INDOB8EMENT CASES. 

Act of 1840 Repealed All Laws in force prior to 1836, with men- 
tioned exceptions, and adopted common law of England as rule of 
decisions. 



31 Tex. 693-700 NOTES ON TEXAS BEPOBTa 198 

Approved in Johnson t. State, 1 Tex. Ap. 339, holding that adop- 
tion of common law did not include English statute law. 

After January 11, 1862, and until courts were opened in 1865, 
protest and notice was the only mode of fixing liability of indorsers. 

Approved in Stratton v. Johnston, 36 Tex. 91, reaffirming rule; 
McOary v. McKenzie, 38 Tex. 216, holding that indorser's liability 
on note due in 1862 or 1863 was fixed by institution of suit at first 
term after courts opened in 1865. See note, 18 L. B. A. (n. s.) 541. 

Distinguished in Christian v. Austin, 36 Tex. 541, holding that in- 
solvency of maker dispenses with necessity of due diligence on part 
of holder. 



NOTES 

ONTSa 



TEXAS REPOETS 



CASES IN 32 TEXAS. 



32 Tez. 17-21, McdJXLAND ▼. SHELBY CO. 

Thm Powezft Vested in Chief Justlcee of counties relatire to moT- 
ing county seats are political, and not judicial. ^^S^ 

Approved in Worsham v. Bichards, 46 Tex. 446, county court has ^^*^ 
jurisdiction to determine all matters with reference to elections 
for removal of county seat; Lawson v. Jeffries, 47 Miss. 705, 12 
Am. Rep. 354, legislative bodies have no authority to perform ju- 
dicial acts. 

From July 25, 1866, to August 20, 1866, during the incumbency 
of Governor Hamilton, what he declared to be law was law, he 
being the supreme power in the state. 

Approved in Daniel v. Hutcheson, 86 Tex. 63, 22 S. W. 937, pro- 
bate sale made and approved in Harris county in 1870 was valid. 

Miscellaneous. — Gibson v. Schoolcraft, 1 Tex. Ap, Civ. 25, er- 
roneously cited as holding that a statement of facts not approved 
or certified to by the judge cannot be treated as a statement of 
facts on appeal. 

32 Tex. 21-31, SCOaiN ▼. PEBBY. 

Under the Act of Febmary 14, 1860, a junior judgment properly 
recorded would take priority, in distribution of proceeds of sale, 
over senior unrecorded judgment. 

Approved in Be Lacy, 14 Fed. Gas. 920, applying rule where 
junior mortgage was recorded prior to senior judgment. 

Criticised in Black v. Epperson, 40 Tex. 186, holding by the acts 
of 1860 and 1866 validity of all judgments rendered in district courts 
was extended ten years. 

Bailroads are not Boal Estate within the meaning of law on which 
lien would be secured by recording judgment against such com- 
panies. 

Approved in Houston etc. B. B. v. Shirley, 54 Tex. 144, under 
constitution of 1866, a failroad company could mortgage its fran- 
chise. 

Judgment will not Become Dormant in less than ten years, al- 
though no execution was issued thereon. 

.(199) 



32 Tex. 35-74 NOTES ON TEXAS EEPORTS. 200 

Approved in WilliamB v. Murphy, 36 Tex. 174, and Hutchins v. 
Chapman, 37 Tex. 614, both reaffirming rule. 

Overruled in Sampson v. Wyett, 49 Tex. 632, holding judgment 
beeomeft dormant at expiration of twelve months, where no execu- 
tion is issued. 

32 Tex. 35-42, M6DONAIJ> ▼. ALFOBD. 

Administrator De Bonis cannot Institute suit in district court to 
correct account of administrator settled in the probate court. 

See notes, 108 Am. St. Bep. 429; 40 L. B. A. 66. 

Criticiaed in Todd v. Willis, 66 Tex. 710, 712, 1 S. W. 807, 808, 
holding administrator de bonis non had right to maintain suit to 
set aside fraudulent sale. 

Administrator De Bonis Non can Sue predecessor only on bond for 
unaccounted assets of estate. 

See notes, 108 Am. St. Bep. 427; 40 L. B. A. 66, 72. 

32 Tex. 43-63, 6 Am. Bep. 234, DONLEY v. TINDALL. 

Parol Evidence may be Introdaced to Explain Oircnmstances and 
surroundings under which a written contract was made. 

Approved in Dorr v. School District, 40 Ark. 241, parol evidence 
is admissible to prove circumstances under which a contract was 
made. See notes, 11 Am. Bep. 491; 28 Am. Bep. 210; 6 L. B. A. 47. 

Wl^ere Parol Evidence is Admitted to Affect Written Contract, it 
must be confined within the strict limit of exposition and inter- 
pretation. 

Cited in following notes: 6 Am. Bep. 678; 2 Am. St. Bep. 604. 

Courts will not Enforce a Contract executed on the basis of Con- 
federate money. 

Beaffirmed in Bitchie v. Sweet, 32 Tex. 358, 5 Am. Bep. 248. 

32 Tex. 65-71, POE ▼. STATE. 

A Charge to the Jnry to Find Defendant Ooilty of Mnrder in the 
first degree, if they found him guilty, is a correct charge where 
there is no evidence of a lower degree of crime. 

Approved in Holland v. State, 38 Tex. 481, reaffirming rule. 

Party Belying on Admission of Illegal Testipiony for reversal 
should except to admission thereof, and specifically set forth errors 
complained of. 

Approved in Cooper v. State, 7 Tex, Ap. 198, reaffirming rule; 
Walker v. State, 7 Tex. Ap. 264, exception to ruling of court on 
admissibility of evidence must be reserved. 

32 Tex. 71-74, NELSON v. STATE. 

Where Judgment was not Entered on Verdict of Chiilty and an 
appeal taken, court proceeded to affirm case, holding that judgment 
could be entered at succeeding term. 

See note, 28 L. B. A. 628. 

Overruled in Mayfield v. State, 40 Tex. 290, holding no appeal 
will lie from judgment of conviction until such judgment is entered. 

Momentary Separation of a Jnror from Best of Jury is no ground 
for new trial, unless injury thereby is shown. 

Approved in Davis v. State, 3 Tex. Ap. 102, to entitle defendant 
to new trial on account of misconduct of jury, he must show he 
did not have fair trial. See notes, 35 Am. Dec. 259; 43 Am. Dee. 
85; 103 Am. St. Bep. IGL 



801 NOTES ON TEXAS REPORTS. 32 Tex. 74-95 

DistingoiBhed in Early v. State, 1 Tex. Ap. 275, 28 Am. Rep. 412, 
where jurors have been separated during trial of criminal case, it 
entitled defendant to new trial. 

32 Tez. 74r-79, STATE v. KHiLOUOH. 

mdictment for Assault With Intent to Murder in substantially 
the language of the statute, held sufficient. 

Approved in State ▼. Jennings, 35 Tex. 506, James ▼. State, 36 
Tex. 646, State v. Walker, 40 Tex. 486, and Porter v. State, 1 Tex. 
Ap. 395, all reaffirming rule; State v. Wall, 35 Tex. 485, great de- 
gree of particularity not required in charging assault with intent 
to commit crime. 

32 Tez. 79-84, HOBTON V. STATE. 

The Test of Forged Instrument is, whether the instrument, if true, 
would create, increase, diminish, discharge, or defeat any pecuniary 
obligation or transfer or affect any property. 

Approved in MeDufF v. State, 14 Tex. Ap. 59, and Morris v. State, 
17 Tex. Ap. 666, both reaffirming rule; Labbaite v. State, 6 Tex. Ap. 
261, indictment for forgery setting out forged instrument, and charg- 
ing offense in language of code is sufficient; State v. Gee, 28 Or. 
108, 42 Pae. 10, road certificate, purporting to have been issued by 
road foreman, may be subject of forgery. 

A Note Payable In Trade or Commodity may be the subject of 
forgery. 

See valuable note in 22 Am. Dec. 319, 320. 

Fact That No Bevenne Stamp affixed to instrument forged is im- 
material. 

See notes, 84 Am. St. Rep. 199; 46 L. R. A. 455; 24 L. R. A. 44. 

Indictment for Forgery need not state facts showing manner in 
which false instrument, if true, creates, increases or discharges 
pecuniary obligation. 

See note, 24 L. R. A. 40. 

32 Tez. 84-86, DOVEB v. STATE. 

Where Evidence Falls to Show any actual damage done by maim- 
ing, wounding or disfiguring animal, and that act was done ma- 
liciously with intent to injure owner, prosecution for malicious prose- 
cution is not sustained. 

See note, 128 Am. St. Rep. 171. 

32 Tez. 8e-88, HOLSHAUSEN V. HOLUNQSWOBTH. 

A Plaintiif is Entitled to Actual Notice of a rule against him to 
give security for costs. 

Approved in Marks v. Fields (Tex. Civ.), 29 8. W. 664, notice of 
rule for costs must be given to the party i^ected thereby. 

Distinguished in Frazer v. Moore, 28 Tex. Civ. 429, 67 S. W. 428, 
where action "pending" at time motion for rule requiring security 
for costs made, its filing during term and entry on motion docket 
is sufficient notice. 

32 Tez. 88-95, HABTLESS v. STATE. 

As » (General Bule, the State cannot attack the character of ac- 
cused, unless accused first initiates such inquiry. 

Approved in Thompson v. State, 38 Tex. Cr. 341, 42 S. W. 977, 
state cannot inaugurate inquiry into defendant's character. 



32 Tex. 99-109 i^OTES ON TEXAS KEPORTS. ?03 

Where Defendant Confesses, fact that state attacked his char- 
acter is not reversible error. 
See note, 20 L. B. A. 610. 

32 Tex. 99-102, STATE V. CBIST. 

Indictment for Unlawfully Using an Estray need not fully de-* 
scribe the animal as to age, color, sex, or marks, and brands. 

Approved in Owens v. State, 38 Tex. 557, indictment for taking 
up and using an estray, designating the animal as "certain sorrel 
gelding," held sufficient. 

Defendant has Burden of Showing Excuse or justification for un- 
lawfully using estray. 

Approved in Floyd v. State (Tex. Civ.), 68 S. W. 691, information 
for unlawfully selling estray need not negative owner's consent to 
sale. 

32 Tex. 102-104, SWINDEL V. STATE. 

Former Acquittal of Charge Under Indictment for Theft of horse 
is no bar to prosecution for theft of a gelding. 

Approved in Irwin v. State, 7 Tex. Ap* 82, reaffirming rule; Mor- 
gan V. State, 34 Tex. 683, acquittal of theft of money from one per- 
son is no bar to prosecution for theft of same money from another 
person; Parchman v. State, 2 Tex. Ap. 240, 241, 28 Am. Sep. 438, 
dismissal of prosecution for theft from "H. Franks" is no bar to 
prosecution for theft from "H. Frank"; Brisco v. State, 4 Tex. Ap. 
221, 30 Am. Bep. 163, proof of theft of ridgling will not support 
indictment for theft of gelding; Martinez v. Territory, 5 Ariz. 56, 
44 Pac. 1089, where indictment charges theft of steer and proof 
shows animal was cow, variance is fatal. 

Entering of Nolle Prosequi After Plea of not Ouilty by defendant 
is no bar to prosecution under a subsequent indictment for same 
offense. 

Approved in Lewis v. State, 1 Tex. Ap. 326, Ex parte Bogers, 
10 Tex. Ap. 665, and Ex parte Porter, 16 Tex. Ap. 324, all reaf- 
firming rule; Mays v. SUte, 51 Tex. Gr. 34, 101 S. W. 234, dismissal 
of prosecution after state introduced one witness, on discovery that 
defendant had not pleaded, is not jeopardy. See note, 98 Am. Dec. 
550. 

32 Tex. 104-108, STATE ▼. THOENTON. 

State cannot Appeal from Judgment of District Court sustaining 
exceptions to indictment for felony for insufficiency. 

Overruled in State v. Wall, 35 Tex. 485, under constitution of 
1869 state has the right of appeal in felony cases. 

Order of the Court Sustaining Exceptions to indictment is not a 
final judgment. 

See note, 60 Am. Dec. 438. 

32 Tex. 108-109, ASHCBOFT V. STATE. 

Under an Indictment for Unlawfully Using Estray, the state only 
needs to prove that the animal was running at large and defendant 
took up and used same. 

Approved in Evans v. State, 40 Tex. Cr. 58, 48 8. W. 195, in 
prosecution for embezzlement of money, burden of proving a lawful 
disposition of same is on defendant. 



203 NOTES ON TEXAS BEPOBTS. 32 Tex. 109-129 

32 Tex. 109-112, PEBEIN8 ▼. STATE. 

Borden of Proof is on Defendant charged with unlawfully using 
estray, where state proves accused took and used animal running at 
large without known owner. 

See note, 97 Am. St. Bep. 777. 

32 Tez. 112-117, WILSON v. STATE. 

Grand Juy After Being Discharged were Again Beasaemhled and 
found indictment against defendant; held, there was no error in 
Bueh proceedings. 

Approved in dissenting opinion in Matthews v. State (Tex. Cr.)) 
58 S. W. 92, majority holding under article 411 of the Code of Crim- 
inal Procedure that court may discharge disqualified grand juror 
and complete panel on their reassembling; Territory of Arizona v. 
Chartz, 4 Ariz. 6, 32 Pac. 166, upholding grand jury summoned on 
open venire after discharge of regular grand jury drawn from 
regular list. See note, 12 Am. St. Bep. 904. 

Limited in dissenting opinion in Matthews v. State, 42 Tex. Gr. 
53, 58 S. W. 92, majority holding where discharged grand jury is 
reassembled and one of original members is disqualified, qualified 
juror may be sworn in his stead. 

Confession is Admissible though made in jail if accused was first 
cautioned that it would be used against him. 

See note, 18 L. B. A. 792. 

32 Tez. 117-120, MATTHEWS V. STATE. 

The Role is Well Established that evidence of good character is 
admissible in all cases involving life. 

Approved in Lincecum v. State, 29 Tex. Ap. 333, 25 Am. St. Bep. 
729, 15 S. W. 818, evidence of defendant's good character admissible 
wherever criminal intent is necessary to constitute crime. See notes, 
103 Am. St. Bep. 891; 20 L. B. A. 613. 

32 Tez. 121-124, GOODSON v. STATE. 

An Indictment for Theft of Two Horses, referred to in the indict- 
ment by the pronoun "it" was held sufficient; the pronoun "it" 
referring to the horses as property. 

Approved in Thompson v. State, 16 Tex. Ap. 74, reaffirming rule. 

32 Tez. 124-125, BBOWN v. STATE. 

In an Indictment for Theft Alleging "T. G. Lucky" was the owner, 
and evidence showed "G. G. Lucky" was the owner, held the error 
was not fatal. 

Approved in State v. Gollins, 115 N. G. 720, 20 S. E. 453, reaffirm- 
ing rule; Delphino v. State, 11 Tex. Ap. 32, a middle name or initial 
is not recognized by law. 

Overruled in Gollins v. State, 43 Tex. 578, holding proof of theft 
of property from "Gabriel Garter" would not support indictment of 
theft from "Garter Gabriel." 

32 Tez. 126-129, KINNET ▼. VINSON. 

In Trespass to Try Title, party seeking to oust tenant must show 
that he has good right to recover, not only as to tenant, but as to 
the world. 

Approved in Hillmann v. Meyer, 35 Tex. 541, reaffirming rule; 
Philipowski t. Spencer^ 63 Tex. 609, possession of defendant gave 



32 Tex. 129-143 NOTES ON TEXAS EEPOBTS. 204 

her right against plaintiff until plaintiff showed sufficient title; 
McLean ▼. Smith, 106 N. C. 177, 11 S. E. 185, possession of property 
raises presumption that possessor entered under right. 

Policy of Liznitation l8 to Compel Owners of land to make entry 
thereon, at the peril of being ousted by those who would settle and 
improve the country. 

Approved in Bracken v. Jones, 63 Tex. 186, reaffirming rule. See 
note, 15 L. B. A. (n. s.) 1229. 

Limitations Barring Right of Entry against naked possessor are 
not dependent on possessor's good faith. 

See note, 15 L. H. A. (n. s.) 1254. 

Adverse Possession for Statutory Period gives good title when it 
is actual, open, continuous, notorious and hostile. 

See note, 15 L. B. A. (n. s.) 1191. 

32 Tez. 12&-1S0, COOKE v. BUBNHAM. 

When a Jndgment is a KnlUty, it may be enjoined notwith- 
standing twelve months having elapsed since its rendition. 

Approved in Thompson v. Bohannon, 38 Tex. 245, not error to 
grant injunction restraining enforcement of judgment enforcing con- 
tract payable in Confederate money; Glass v. Smith, 66 Tex. 550, 
2 S. W. 196, void punishment may be restrained by injunction; Wof- 
ford V. Booker, 10 Tex. Civ. 175, 30 S. W. 69, judgment rendered 
against a person not a party to suit may be enjoined; Smoot v. Judd, 
184 Mo. 576, 611, 83 S. W. 504, 518, relieving against judgment at 
law when sheriff's return is false and defendant had meritorious 
defense. See note, 31 L. B. A. 210. 

Want of Jurisdiction of Court Ov«r Party renderg judgment against 
such party void, and it may be enjoined. 

Cited in note, 54 Am. St. Bep. 244. 

32 Tex. 181-134, AIBHABT V. ICUSPHY. 

A Widow Who waa Execntrix of Her Deceased husband's will re- 
married and her husband joined her in execution of bond; held that 
suit against her and her husband on note of deceased was properly 
brought. 

Approved in Wilson v. Fridenberg, 22 Fla. 150, husband signed 
bond for his wife as executrix; he was held personally liable thereon. 

32 Tex. 136-141, MAI/>NET v. BOBEKT& 

Plea of liimitation was No Answer to Action arising during period 
covered by application of stay ordinance of constitutional conven- 
tion of 1866. 

Approved in Houston etc. B. B. v. Kuechler, 36 Tex. 418, and 
Grigsby v. Peak, 57 Tex. 145, reaffirming rule; Bender v. Crawford, 

33 Tex. 755, 7 Am. Bep. 275, holding ordinance of constitutional con- 
vention of 1866 suspending limitation from 1861 to 1866 not ex post 
facto. 

32 Tex. 141-143, DAILET v. MONDAY. 

An Attorney at Law whose fee is contingent on the success of the 
suit is not a competent witness on behalf of his client when objec- 
tions for that cause are interposed. 

Distinguished in Winston v. Masterson (Tex. Civ.), 27 S. W. 692, 
a judge is not disqualified because his brother, who is attorney for 
one of the parties, has a contingent interest in the result. 



205 NOTES ON TEXAS EEPORTS. 32 Tex. 146-167 

32 Tex. 146-155, PEEVY v. HX7BT. 

It is Well Settled In Teza4i That Land Oertlficates are regarded as 
clioses in possession, and not choscs in action. 

Approved in Miller v. Texas etc. By., 132 U. S. 684, 10 Sup. Ct. Bep. 
213, 33 L. 487, land certificates in Texas, before location, are chattels, 
and may be sold by parol assignment. 

Purcliaser of Unpatented Land Certificate from administrator ac- 
quires same with all its incidents with land located and surveyed 
thereunder. 

Overruled in East ▼. Dugan, 79 Tex. 330, 15 S. W. 274, holding 
that sale of certificate, by administrator, after patent has been is- 
sued, does not convey land. 

82 Tez. 155-157, STATE v. STEPHENS. 

Wlieie Party Steals His Own Property from a bailee, who has lien 
on same, he is guilty of theft. 

Approved in Lewis v. State, 50 Tex. Cr. 333, 97 S. W. 482, evidence 
that defendant pawned pistol to person alleged to be owner and in 
whose possession it was at time it was stolen, is sufiicient in prosecu- 
tion for theft; People v. Cain, 7 Cal. App. 167, 93 Pac. 1039, taking 
heifer by owner from agistor entitled to hold same under lien for 
pasturage, with intent to deprive latter thereof, is larceny. See notes, 
37 Am. Dec. 278; 88 Am. St. Bep. 596; 12 L. B. A. (n. s.) 94. 

82 Tez. 157-159, PBIM V. STATE. 

Onr Code baa Dispensed With the Common-law Word 'Telonlonsly,'* 
and substituted "fraudulently," as expressive of criminal intent in 
indictment for theft. 

Approved in Jorasco v. State, 6 Tex. Ap. 240, reaffirming rule; 
Beard v. State, 47 Tex. Cr. 194, 83 S. W. 827, where Oklahoma stat- 
ute defines theft as taking by fraud or stealth, and court used word 
"fraudulently" as employed in Texas statute, defendant cannot com- 
plain. 

BemoYal of Property is not Necessary to constitute the erime of 
theft in this state. 

Approved in Hall v. State, 41 Tex. 288; Austin v. State, 42 Tex. 
347, reaffirming rule. Cited in note, 57 Am. Dec. 272. 

32 Tez. 15&-164, STATE ▼. BOBEBTSOK. 

Burglary may be Committed In the Daytime by entering a house 
with intent to commit a felony. 

Approved in Conoly v. State, 2 Tex. Ap. 417, in charging burglary 
it would be better practice to allege whether entry was made in 
daytime or night-time. 

To Constitute Bnrfi^ary, the Entry must be made with felonious 
intent. 

Approved in Simms v. State, 2 Tex. Ap. 114, reaffirming rule; 
Beed v. State, 14 Tex. Ap. 666, not necessary for indictment for 
burglary to charge entry was made "feloniously" or "burglariously." 

82 Tez. 164-167, aBIFPIM' ▼. STATE. 

Where Wife Testified for Husband, but state's attorney was not 
permitted to cross-examine her, but commented upon such fact in 
argument^ held not error to permit such comment. 



32 Tex. 167-195 NOTES ON TEXAS REPORTS. 206 

Overruled in Creamer ▼. State, 34 Tex. 174, holding when hus- 
band or wife testify for each other, he or she should be subjected 
to rigid cross-examination. 

32 Tez. 167, STATE v. SMITH. 

The Offense of Fornication, not having been sufficiently defined by 
the Criminal Code, is not punishable. 

Approved in Wolff v. State, 6 Tex. App. 195, reaffirming rule. 

Distinguished in Ex parte Bergen, 14 Tex. Ap. 55, where act, eo 
nomine, is made penal offense and penalty affixed, it becomes an 
offense punishable by law; and State v. Randle, 41 Tex. 293, 294, 
where offense charged was establishing and maintaining a lottery, 
which court held was defined by law. 

Miscellaneous. — See note, 26 L. R. A. 704. 

32 Tez. 170-181, HABGBOVE v. DE LISLE. 

The Stay Laws . Declared by Governor Hamilton, and the act of 
convention of 1866, deferred collection of debts by execution until 
such acts were declared unconstitutional by supreme court in 1868. 

Approved in McGary v. McKenzie, 38 Tex. 216, suit filed in 1865 
on note that fell due in 1862 or 1863 was in sufficient time to pre- 
vent bar of limitation. 

Levy of Execution from United States Court in 1861 created lien 
which subsisted, without another execution, until 1867. 

Approved in Williams v. Murphy, 36 Tex. 175, and Houston etc. 
R. R. V. Kuechler, 36 Tex. 418, both reaffirming rule. 

Purchaser of Land With Notice of Judgment Lien stands in same 
relation thereto as his vendor. 
Approved in Delespine v. Campbell, 52 Tex. 11, reaffirming rule. 

32 Tez. 183-185, VAN DEB HOVEN v. NETTE. 

Receipt of Confederate Money in Payment of Debt, because party 
stood in fear of rebel authorities if he refused, is not sufficient 
duress to enable party to re-collect the debt. 

Approved in Davis v. Mississippi etc. R. R., 46 Miss. 567, reaffirm- 
ing rule. 

Distinguished in Olivari v. Monger, 39 Tex. 78, where general 
orders from military commander meant violence to those who re- 
fused to receive Confederate money. 

32 Tez. 185-187, SACRA v. STEWART. 

Exclusion of Evidence, Which waa Admitted by Pleadings of op- 
posite party, is no cause for reversal of «ase. 

Approved in Burnham v. Walker, 1 Tex. Ap. Civ. 512, evidence 
erroneously excluded, on an immaterial pointy no cause for grant- 
ing new trial. 

32 Tez. 190-195, THOMPSON V. EANE8. 

Petition Misdescribing Date of Note Sued on should be amended 
BO as to give correct date. 

Cited in Malin v. McCutcheon, 33 Tex. Civ. 390, 76 S'. W. 588, 
petition failing to allege several items making up aggregate balance 
of account not cured by its reference to annexed exhibit. See note, 
76 Am. Dec. 101. 



207 NOTES ON TEXAS REPORTS. 32 Tex. 195-211 

S2 Tez. 195-200, FOBBES V. MOOBE. 

Petition in Suit for Conversion of Personal Prot^erty must de- 
scribe the property and give value of each article. 

Approved in Shaw v. Adams, 2 Tex. Ap. Civ. 152, petition should 
state value of each article of property separately. 

Dnrin^^ Insanity of Husbanc^ the wife is head of family and has 
right to dispose of community property, and in absence of common 
property, separate property of husband, to obtain necessaries for her- 
self and children. 

Approved in Heidenheimer v. Thomas, 63 Tex. 290, reaffirming 
rule; Zimpelman ▼. Robb, 53 Tex. 281, where husband deserts ov 
ceases to support his wife, her sale of community property will 
be valid; Texas etc. Ry. v. Bailey, 83 Tex. 24, 18 S. W. 482, when 
plaintiff becomes insane, it is error to permit his wife to prosecute 
the snit to judgment in her own name; Fermier v. Brannan, 21 
Tex. Civ. 545, 548, 53 S. W. 701, 702, where husband abandons 
his wife, she may mortgage community property for necessaries; 
Rider v. Regan, 114 Cal. 680, 46 Pac. 824, sale of community prop- 
erty by wife, while husband was insane, good as to innocent pur- 
chasers. See notes, 60 Am. Dec. 205; 64 Am. St. Rep. 870; 34 L. R. 
A. 223, 225, 226. 

S2 Tez. 200-202, STATE v. EVANS. 

Liability of SnretieB on Bond is Matter of Strict Law, and cannot 
be extended by implication or intendment. 

Approved in Evans v. State, 36 Tex. 323, and Wood v. Hollander, 
84 Tex. 397, 19 S. W. 552, both reaffirming rule. 

32 Tez. 202-204, QABBAHY V. GBEEN. 

Dedarationa of Party to Sale After Sale is Completed is not ad- 
missible to in any wise affect title to the property. 

Approved in Thornton v. Tandy, 39 Tex. 548, and Hinson v. Walker, 
65 Tex. 106, both reaffirming rule. 

S2 Tez. 204-208, ALDBIDGE v. BIABDOFF. 

In Salt on Note Against Maker and Indorser, where maker dies 
and plaintiff dismisses as to maker and takes judgment against in- 
dorser, held to be correct proceedings. 

Approved in Boggs v. State, 46 Tex. 12, reaffirming rule. See note, 
18 L. R. A. (n. s.) 542. 

Erery Act of the Legislature most be so Construed, if possible, 
as to give effect to each and all its provisions. 

Approved in Lehman v. Robinson, 59 Ala. 235, and In re Leasing 
of State Lands, 18 Colo. 365, 32 Pac. 988, both reaffirming rule. 

It is a Matter of Discretion in the court below to entertain motion 
for new trial when filed after time had elapsed for filing same. 

Approved in Davis v. Zumwalt, 1 Tex. Ap. Civ. 319, reaffirming 
rule. 

Where Verdict and Name of Foreman of Jury are not in judgment, 
the same may be supplied by amendment by the court below. 

Cited in following note: 58 Am. Dec. 136. 

32 Tez. 208-211, 5 Am. Bep. 242, MILLEB v. BTJBCH. 

Corporation can Ezercise Only Such Powers as are delegated to it 
by act of incorporation, or necessarily arise by implication. 



32 Tex. 212-226 NOTES ON TEXAS REPORTS. 208 

Approved in Ex parte Robinson, 30 Tex. Ap. 494, 17 S. W. 1058, re- 
affirming rule. See note, 36 L. R. A. 593, 601. 

The Term "Nuisance" is Well Understood, and means, literally, 
annoyance — anything that worketh hurt, inconvenience, or damage. 

See notes, 124 Am. St. Rep. 593; 107 Am. St. Rep. 199; 67 Am. Dee. 
669. 

Distinguished in dissenting opinion in Tate v. Greensboro, 114 N. C. 
413, 19 S. E. 773, 24 L. R. A. 671, majority holding municipal corpora- 
tion has right to remove shade trees constituting nuisance. 

The House in Which a Nuisance is Maintained is protected by law 
from being proceeded against in summary manner. 

Approved in Town of Cuba v. Mississippi Oil etc. Co., 150 Ala. 265, 
43 So. 708, enjoining enforcement of ordinance declaring buildings 
used for storage of cotton-seed nuisances and ordering owners to re- 
move same before specified date, on pain of demolition by town at 
owner's expense; Shepard v. People, 40 Mich. 492, property consti- 
tuting nuisance cannot be destroyed until lawfully ascertained. See 
note, 38 L. R. A. 166. 

Where Use to Which Building is put constitutes nuisance, remedy 
is to stop use and not to demolish building. 
See note, 38 L. R. A. 166, 168, 169. 

Ordinance not Warranted by charter, being void, it furnishes no 
justification to persons acting under its authority. 
See note, 36 L. R. A. 607. 

32 Tex. 212-214, CABTEB V. QBIFFEN. 

Petition for Injunction to Restrain judgment by default on account 
of failure of service should negative appearance by defendant. 

Approved in Gillis v. Rosenheimer, 64 Tex. 246, petition for in- 
junction should negative every reasonable inference that would de- 
feat relief sought; Harrison v. Crumb, 1 Tex. Ap. Civ. 554, 555, 
petition for injunction should state all, and negative all facts neces- 
sary for relief sought. See note, 31 L. R. A. 211. 

32 Tez. 215-218, HEILBBONEB V. DOUGLAS. 

Client is not Bound by Acts of his attorney done in pursuance of 
a fraudulent confederation with the opposing party. 

Approved in Roller v. McGraw, 63 W. Va. 468, 60 S. E. 413, follow- 
ing rule. 

Distinguished in Malry v. Grant (Tex. Civ.), 48 S. W. 616, where 
no collusion on part of the attorney was shown. 

32 Tez. 218-225, HOWE v. BOQEBS. 

Where Vendee Under Contract for Purchase of Land when patent 
was issued removed from state, leaving tenant in possession, who 
moved off land, leaving same vacant for several years without ven- 
dee's knowledge, held not sufficient laches to prevent enforcement of 
contract, against vendor's heirs to whom patent had meanwhile issued. 

Cited in following note; 53 Am. Dec. 541. 

32 Tex. 225-226, SHEFFIELD v. OAT. 

Writs of Attachment Best Exclusively upon the statute, and condi- 
tions precedent to their issuance must be strictly complied with. 
Approved in Moody v. Levy, 58 Tex. 533, reaffirming rule. 



209 NOTES ON TEXAS REPORTS. 32 Tex. 229-273 

32 Tex. 229-230, BXTBLESON v. aOODMAN. 

Private Entries of a Party Mad« by Himself in the regular routine 
of his business are considered as legal testimony. 

Approved in Baldridge v. Penland, 68 Tex. 446, 4 S. W. 567, evi- 
dence to identify things sold with entries in book is necessary to ad- 
mit book in evidence. See note, 52 L. R. A. 548. 

Entries in Books of Account are admissible if court on inspection 
of books finds they, are honestly kept and entries regularly made. 

See note, 52 L. R. A. 608. 

32 Tez. 231-250, EBOBN ▼. CANNON. 

Recitation of Payment of Consideration in a title bond is not a 
conclusive presumption of payment. 

Approved in Northington v. Tuohy, 2 Tex. Ap. Civ. 283, parol evi- 
dence not admissible to contradict recitals of consideration in deed 
as between vendor and vendee. 

Mortgage Executed Contemporaneoualy With Notes, to secure their 
payment, is not barred by limitation until the notes are barred. 

Approved in Daggs v. Ewell, 3 Woods, 349, Fed. Cas. 3537, reaffirm- 
ing rule; Ewell v. Daggs, 108 U. S. 147, 2 Sup. Ct. Rep. 410, 27 L. 
682, foreclosure of mortgage cannot be had where debt is barred by 
limiUtion; Moline Plow Co. v. Webb, 141 U. S. 626, 12 Sup. Ct. Rep. 
102, 35 L. 879, where note is barred by limitation creditor is without 
remedy to foreclose; Stephens v. Shannon, 43 Ark. 468, bar of debt 
bars mortgage securing it. 

District Court has Power to Correct Description of mortgaged prem- 
ises on satisfactory proof of the mistake. 

Cited in note, 76 Am. Dec. 114. 

32 Tex. 261-255, WABD v. BLEDSOE. 

It has Been the Constant and Unvarsrlng Practice of the courts not 
to disturb the verdicts of juries, if any testimony was adduced upon 
which they might base their findings. 

Modified in Simonton v. Forrester, 35 Tex. 585, rule announced in 
Ward & Co. v. Bledsoe Ss Clarkson as to rule for granting new trials 
not applicable to district courts. 

32 Tez. 25e-257, SMITH v. FBEDEBICK. 

Petition for Dijunction to Bestrain Sheriff from levying execution 
on certain property alleging petitioner has other property subject to 
execution is insufficient when no property is pointed out. 

Approved in Gillis v. Rosenheimer, 64 Tex. .246, Alexander t. 
Banner, 10 Tex. Civ. 113, 30 S. W. 564, reaffirming rule; Eingsland v. 
Harrell, 1 Tex. Ap. Civ. 404, petition must show that an effort was 
made to point out other property to be levied upon; Stamps v. Mc- 
Clelan, 1 Tex. Ap. Civ. 409, sheriff may levy execution on property 
without making demand on defendant. See note, 30 L. R. A. 102. 

32 Tez. 258-273, WACO V. POWELL. 

The Mayor and Board of Aldermen of the city of Waco have power 
to enact ordinances impounding hogs running at large upon its streets. 

Approved in Moore v. Crenshaw, 1 Tex. Ap. Civ. 105, and Coyle 
V. McNabb, 4 Tex. Ap. Civ. 490, 18 S. W. 199, both reaffirming rule; 
Moore v. Crenshaw, 1 Tex. Ap. Civ. 106, horse impounded and sold 
by city in accordance with ordinance passes with perfect title to pur- 
chaser; Greer v. Thompson, 4 Ga. App. 758, 62 S. £. 501, upholding 

2 Tex. Notes— 14 



32 Tex. 273-289 NOTES ON TEXAS EEPOBTS. 210 

power of council of Colquitt to pass ordinance prohibiting cattle from 
running at large in city limits irrespective of whether or not county 
in which city situated had adopted &tock law; Crura v. Bray, 121 Ga. 
714, 49 S. E. 688, upholding ordinance relating to impounding of hogs 
running at large and selling of same after ten days' notice by adver* 
tising unless redeemed; Mayor of CartersTille v. Lanham, 67 Ga. 755, 
city has authority to pass and enforce ordinance prohibiting stock to 
run at large on streets; Wilson v. Beyers, 5 Wash. 306, 34 Am. St. Rep. 
860, 32 Pac. 91, proceeding to sell impounded stock is an action in rem. 
See notes, 90 Am. St. Rep. 217; 39 L. R. A. 676; 4 L. R. A. 254. 

32 Tex. 273-276, STATE v. AU.EN. 

The District Attorney had No Bight to Agree to a judgment in suit 
by state against a tax collector for an amount less than what is actu- 
ally due. 

Approved in State v. California Mining Co., 15 Neb. 246, district 
attorney has no power to remit penalties in suit for taxes. 

32 Tex. 276-279, 6 Am. Bep. 244, HADDOCK v. CBOCHEBON. 

After Dissolution of Partnership, one partner cannot bind the other 
partner by new agreement with a partnership creditor. 

Approved in Woodson v. Wood, 84 Va. 482, 5 S. E. 279, reaffirming 
rule; Bank of Montreal ▼. Page, 98 111. 120, dissolution of partner- 
ship revokes power of either partner to bind firm by new agreement 
with creditor; Nat. Union Bank v. Hollingsworth, 135 N. C. 570, 47 
S. E. 623, surviving partner cannot after dissolution bind firm by 
indorsement in firm name for renewal of notes outstanding similarly 
indorsed. Cited in following notes; 6 Am. Dec. 574; 76 Am. Dec. 127; 
40 Am. St. Rep. 565; 15 L. R. A. 660. 

Limitation Began to Bun Against Note in 1857, continuing until 
amended petition filed in 1868; held same was barred by limitation 
of four years, although time from March 2, 1861, to September 2, 
1866, was subtracted. 

Approved in Grigsby v. Peak, 57 Tex. 145, ordinance of constitu- 
tion of 1866 suspending limitation is valid. 

32 Tex. 281-282, JOPUNG V. TUBNEB. 

Suit Brought March 27, 1866, on Note Dne January 1, 1862, held 
to relieve indorsers on account of suit not being brought at first term 
at which suit could be filed. 

Approved in Stratton v. Johnston, 36 Tex. 93, suit not brought at 
first term of court, after war relieves indorsers. 

32 Tex. 282-286, HIGGINS V. FBEDEBICK. 

Where Petition Discloses the Fact that defendant resides in another 
county, an exception thereto in nature of plea in abatement ought to 
have been sustained. , 

Approved in Turman v. Robertson, 3 Tex. Ap. Civ. 262, plea in 
abatement on account of residence of one of defendants being in 
another county must be sworn to. 

32 Tex. 286-289, BOUNDTBEE v. THOMAS. 

The Husband cannot be Made Uable for the debts of the wife con- 
tracted before marriage. 

Overruled in Taylor v. Murphy, 50 Tex. 295, holding debts of wife 
contracted before marriage could be made out of community property. 
Cited in note, 60 Am. Dec. 260. 



211 NOTES ON TEXAS BEPOBTS. 32 Tex. 290-338 

Separate Property of Wife, Though Placed by law under control of 
husband, is still liable for wife's debts contracted before marriage. 

Approved in Tarlton ▼. Weir, 1 Tex. Ap. Civ. 58, reaffirming rule. 

Judgment is Properly Bendered Against Husband and Wife for her 
debts contracted before marriage, but should be ordered to be levied 
on wife's separate property. 

Cited in note, (SO Am. Dec. 263. 

S2 Tez. 290-294, SMITH V. KAIiE. 

Appeal ftom Judgment Bendered in County Court does not vacate 
lien secured by such judgment against debtor's real estate. 

Approved in Thulemeyer v. Jones, 37 Tex. 571, and Semple v. 
Enbanks, 13 Tex. Civ. 421, 35 S. W. 510, both reaffirming rule. 

32 Tex. 294-310, FBAIM v. FBEDEBICE. 

Party Who has Purchased Land and Beceived Deed, but has not 
paid the consideration, is not an innocent purchaser for valuable con- 
sideration. 

Approved in Hutchins v. Chapman, 37 Tex. 615, innocent purchaser 
must have paid consideration before notice of prior lien. Cited in 
noie^ 12 Am. Dec. 212. 

32 Tex. 310-^27, CAIiDWELIi V. FBAIM. 

A Deed Betaining a Lien in the Nature of a Contract of convey- 
ance does not give vendee right of possession until the stipulations 
and conditions are discharged. 

Approved in Tate v. Kramer, 1 Tex. Civ. 434, 23 S. W. 257, subse- 
quent purchaser without notice of prior equity having paid part of 
consideration is liable to holder of such equity for remainder of pur- 
chase money; King v. Young Men's Assn., 1 Woods, 391, 392, Fed. 
Cas. 7811, a holder of vendor's lien has no right to possession of the 
property. 

Distinguished in Baker v. Compton, 52 Tex. 261, holder of purchase 
money note has no right to possession of property. 

32 Tex. 328, HENDLET V. BACCUS. 

Citation in Error not Bequiring the Party to Appear at some des- 
ignated term of supreme court is fatally defective. 

Approved in Hunt v. Schrieb, 37 Tex. 632, reaffirming rule. 

32 Tex. 829-330, JONES v. LEATH. 

Where Survey Calls for Fixed and marked natural object and also 
in same call for line of another survey, former controls. 

See note, 129 Am. St. Bep. 1006. 

32 Tex. 331-333, MITCHELL v. HABBISON. 

The Care of the Minor Children Forms no part of the administra- 
tor's duties. 

Cited in note, 78 Am. St. Bep. 174. 

32 Tex. 333-338, 6 Am. Bep. 245, BITCHIE ▼. SWEET. 

Holder of Note Surrendering Same to Maker in 1862 on payment of 
tmount thereof in Confederate money, held, that in absence of actual 
duress, such payment discharged the note. 

Approved in Burleson v. Cleveland, 32 Tex. 397, reaffirming rule; 
Olivari v. Monger, 39 Tex. 80, holding conveyance, the consideration 
of which was paid in Confederate money^ under duress could be can- 
celed. 



32 Tex. 338-370 NOTES ON TEXAS EEP0BT8. 212 

32 Tex. 338^54, GOULD v. WEST. 

Under Act of 1851, a grant by the state of lands to one who is 
dead vests title in his heirs. 
Reaffirmed in Dick v. Malone, 24 Tex. Civ. 99, 58 S. W. 169. 

Wliere Ancestor Wrongfully Conveyed Land with covenant of war- 
ranty, such conveyance was held to conclude his heirs in suit by them 
for recovery of the land. 

Approved in Irion v. Mills, 41 Tex. 315; French v. Strumberg, 52 
Tex. 109, Baldwin v. Root, 90 Tex. 554, 40 S. W. 6, and Kircher v. 
Murray, 60 Fed. 52, all reaffirming rule; Grigsby v. May, 84 Tex. 254, 
19 S. W. 348, patent to heirs of deceased, without naming them, was 
sufficient to support statute of limitation of three years; Kircher v. 
Murray, 54 Fed. 626, the question of descent and distribution is 
governed by law in force at time of death of ancestor. See note, 15 
L. R. A. (n. s.) 1224. 

32 Tez. 365-369, OAUDLE ▼. WELDEN. 

Husband and Wife Settled in Peters' Colony in 1844, where she died 
in 1847; in 1850 husband obtained certificate to six hundred and forty 
acres of land; held that same was his separate property. 

Approved in McReynolds v. Bowlby, 1 Posey U. C. 464, property 
granted to husband after death of wife is his separate property. See 
notes, 126 Am. St. Rep. 119; 96 Am. St. Rep. 919. 

Overruled in Hodge v. Donald, 55 Tex. 354, holding property 
granted to husband after death of wife was community property. 

32 Tex. 360^^63, MILLS v. VON BOSKIBK 

Husband and Wife Leaving Homestead in B^ County and going 
to Mexico for purpose of living, but returning to homestead two years 
later, held not an abandonment thereof. 

Approved in Re Pratt, 1 Flipp. 355, Fed. C^s. 11,370, reaffirming 
rule; Smith v. Bunn, 75 Mo. 561, right of homestead ceases when 
abandoned by occupant with intention not to return. See note, 102 
Am. St. Rep. 406. 

32 Tex. 368, HICKS ▼. 8TATR 

Indictment for Unlawfully Using an Bstray, which fails to charge 
such acts were done "without complying with the laws regulating 
estrays," is defective. 

Reaffirmed in Riviere v. State, 7 Tex. Ap. 57. 

Wliere Recognizance Describes the Offense in same manner as the 
indictment, it is sufficient. 

Reaffirmed in Alford v. State, 37 Tex. Cr. 387. 

82 Tex. 369-370, LANE V. ELUKaEK 

Without a Final Judgment in a Case, there can be no appeal. 

Approved in Fulcher y. State, 38 Tex. 560, without final judgment 
there can be no appeal. 

Cited in dissenting opinion in Fulcher v. State, 38 Tex. 512, ma- 
jority holding no appeal will lie in criminal case until entry of judg- 
ment. 

So Long as the Proceedings were in Fieri the court had power at 
common law to enter judgment nunc pro tunc. 
Cited in note, 65 Am. Dec. 132. 



213 NOTES ON TEXAS BEP0RT8. 32 Tex. 378-396 

92 Tex. 878-380, FENNELL v. STATE. 

Sodomy, or tlie Abominable and Detestable Crime against nature, 
not being sufficiently defined by Code of Criminal Procedure, is not 
punishable. 

Approved in Frazier ▼. State, 39 Tex. 390, reaffirming rule. 

Distinguished in State v. Bandle, 41 Tex. 293, where defendant was 
charged with establishing and maintaining a lottery; and Ex parte 
Bergin, 14 Tex. Ap. 55, 56, holding under amendment of Criminal 
Code the offense of sodomy was sufficiently defined. 

32 Tex. 386-888, B0BEBT8 V. BANE. 

Di Bolt on Note Made by Three Parties jointly, and after maturity 
thereof one of the defendants executed deed of trust to secure same, 
held that taking such security did not relieve one of the parties, who 
claimed only to be surety. 

Approved in Pratt v. Conway, 148 Mo. 298, 71 Am. St. Bep. 606, 49 
8. W. 1030, vendee assuming payment of mortgage becomes directly 
liable therefor. Cited in note, 58 Am. Dec. 108. 

Sttretys hlp cannot be Set Up tm a Defense by an apparent principal 
in a suit on a promissory note signed by the party and another, un- 
less plaintiff was aware of such suretyship. 

Beaffirmed in Coffin v. Loomis (Tex. Civ.), 41 S. W. 511. See notes, 
20 L. B. A. 712; 3 L. B. A. 863. 

82 Tax. 388-889, HOPFE V. STATE. 

Wliere Defendant was Convicted of an offense, but judgment was 
not entered, it is held defendant may appeal from judgment over- 
ruling his motion for new trial. 

Cited in dissenting opinion in Fulcher v. State, 38 Tex. 512, major- 
. ity holding no appeal would lie where final judgment was not entered 
on verdict. See note, 28 L. B. A. 628. 

Overruled in Fulcher v. State, 38 Tex. 506, holding that where no 
final judgment was rendered on verdict no appeal would lie; and 
Mayfield v. State, 40 Tex. 290, holding defendant in criminal case 
could not appeal until judgment of conviction was entered. 

82 Tex. 390-392, SOHUIiTZ V. HEBNDON. 

Where There is Legal Bevenne Stamp upon instrument, whether 
canceled or not, it is sufficient to entitle the party to use it in evi- 
dence. 

Approved in Mays v. Butledge, 37 Tex. 135, reaffirming rule; dis- 
senting opinion in Makainai v. Goo Wan Hoy, 14 Haw. 686, majority 
holding instruments not stamped when made can be legally stamped 
afterward only by going before collector. See notes, 84 Am. St. 
Bep. 187; 48 L. B. A. 305, 319. 

Paye« as Well as Maker of Note may cancel revenue stamp. 
See note, 84 Am. St. Bep. 197. 

32 Tex. 892-896, 8T0LTE v. HEBNDON. 

Since Judicial Notice Taken of Fact that revenue office not open in 
Texas in 1865, instrument executed in Texas in that year may be 
stamped by party at any time prior to 1867. 

See note^ 48 L. B. A. 315. 



32 Tex. 398-434 NOTES ON TEXAS REPORTS. 214 

32 TesL 398-404, STOBT v. BUNKLE. 

Where Judgment was Obtained on October 29, I860, writ of error 
proceeding, filed October 18, 1866, was not filed in time, and was not 
authorized by ordinance of 1866. 

Approved in Hart v. Mills, 38 Tex. 515, prosecution of writ of 
error is not a new suit but continuatioi^ of original cause; McAnear 
V. Epperson, 54 Tex. 226, suspension of statute of limitation by con- 
stitution of 1869, not applicable to writs of error. See note, 45 L. 
R. A. 614. 

Overruled in Bender v. Crawford, 33 Tex. 755, 7 Am. Rep. 275, 
holding opinion in Story v. Runkle as to limitation was obiter dicta 
and not authority. 

32 Tex. 405-417, SAN ANTONIO ▼. liANE. 

Judgment in Favor of Bondholder, validating certain municipal 
bonds, part of a larger issue, is conclusive on question of validity in 
another suit by same bondholder on other bonds of same issue. 

Approved in Webster v. Mann, 56 Tex. 123, applying rule where 
judgment determined validity of deed. 

Legislature may Authorize Municipal Corporations to subscribe for 
stock in railroad companies, and to provide for payment of sarne.^ 

Approved in San Antonio v. Mehaflfy, 96 U. S. 314, 315, 24 L. 816, 
and Miller v. Perris, 99 Fed. 146, both reaffirming rule; Harcourt v. 
Good, 39 Tex. 475, payment of subscription of county to build railroad 
bridge across river may be enforced. Cited in following notes; 59 
Am. Dec. 783, 67 Am. Dec. 686, and 3 Dill. 209. 

When an Act of the Iiegislatnre Bzpresses in its title the object 
of the act, the title embraces and expresses any lawful means to 
achieve the object. 

Approved in Abington v. Cabeen, 106 Dl. 208, and Floyd v. Per- 
rin, 30 S. G. 9, 8 S. E. 15, 2 L. R. A. 242, both reaffirming rule. Cited 
in following notes: 73 Ain. Dec. 218, and 64 Am. St. Rep. 75. 

Distinguished in San Antonio v. Gould, 34 Tex. 73, 74, holding void 
act of 1850, relating to incorporation of San Antonio Railroad and 
authorizing incorporated towns to issue aid bonds; Giddings v. San 
Antonio, 47 Tex. 552, 26 Am. Rep. 323, failure of act, incorporating 
San Antonio and Gulf Railroad Company, to fully state purposes in 
caption, renders act unconstitutional; Peck V. San Antonio, 51 Tex. 492, 
493, failure of act incorporating San Antonio and Gulf Railroad Com- 
pany to fully state purposes in caption renders act unconstitutional; 
and Charleston v. Oliver, 16 S. C. 56, act not fully embracing its ob- 
ject in its title is void. 

A Bona Fide Holder of Bonds for valuable consideration cannot be 
held responsible for the misconduct or default of the parties issuing 
them. 

Approved in City of Vicksburg v. Lombard, 51 Miss. 127, where 
authorities of city placed bonds on market, city was estopped from 
contesting their validity; Matthews v. Toogood, 23 Neb. 538, 8 Am. 
St. Rep. 132, 37 N. W. 266, no interest allowed on coupons in excess 
of that allowed by law. See notes, 64 Am. Dec. 430, 441« 

82 Tez. 419-434, MATHEWS v. BUBKE. 

Where Tenant had Sold Part of Mortgage Crop, and landlord sued 
purchaser for same, held that lien in favor of landlord existed even 
after crop was removed from rented premises. 



215 NOTES ON TEXAS EEPORTS. 32 Tex. 434-457 

Approved in Click t. Stewart, 36 Tex. 281, corn remaining on 
rented premises three months after expiration of rental term is sub- 
ject to landlord's lien; Schultz v. Spreeain, 2 Posey U. G. 211, distress 
bj statute is allowed to landlord against tenant for rent. 

In Suit by Landlord Against Purchaser of a part of tenant's crop, 
held that lien in favor of landlord was good until the first day of 
January next after maturity of crop. 

Approved in Pace v. Sparks, 1 Posey U. C. 405, landlord's lien gives 
him no right to tenant's property; American Cotton Co. v. Phillips, 

31 Tex. Civ. 80, 81, 71 S. W. 320, one purchasing cotton grown by 
tenant on rented premises, within thirty days from its removal there- 
from, not protected against landlord's lien, though without actual 
notice of lien; Mitchell v. Monarch Elevator Co., 15 N. D. 500, 107 
N. W. 1086, Eev. Civil Code 1899, c. 83, gives threshers of grain 
lien thereon on filing statement therefor within thirty days from 
threshing, and lien exists from commencement of threshing; Finney 
V. Harding, 136 111. 578, 27 N. E. 290, 12 L. E. A. 605, holding per- 
sonal action for damages not maintainable against purchaser of prop- 
erly from tenant against which landlord's lien had attached. 

32 Tez. 434-439, ELIJ8 v. PONTON. 

Selease of Grantor by Grantee under his warranty of title in deed 
rendered grantor competent witness in suit against grantee by third 
party for the land. 

Approved in Newcomb v. Babb, 2 Tex. Ap. Civ. 666, and holding 
affidavit of jurors to impeach their verdict not admissible for such 
purpose. 

32 T^z. 442-452, CAMPBELL ▼. ICACICANTJS. 

A Homestead of Less Valne than two thousand dollars may be in- 
creased in value up to the limit of two thousand dollars by the ac- 
quisition of adjoining lots. 

Approved in Macmanus v. Campbell, 37 Tex. 267, reaffirming rule; 
Brooks ▼. Chatham, 57 Tex. 33, a tract of land several miles from 
homestead, and not used as part thereof, not exempt from forced sale; 
Heidelbach etc. Co. v. Carter, 34 Tex. Civ. 582, 79 S. W. 348, where 
owner of rural homestead of one hundred and five acres purchased 
other land mile and a half therefrom and used additional land for 
pasture, it became part of homestead; Wilks v. Vaughan, 73 Ark. 
180, 83 8. W. 915, debtor, though not residing on agricultural home- 
stead, may increase it to maximum area in order to protect convey- 
ance thereof from being adjudged fraudulent as to creditors. Cited 
in note, 2 Woods, 662. 

82 Tez. 452-457, ZACHABY v. OBEOOB7. 

Gnardian may Bring and Maintain Suit in his own name and fidu- 
ciary capacity on a note where legal title thereto is in him. ■ 

Approved in Jenkins v. Sherman, 77 Miss. 889, 28 So. 727, reaffirm- 
ing rule; Aldridge v. Pardee, 24 Tex. Civ. 257, 60 S. W. 791, trustee 
holding mere naked legal title may maintain trespass to try title; 
Sanders v. Atkinson, 1 Tex. Ap. Civ. 774, legal owner and holder of 
draft is entitled to judgment thereon; Brewster v. Seeger, 173 Mass. 
283, 53 N. E. 814, party not having legal right to note is not en- 
titled to foreclosure of mortgage securing same. 



82 Tex. 457-484 NOTES ON TEXAS BEPORTS. 21$ 

S2 Tex. 467-459, 6 Am. Bep. 249, ElLLOUaH ▼. ALFOBD. 

Note Tayable in GMd Coin, or the equivalent thereof, in United 
States legal tender notes/' may be paid in either. 

Approved in Bridges v. Beynolds, 40 Tex. 214, note payable in gold 
coin or equivalent, in United States currency, entitles the debtor t<y 
pay in either; Cunningham v. Cauthen, 37 S. C. 136, 15 S. £. 919, 
administrator not chargeable with premium on specie left by intestate. 
See note, 29 L. B. A. 521. 

32 Tez. 460-466, MITCHELL ▼. MEULEY. 

Even When Record is Silent on Subject of Notice, a judgment of a 
court of this state of general jurisdiction will support itself, and can- 
not be collaterally impeached. 

Approved in Black v. Epperson, 40 Tex. 179, Ghiilford v. Love, 49- 
Tex. 742, and M'Connell v. Day, 61 Ark. 475, 33 S. W. 734, all re- 
affirming rule. Cited in note, 86 Am. Dec. 653. 

32 Tex. 472-473, BOETTCHEB ▼. PBUDE. 

Appellate Court will Beyerse and dismiss where there is absolutely 
no evidence to support verdict. 

Approved in Buffner Brothers v. Dutchess Ins. Co., 59 W. Va. 441, 
115 Am. St. Bep. 924, 53 8. E. 947, on reversal for insufficiency of 
evidence appellate court will render judgment for appellant where no 
injustice done thereby. 

82 Tex. 476-477, P08ET T. STATE. 

Under Indictment for Assault to murder, jury found verdict, "not 
guilty as charged, but guilty of aggravated assault"; held, this finding 
was warranted by statute. 

Approved in Lopez v. State, 2 Tex. Ap. 208, reaffirming rule; 
Marshall v. State, 4 Tex. Ap. 553, verdict showing jury's intention 
to acquit defendant of greater crime charged in indictment and con- 
vict him of lesser crime is sufficient. 

32 Tex. 477-478, PETERSON t. STATE. 

Where Appeal has Been Dismissed on an imperfect record, defend- 
ant cannot appeal again. 

Approved in Grant v. State, 8 Tex. Ap. 433, court below has no 
authority to correct recognizance after term; Harris v. State, 2 Tex. 
Ap. 139, where appeal is dismiraed on insufficiency of recognizance, 
court below cannot correct error, so as to allow appeal; Miller v. 
Stato (Tex. Cr.), 26 S. W. 71, a recognizance cannot be amended after 
adjournment of the term at which it was entered. Cited in note, 67 
Am. St. Bep. 51. 

32 Tez. 479-484, HUBOTTEB T. STATE. 

After Panel had Been Accepted, court allowed attorney for state 
to challenge a juror; held, to be matter within discretion of trial 
court, and not reversible error. 

Approved in Santry v. State, 67 Wis. 67, 30 N. W. 227, reaffirm- 
ing rule; Pitt v. Bishop, 53 Mo. Ap. 603, party seeking new trial on 
incompetency of juror must show that incompetency of fcuch juror was 
not within his knowledge when accepted. 

Modified in Baker v. State, 3 Tex. Ap. 530, holding error to per- 
mit district attorney to challenge jurors in a murder case after their 
acceptance. 



217 NOTES ON TEXAS BEPOBTS. 32 Tex. 485-518 

Indictment for Theft of "Two Beeves^ the 8ain« beings cattle, each 
of the value of fifteen dollars," is sufficiently certain in its de^rip- 
tive averment of property stolen. 

Approved in State v. Earp, 41 Tex. 488, and Bobertson ▼. State, 
1 Tex. Ap. 314, both reaffirming rule; State v. Hoffman, 53 Kan. 705, 
37 Pac. 139, information chaining theft of neat cattle held suffi- 
cient; State T. Ballard, 104 Mo. 636, 16 S. W. 526, where indictment 
for theft of cow describes same more fully than necessary, such 
description must be proven; Territory v. Christman, 9 N. M. 587, 58 
Pac. 344, holding term "one best cattle" in indictment for larceny is 
sufficient description. See note, 88 Am. St. Bep. 587. 

32 Tex. 485-487, IBVINE y. BASTBOP. 

An Amendment may Bet Up new cause of action, provided that it 
does not prejudice the other party. 

Approved in Koschwitz v. Healy, 36 Tex. 668, on intervention in 
wit by party claiming to be owner of account rejected by adminis- 
trator more than two years previous, held that account was barred 
by limitation; Perrin v. Malloy Commission Co., 8 Ariz. 407, 78 Pac. 
477, general demurrer may be amended as of right, by alleging matter 
in bar. 

32 Tex. 487-488, POBTEB Y. BUOKHOLTS. 

Note Ezecnted in 1861 and Payable January Ist Thereafter and 
indorsed by maker, suit filed on same in 1866, held, without valid 
reason for not bringing suit sooner, the indorser was released. 

Approved in Stratton v. Johnston, 36 Tex. 93, reaffirming rule; 
McOary v. McKenzie, 38 Tex. 216, suit brought on notes November 27, 
1865, which fell due January 1, 1862, and 1863, was in sufficient time 
to hold indorser. See note, 18 L. B. A. 543. 

32 Tex. 492-495, MOBBIS ▼. HOUSE. 

Assignee Holding Funds 'Under Void Deed of assignment is held 
to be trustee of implied trust, and funds in his hands could be reached 
by creditors by garnishment. 

Approved in Schwartzberg v. Friedman, 12 Tex. Civ. 343, 34 S. 
W. 337, and Citizens' State Bank v. Council Bluffs Fuel Co., 89 
Iowa, 625, 57 N. W. 446, both reaffirming rule; Simon v. Ash, 1 Tex. 
Civ. 210, 20 S. W. 722, where trustee under fraudulent deed of trubt 
sells property, he is liable therefor. 

82 Tex. 495-615, MENIFEE T. HAMILTON. 

A Onardian Becognized by the Judge at the first instance as such 
in sale of land is presumed to be the regular g^uardian of minors. 

Approved in Jones v. Huff, 36 Tex. 683, county court, in 1837, had 
jurisdiction to enforce specific performance of deceased vendor's ex- 
ecutory contract for sale of land. Cited in note, 67 Am. Dec. 698. 

Di&rtinguished in Houston v. Killough, 80 Tex, 306, 16 S. W. 57, 
where deed was made by administratrix under order of court for 
epeeifie performance. 

82 Tex. 516^18, NICHOLS T. HILL. 

Purchaser Under Warranty Deed cannot defend as against indorser 
of purchase money note on ground of mi&itake as to land^ where 
plaintiff did not know of mistake. 

See note, 21 L. B. A. (n. s.) 3DG. 



32 Tex. 518-567 NOTES ON TEXAS REPOETS. 218 

32 Tex. 518-533, VAN AIiSTYNE ▼. BOBUBY. 

In Suit upon Instrument calling for dollars in specie, it is error to 
render judgment for coin. 

Approved in Preston v, Breedlove, 36 Tex. 97, and Smith ▼. Wood, 
37 Tex. 621, both reaffirming rule; Bridges v. Reynolds, 40 Tex. 214, 
note payable "in gold or its equivalent in United States currency," 
entitles debtor to pay in either gold or currency. 

Judicial Notice Taken of Fact that in 1865 federal revenue office 
not in operation in Texas. 
See note, 48 L. R. A. 313. 

32 Tex. 533-635, BODOEBS T. FEBQUSGN. 

The Supreme Court of Tezaa has heretofore given the most liberal 
construction to laws exempting property of citizens from forced sales. 

Approved in Helm v. Pridgen, 1 Tex. Ap. Civ. 347, Robinson v. 
Robertson, 2 Tex. Ap. Civ. 194, reaffirming rule; Betz v. Maier, 12 
Tex. Civ. 221, 33 S. W. 711, business of life insurance agent with his 
iron safe are exempt from forced sale; In re Smith, 96 Fed. 833, 
diamond stud habitually worn by defendant is exempt from forced 
sale. 

The Word "Wagon" Used In the Statute of November 10, 1866, 
should be construed to include all four-wheel vehicles. 

Approved in Cone v. Lewis, 64 Tex. 333, 53 Am. Rep. 768, drayman's 
vehicles held exempt from forced sales. Cited in following notev: 
45 Am. Dee. 255, and 43 Am. Rep. 771. 

Miscellaneous. — Rodgers y. Ferguson, 36 Tex. 545, another phase 
of same case. 

32 Tez. 546-664, CENTRAL BY. CO. T. HEABNE. 

Certified Copy of Enrolled Bill is held to be the best evidenoe 
where there is a conflict between enrolled bill and printed copy. 

Approved in Usener v. State, 8 Tex. Ap. 182, courts are not re- 
quired to scan journals of legislature to as/eertain if a law passed in 
accordance with constitutional requirements; Baldwin v. State, 21 
Tex. Ap. 593, 3 S. W. 110, questioning whether court may go behind 
statute to inquire as to authority by which enacted; £x parte Tip- 
ton, 29 Tex. Ap. 443, 13 S. W. 611, 8 L. R. A. 326, holding that court 
had no right to go behind authenticated statute to inquire into 
validity of its enactment; In re Duncan, 139 U. S. 459, 11 Sup. Ct. Rep. 
576, 35 L. 219, whether certain state statutes have or have not bind- 
ing force is for the state to determine. See note, 23 L. B. A. 348. 

32 Tez. 664-667, DAVIS T. PHILLIP8. 

An Administrator Appointed by the Courts of the state of Alabama 
cannot maintain &uit in his fiduciary capacity in Texas. 

Approved in Terrell v. Crane, 55 Tex. 82, reaffirming rule; Summer- 
hill V. McAlexander, 1 Tex. Ap. Civ. 308, administrator in the state 
of Alabama cannot maintain suit in Texas in his fiduciary capacity; 
Hynes v. Winston (Tex. Civ.), 54 S. W. 1069, applying rule where 
administrator was appointed by Arkansas court. 

To Entitle Executor or Administrator of another state to bring 
suit in this he must first obtain letters testamentary, or of admin- 
i^ration and give bond, as required by law. 

Cited in notCi 35 Am. Dec. 485. 



219 NOTES ON TEXAS REPORTS. 32 Tex. 568-593 

32 Tex. 568-569, CENTRAL BY. T. GEOBGE. 

In Suit by Plaintiff Against Defendant for damages for loss of 
cotton delivered to defendant for shipment, it was held error to render 
judgment for gold coin. 

Approved in Preston v. Breedlove, 36 Tex. 97, reaffirming rule. 

32 Tex. 56&-570, OHAMBEBS y. CHAPMAN. 

A Party npon Whom Process has been served, when not nnder seal, 
maj appear and take advantage of it by motion to quash. 

Cited in note, 47 Am. Dec. 657. 

Procees or Citation Calling upon a Party to answer to a suit when 
not under t/eal is void. 

Approved in Carson Bros. v. McCord-Collins Co., 37 Tex. Civ. 541, 
84 8. W. 391, and Hale v. Gee (Tex. Civ.), 29 S. W. 44, both reaffirm- 
ing rule. See 2 Tex. Ap. Civ. 83, reporter's note. 

Distinguished in Moore v. Perry, 13 Tex. Civ. 209, 35 S. W. 840, 
holding citation without seal of clerk amendable. 

32 Tex. 570-573, DEWEES T. OOLOBADO COUNTY. 

The Courts of This State are Presumed to Know who the executive 
may be at any time when the fact may be called in question. 

Approved in Powers v. Commonwealth (Ky.), 61 S. W. 737, reaffirm- 
ing rule. See notes, 49 Am. Bep. 202; 89 Am. Dec. 683; 4 L. B. A. 38. 

32 Tex. 575-578, AlaDBETE T. DEMITT. 

A Suheequent Promise, to Bemove the bar of the statute of limita- 
tion, must not only contain an acknowledgment of the debt, but muvt 
express a willingness to pay it. 

Cited in following notes; 47 Am. Dec. 675; 5 L. B. A. 743. 

32 Tex. 578-590, 5 Am. Bep. 251, 8HBECK Y. SHBECE. 

Where Marriage Took Place in Texas, but plaintiff went immediately 
to Mexico with her husband, where his residence was, and afterward 
plaintiff returned to Texas and filed suit for divorce, held that Texas 
court had jurisdiction of the case. 

Cited in following notefei; 73 Am. Dec. 622; 26 Am. Bep. 32; 59 L. 
B. A. 143; 16 L. B. A. 499. 

Excesses, Outrages, and Cxndl Treatment affecting the wife, directly 
and personally in mind and body, are causes intended to be relieved 
against by granting divorce. 

Approved in Jones v. Jones, 60 Tex. 460, husband calling his wife 
a prostitute is sufficient ground for divorce; McAlibiter v. McAIister, 
71 Tex. 697, 10 S. W. 295, accusations of adultery made by the wife 
against the husband, though false, are no cause for divorce; Ingersol 
V. Mc Willie, 9 Tex. Civ. 555, 30 S. W. 61, a common-law marriage held 
sufficient to protect rights of wife and child to deceased's ettate. 

Law of Place When Contract Made governs in determining its con- 
struction, enforcement, or validity. 

Approved in Jones v. National Cotton Oil Co., 31 Tex. Civ. 422, 72 
8. W. 249, contract made and to be performed in Arkansas, but void 
under its statute of frauds is unenforceable here, though valid if made 
n performable here. 

32 Tex. 593, SMITH T. STATE. 

Threatening Oestores and Accompanying Words not coupled with 
ability to commit a battery cannot be an assault. 



32 Tex. 594-614 NOTES ON TEXAS BEPOBTS. 220 

Approved in McNamara v. People, 24 Colo. 66, 48 Pae. 543, assault 
with intent to rob may be made by aiming unloaded gun at person 
aseaulted. 

32 Tez. 594-699, SBOTH T. STATE. 

TrQth of Statements Contained in Libelous laetter cannot be set up 
as a defense to criminal prosecution therefor, except they have relation 
to some public office or matter. 

Approved in Goulson v. State, 16 Tex. Ap. 196, letter charged to be 
libelous must be set out in haec verba in indictment. 

Writing Charging One With Being a "hireling murderer" is libelous. 

See note, 13 L. B. A. 420. 

82 Tez. 699^-602, OOLDTHWAITE T. STATE. 

Where Bail Bond Binds Defendant to appear at term of court at 
proper time and place, to answer for offense of a&sault, it is sufficient, 
regardless of the intention of defendant in committing the assault. 

Approved in State v. Becknall, 41 Tex. 320, and G^ry t. State, 11 
Tex. Ap. 531, both reaffirming rule. 

82 Tex. 602-606, HAVEBTY T. STATE. 

Judge Haying Been of Counsel for principal in forfeited bond, in 
the criminal prosecution, is not disqualified to render judgment on 
forfeited bond. 

Approved in Cundiff v. State, 38 Tex. 643, reaffirming rule. 

Bail Bond was Taken by Sheriff of Nueces county during vacation 
of court, and was not filed; at a mbsequent term the court ordered 
it filed nunc pro tunc; held sufficient. 

Approved in Hobbs v. Campbell, 79 Tex. 362, 15 S. W. 282, reaffirm- 
ing rule. 

32 Tez. 609, SINDBED ▼. STATE. 

In Absence of Statement of Facts court can only consider charge 
to ascertain if it is abstractly correct. 

Approved in Talley v. State, 1 Tex. Ap. 689, in absence of state- 
ment of facts appellate court will only examine to a^ertain if in- 
dictment will sustain eharge and finding of jury. 

32 Tez. 610-611, COZ y. STATE. 

Whenever the District Judge considers a verdict of doubtful pro- 
priety, he ought to exercise discretion in granting new trial under rules 
of law when properly applied for. 

Approved in Ethington v. State, 35 Tex. 128, reaffirming rule; 
Phillips V. Territory, I Wyo. 84, holding defendant not entitled to 
new trial because convicted of murder in second degree where evi- 
dence warranted conviction in the first degree. 

32 Tez. 611-614, STATE ▼. BBOCKEB. 

Indictment for Willfully and Wantonly killing and otherwise in- 
juring certain animals need not allege name of owner of such animal. 

Approved in Benson v. State, 1 Tex. Ap. 10, and State v.. Gould, 
26 W. Va. 262, both reaffirming rule; State v. Wilson, 94 N. C. 1018, 
indictments for statutory misdemeanor are generally sufficient when 
they follow language of statute; State v. Leasman, 137 Iowa, 195, 
114. N. W. 1034, in indictment under code, sec. 4810, for maliciously 
throwing stone at railroad train, allegation of possession is sufficient 
allegation of ownership. See note, 128 Am. St. Bep. 174. 



221 NOTES ON TEXAS BEPOBTS. 32 Tex. 614-659 

32 Tez. 614r^S» COTTON ▼. STATE. 

The District Judge is Blade Sole and irresponsible arbiter of the 
sufficiency of the truth or falsehood of alleged causes for change of 
venue. 

Approved in Bowland v. State, 35 Tez. 493, and Holland v. State, 38 
Tex. 480, both reaffirming rule; Barnes v. State, 36 Tex. 640, ap- 
pellate court cannot revise discretionary power of trial court in 
granting or refusing change of venue; Buie v. State, 1 Tex. Ap. 454, 
not error for court to examine witnesses to affidavit for change of 
venue as to source of their information. 

It was not Srror for District Court to receive counter-affidavits 
against application for change of venue, nor additional affidavits in 
support thereof. 

Approved in Winkfield v. State, 41 Tex. 154, court may hear evi- 
dence impeaching application for change of venue; Houillion v. State, 
3 Tex. Ap. 544, counter-affidavits will be received on application for 
continuance. 

Party Failing to Take Bill of XSxceptlon to ruling of court in re- 
fusing continuance cannot have such ruling revised on appeal. 

Approved in Anderson v. State, 42 TeX. 390, and Nelson v. State, 
1 Tex. Ap. 44, both reaffirming rule; Jones v. State, 40 Tex. 189, order 
of court overruling application for continuance must be excepted to. 

Where Court Refused Defendant's Challenge of juror for cause, 
the defendant challenged such juror peremptorily; held not error of 
which defendant could complain, unlera he had been compelled to 
accept an objectionable juror. 

Approved in Loggins v. State, 12 Tex. Ap. 83, reaffirming rule; 
Rothschild v. State, 7 Tex. Ap. 543, juror in capital case having 
formed opinion before hearing evidence is an incompetent juror. 

32 Tex. 644-651, BABBEBA ▼. STATE. 

Bail Bond Taken Before Indictment describing offense as "assault 
with intent to commit murder," and in another clause describing of- 
fense as assault with intent to kill, held sufficient. 

Approved in United States v. Eldredge, 5 Utah, 170, 13 Pac. 678, 
recognizance is Mifficient as to description of offense when it describes 
same in language of statute. 

Bail Bonds Taken After Indictment are sufficient when they in 
plain language describe some offense known to our laws. 

Approved in Vivian v. State, 16 Tex. Ap. 263, reaffirming rule; 
Keppler v. State, 14 Tex. Ap. 174, bail bond or recognizance taken 
after indictment is found must name the offense. 

Bemedy of State for Breach of recognizance is by scire facias. 

See note, 122 Am. St. Bep. 75. 

32 Tez. 661-652, WEST ▼. STATE. 

In Prosecution for Altering Brand, extra-judicial statements of 
owner are not sufficient evidence of his want of consent to alteration. 

Approved in Farris v. State, 43 Tex. Cr. 371, 66 S. W. 300, in 
prosecution for theft, testimony to show owner's want of consent, that 
he testified as prosecutor in preliminary examination, is hearsay. 

32 Tez. 657-659, JEKN T. SPENCER 

Befnsal to Allow Amendment to Pleadings when case called for 
trial, to one who had been allowed two amendments is not abuse of 
discretion* 



32 Tex. 665-731 NOTES ON TEXAS BEPORTS. 222 

Approved in Anthony v. Slay den, 27 Colo. 149, 60 Pac. 827, follow- 
ing rule. 

32 Tex. 665-667, QBAVES ▼. HAIX. 

An Assignment Made in 1858 by one of t^ro partners, conveying 
the firm assets for benefit of the firm creditors, was held valid. 

Approved in Steinhart v. Pyhrie, 5 Mont. 473, 6 Pac. 372, reaflSrm- 
ing rule; Tracy v. Tuffly, 134 U. S. 224, 10 Sup. Ct. Rep. 531, 33 L. 
879, assignment by general partner, in partnership consisting of one 
general and one special partner, held valid; Shattuck v. Chandler, 
40 Kan. 518, 10 Am. St. Rep. 228, 20 Pac. 226, the right of one part- 
ner to make an assignment depends upon consent of the other co- 
partner. See note, 2 L. R. A. 328. 

82 Tex. 670-679, WOOD T. WILLIS. 

Creditor Living In Texas in 1862, receiving payment of his debt in 
Confederate money, without objection, cannot treat payment as void 
and recover for debt on grounds of duress. 

Approved in Olivari v. Menger, 39 Tex. 79, reaffirming rule. 

32 Tex. 67^685, CLARKE Y. KOEHLEB. 

Original Plaintiff In Suit cannot sell out his interest pendente lite 
and make new plaintiffs to the suit. 

Approved in Ennis v. Bestwick, 37 Tex. 667, reaffirming rule; 
Koschwitz V. Healy, 36 Tex. 668, plea of intervention setting up claim 
against administrator which had been rejected two years and a half 
ought to have been dismissed; Bentinck v. Franklin, 38 Tex. 472, 
holding there was no law in force in Texas prohibiting champerty; 
Anheier v. Signor, 8 N. D. 501, 79 N. W. 984, a purchaser pendente lite 
in North Dakota may prosecute appeal in his own name by permibsion 
of court. Cited in note, 3 McCrary, 68. 

32 Tex. 685-712, WEBSTER v. HEARD. 

Where Slave Emancipated by Will which bequeathed lands to her 
to be held in trust by trustee, her conveyance without trustee is 
valid. 

Overruled in Webster v. Corbett, 34 Tex. 266, conveyance of land 
devised to slave in trust is void where will emancipated b'lave but 
latter did not leave state. 

32 Tex. 712-717, DEVOE ▼. STEWART. 

In Suit for Breach of Contract for services in boring oil-wells, it 
was held that attachment was properly issued. 

Approved in Hereford Cattle Co. v. Powell, 13 Tex. Civ. 499, 36 S. 
W. 1035, reaffirming rule. 

32 Tex. 717-723, JONES ▼. RITTER. 

Miscellaneous. — Mullally v. Ivory (Tex, Civ.), 30 S. W. 260, cited as 
beiog an instance where appellate court reversed and dismissed suit 
on promissory note, where petition was not sufficient to authorize judg- 
ment against appellant. 

32 Tex. 723-731, CENTRAL RY. y. MERKEL. 

In Suit Against Railroad Company for taking lands for roadbeds, 
pleadings should describe lands so converted by metes and bounds. 

Approved in Fort Worth etc. R. R. t. Lamphear, 1 Tex. Ap. Civ, 
127, reaffirming rule. 



223 NOTES ON TEXAS EEPORTS. 32 Tex. 731-763 

In Action Against Railroad for Damages for taking land for road- 
bed, decree may devest possession from owner and vest same in com- 
pany for all necessary purposes. 

Approved in Palmer v. Harris County, 29 Tex. Civ. 341, 69 S. W. 
229, in condemnation proceedings for road purposes, judgment should 
not undertake to devest title of land owner, but only to subject land 
to utfe required. 

S2 Tex. 731-737, KEESEE T. BECKWITH. 

When Note Against Estate was Presented to administrator with 
insufficient affidavit thereto, which was rejected, but no objection 
made to affidavit, held that objection on that account could not be 
made in suit on note. 

Approved in Etter v. Dugan, 1 Posey U. C. 181, mere irregularities 
in jurat to claim should be objected to by administrator when claim 
is presented. 

S2 Tex. 737-741, GOLDEN T. STATE. 

Where Defendant Appeals ftom Judgment in case of niisdemeanor, 
he either goes to jail, or enters into recognizance to appear before dis- 
trict court from term to term, to abide decision of supreme court. 

Approved in Mathews v. State, 44 Tex. 378, indictment not showing 
on its face that it was found in district court of proper county is 
fatally defective. 

It is Presnmed That District Courts keep minutes of their proceed- 
ings. 

Approved in Early v. State, 1 Tex. Ap. 263, Coates v. State, 2 Tex. 
Ap. 17, reaffirming rule. 

32 Tex. 741-752, PHTLUPS ▼. LESSEE. 

Judgment Obtained in 1865, on which execution issued in 1868, held 
in view of the ^ay laws the judgment was not dormant on account 
of execution not issuing thereon within twelve months. 

Approved in Hutchins v. Chapman, 37 Tex. 614, 615, and Black v. 
Epperson, 40 Tex. 185, reaffirming rule; Cravens v. Wilson, 48 Tex. 
338, execution issued on judgment within one year after decision de- 
claring stay law unconstitutional. Cited in note, 94 Am. Dec. 224. 

32 Tex. 752-757, EBOOK8 v. BBEEDIKa. 

In Suit on Note Instituted in 1866, which fell due in 1862, it was 
held that indorser thereon was released for failure to bring suit at 
ftrbt term of court after court was opened after war. 

Approved in McGary v. McKenzie, 38 Tex. 216, 217, reaffirming 
rule; Stratton v. Johnston, 36 Tex. 93, notorious insolvency of maker 
of note excuses suit at first term at which it could be brought to hold 
indorsers. See note, 18 L. B. A. (n. e.) 543. 

32 Tex. 758-763, WHITE ▼. TUDOB. 

Suit upon Note Against Parties Composing Firm to which plea of 
non est factum was sustained, but pleading and proof showed one 
member of firm received benefits of consideration of note, held not 
error to render judgment against him for debt to amount of note. 

Distinguished in Long v. Garnett, 59 Tex. 232, where note by one 
partner after dissolution, for firm debt, was held good in hands of 
creditor ignorant of the diseolution. 



32 Tex. 763-800 NOTES ON TEXAS EEPOBTS. 224 

32 Tex. 763-772, BILEY ▼. STATE. 

Where Defendant was Obarged with Embesidement of ten thousand 
dollars in gold coin, with specific allegations as to denomination of 
the coins, the particular description of the coin was unnecessary. 

Approved in State v. Brooks, 42 Tex. 68, indictment need not give 
specific description of money embezzled; Griffin v. State, 4 Tex. Ap. 
411, failure in indictment for embezzlement of money from express 
company to aver that such company owned the money was defective. 

Embezzlement is Made by the Code a grade of theft. 

Approved in Parchman v. State, 2 Tex. Ap. 243, it seems that under 
proper instructions defendant may be convicted of receiving stolen 
property under indictment far th«ft; Vincent v. State, 10 Tex. Ap. 
332, theft includes all unlawful acquisition of property. Cited in note, 
98 Am. Dee. 161. 

Proof of Ownership of Embezzled Property in qualified owner is 
sufficient. 

Approved in Meaeham v. State, 45 Fla. 75, 110 Am. St. Bep. 61, 33 
So. 984, following rule. 

Where Express Messenger received money consigned and he reported 
theft en route, but gave no reasonable account of theft, conversion 
presumed. 

See note, 87 Am. St. Bep. 39. 

32 Tex. 774-776, JAOOBB y. OXTKNINGHAM. 

The Statute Allows the Wife, upon failure or neglect of her husband, 
to sue for any of her effects by authority of the court. 

Approved in Texas etc. By. v. Bailey, 83 Tex. 24, 18 S. W. 483, 
where husband became insane during pendency of suit, wa» error to 
permit wife to prosecute same to judgment in her own name. 

Failure to Cancel Bevenue Stamp upon Instrument does not in- 
validate such instrument as evidence. 

Approved in Mays v. Butledge, 37 Tex. 135, note offered in evidence 
showing revenue stamp had been affixed thereon by indorsee was suffi- 
cient; dissenting opinion in Makainai v. Goo Wan Hoy, 14 Haw. 686, 
majority holding instrument not stamped when made can be legally 
stamped afterward only by going before commissioner. See notes, 
84 Am. St. Bep. 197; 48 L. B. A. 319. 

32 Tex. 776-789, QALAN ▼. GOLIAD. 

Where Junior Grantee Gets Possession and holds adversely for the 
time prescribed for limitation, it becomes secure against the elder 
grantee. 

Approved in League v. Bogan, 59 Tex. 433, reaffirming rule. 

32 Tez. 789-797, McGAHAK ▼. BAYLOB. 

Grant of Land to Heirs of Deceased made in Texas in 1827 inured 
to heirs according to civil law then in force in Texas as part of 
Mexico. 

Approved in Kircher v. Murray, 54 Fed. 621, resident of Illinois died 
in service in war for Texas independence in 1836, held his wife was 
entitled to land grant. 

32 Tez. 797-800, BEMICK T. LUTEB. 

Where There are No Olaims against an estate, the heirs may in- 
vtituto suit for recovery of property belonging to it without the 
inteivontion of an administrator. 



225 NOTES ON TEXAS REPORTS. 32 Tex. 80'0-821 

Distinguished in Herbert v. Harbert (Tex. Civ.), 59 S. W. 595, hold- 
ing, where the estate is insolvent, such suit cannot be maintained. 

32 Tex. 800-804, HABWOOD y. BLTTHE. 

A Demnirer to the Evidence is Demurrer to the competency of the 
evidence, and admits its sufficiency. 

Approved in Pitt v. Texaa Storage Co., 4 Tex. Civ. Ap. 510 18 S. 
W. 466, Galvesrton etc. By. v. Templeton (Tex. Civ.), 25 S. W. 136, and 
Good V. Galveston etc. By. (Tex. Sup.), 11 S. W. 856, all reaffirming 
rule; Hollimon v. Griffin, 37 Tex. 453, only where evidence is in writ- 
ing can plaintiff be compelled to join in defendant's demurrer to 
evidence. 

Where Defendant had Demurrer to the Evidence, it was held to 
preclude both parties from introducing further factv, and supreme 
court reversed and rendered judgment. 

Approved in Scott v. Atchison, 36 Tex. 83, and 38 Tex. 395, both 
holding payment of note due estate to administrator or trustee in 
Confederate money does not discharge the same. 

32 Tez. 808-814, BXTIiBS OF THE 8XTPBEME COUBT. 

Rule 5 cited in Danks v. Bodeheaver, 26 W. Ya. 289; rule 22 cited 
in l^endarvis v. Gray, 41 Tex. 331, and Seligman v. Wilson, 1 Tex. Ap. 
Civ. 610. 

S2 Tez. 815-821, BUIiES FOB THE DI8TBI0T OOtJBTB. 

Bule 20 cited in Sweeney v. State, 5 Tex. Ap. 42. 

2 Tez. Note»— 15 



NOTES 

ON THE 



TEXAS EEPORTS 



GASES IN 33 TEXAS. 



8S TaoL 1-8, DOUGHTY T. STATE. 

SUtatory PtovIbIoiib Bespecting Approyal of Bail Bonds are di- 
reetorj merely, and noncompliance therewith will not invalidate 
bond. 

Approved in Whitman Agricultural Co. ▼. Voss, 2 Tex. Ap. Civ. 
492, holding formal approval necessary when bond filed and re- 
tomed to proper eourt; Taylor v. State, 16 Tex. Ap. 516, reaffirming 
rale. 

Private Person may Arrest without warrant for felony. 

See note, 8 L. B. A. 532. 

SS Tex. 122-15, BEIX^HEB ▼. BOSS. 

Wbeire Indorsement is in Blank and judgment is taken by de- 
fault, it is presumed that suit was brought in time. 

See note, 18 L. B. A. (n. s.) 542. 

S3 TtaL 16-^6, BAIiDWIN T. BIOHABDSON. 

Partnerships may Deal in Beal Estate in same way as with per- 
sonal property, and acts of one partner in respect to realty within 
scope of partnership business are valid in equity and binding on 
others. 

Approved in Huey v. Fish, 15 Tex. Civ. 460, 40 S. W. 31, holding 
one partner of nontrading firm cannot mortgage all partnership as- 
sets. See note, 28 L. B. A. 89, 93, 96, 97. 

At Oommon Law, deed executed in firm name by one partner is 
not Talid deed to bind other partners without their previous con- 
sent or subsequent ratification, but such consent may be by parol. 

Approved in Frost v. Wolf, 77 Tex. 461, 19 Am. St. Bep. 766, 14 
S. W. 442, reaffirming rule; Blum Land Co. v. Dunlap, 4 Tex. Civ. 
317, 23 8. W. 474, holding firm deed acknowledged by one partner 
admissible in evidence; Williams v. Meyer (Tex. Civ.), 64 S. 
W. 69, partner accepting employment under trustee of deed ex- 
ecuted by his copartner of partnership timber land and sawmill 
cannot object to validity of the deed. See notes, 48 Am. St. Bep. 
74; 28 L. B. A. 100. 

(227) 



33 Tex. 37-77 NOTES ON TEXAS EEPORTS 228 

Trust Deed Executed by One Partner in firm name, proved for 
record by subscribing witness and recorded, is admissible in evi- 
dence against attaching creditor seeking to avoid it. 

Approved in Frost v. Wolf, 77 Tex. 460, 19 Am. St. Bep. 764, 14 
S. W. 441, holding, in equity, conveyance to firm in firm name passes 
title to land. See note, 28 L. B. A. 175. 

33 Tex. 37-38, LAW Y. STATE. 

Circumstantial Evidence is often as strong and as conclusive as 
direct and positive evidence. 

Approved in Cave v. State, 41 Tex. 183, holding proper charge 
that circumetantial evidence might sustain conviction, but circum- 
stances must be proved; Cunningham v. State, 56 Neb. 693, 77 N. 
W. 61, holding proper charge that circumstantial evidence will sus- 
tain conviction if conclusive. See note, 62 Am. Dec. 180, 182. 

To Warrant Conviction of Felcmy on circumstantial evidence, law 
requires only that jury be satisfied beyond reasonable doubt of guilt 
of accused. 

Approved in Williams v. State, 41 Tex. 212, reaffirming rule; 
Brown v. State, 1 Tex. Ap. 157, holding jury must determine guilt 
when evidence is circumstantial and contradictory; Beed v. State, 
54 Ark. 625, 16 S. W. 821, holding proper charge on circumstantial 
evidence that guilt must be established beyond reasonable doubt. 
See note, 97 Am. St. Bep. 774. 

33 Tex. 38-49, BLAIB T. THOBP. 

Where Husband had Qiven Deed of Trust to homestead in hii 
lifetime, his widow is entitled to homestead of two hundred acres 
out of his estate, with improvements thereon, and no more. 

Approved in McAlister v. Farley, 39 Tex. 560, holding no home- 
stead being fixed at father's death, children entitled to homestead 
from father's individual estate. 

On Death of Husband, homestead, conveyed by husband and wife 
to secure husband's debt, ceases to be subject to trust deed. 

See note, 70 L. B. A. 142. 

33 Tex. 50-^2, WATEBS T. WATEBS. 

Statute of Limitations was Suspended during years of Civil War 
by ordinance of constitutional convention of 1866. 

Approved in Grigsby v. Peak, 57 Tex. 145, reaffirming rule. 

33 Tex. 67-68, KINDBED v. STATE. 

Indictment for Disturbing Public Worship charging offense in words 
of statute is sufficient without alleging particular acts of disturbance. 

Distinguished in Thompson t. State, 16 Tex. Ap. 161, holding in- 
dictment for disturbing religious meeting must allege acts of dis- 
turbance. 

33 Tex. 76-77, i3TATE v. BAHL. 

Fornication is not Offense known to or provided for by laws of 
Texas. 

Approved in Wolff v. State, 6 Tex. Ap. 195, reaffirming rule. 

Distinguished in State v. Handle, 41 Tex. 293, 294, holding Penal 
Code sufficiently defines offense of keeping lottery to support indict- 
ment; Ex parte Bergen, 14 Tex. Ap. 55, holding sodomy is made 
punishable offense by Penal Code. 



229 NOTES ON TEXAS BEPOBTa 33 Tex. 86-109 

S3 Tex. 86-01, WE8TBBOOK8 T. JEFFEB8. 

In Suit to Foradoee Tnut Deed on Homestead, evidence is admis- 
lible to show that widow was induced to execute deed by fraudu- 
lent representations. 

Approved in Phillips v. Bishop, 31 Neb. 861, 48 N. W. 1108, hold- 
ing mortgage by husband without wife's acknowledgment creates 
no lien on homestead; Bollins v. Menager, 22 W. Va. 470, holding 
parol evidence inadmissible to contradict wife's certificate of ac- 
knowledgment except for fraud. See notes, 1 Am. Dee. 81; 76 Am. 
Dee. 94; 54 Am. St. Bep. 156; 6 L. B. A. 45. 

88 T^x. 91-101, OIiAYTON T. FRAZIEB. 

Thongli Married Woman Executes Deed Without Privy Examina- 
tion, equity will, under certain circumstances, grant specific per- 
formance. 

Approved in Clay v. Clay, 35 Tex. 534, decreeing specific per- 
formance of contract of sale after valuable improvements made, 
though contract void when made. See note, 24 L. B. A. 764. 

Tbonj^ There is No Privy Examination of Married Woman, volun- 
tary execution of conveyance by her may be established by proof 
and conveyance be valid. 

Approved in Johnson v. Bryan, 62 Tex. 626, holding married 
woman, unless guilty of fraud, may claim property conveyed by 
▼oid deed; Stooksberry v. Swann, 12 Tex. Civ. 74, 34 S. W. 372, 
holding wife's privy acknowledgment unnecessary to pass title to 
separate personal property; Badford v. Carwile, 13 W. Va. 668, 
holding generally privy acknowledgment necessary for conveyance 
of wife's separate estate; Slaughter v. Glenn, 98 U. S. 247, 25 L. 122, 
holding wife's conveyance in husband's absence conveys title. See 
note, 58 Am. Dec. 124. 

Distinguished in Fitzgerald v. Turner, 43 Tex. 85, 87, holding 
deed to married woman's property must be executed as prescribed 
by statnte. 

Overruled in Bobert v. Ezell, 11 Tex. Civ. 178, 32 S. W. 363, hold- 
ing married woman estopped by acts in pais only when making 
fraudulent representations deceiving purchaser. 

83 Tex. 10^109, MATHEWS T. STATE. 

Where Person Attempts to Obtain Ooods on Forged Order, signed 
by person with whom she claims to have cotton, and goods are given 
on credit of order, indictment should be for forgery. 

Approved in State v. Sherwood, 90 Iowa, 551, 48 Am. St. Bep. 
462, 58 N. W. 912, holding person representing forged instrument 
to be genuine guilty of uttering forgery. See note, 106 Am. St. 
Bep. 826, 829. 

Where Indictment is for Swindling firm, B., B. ft Co., and evi- 
dence shows firm to be B. & K., there is fatal variance, and jury 
must acquit. 

Approved in Washington v. State, 41 Tex. 587, holding indictment 
for obtaining goods under false pretenses must allege ownership; 
Calloway v. State, 7 Tex. Ap. 587, holding indictment for defacing 
brand must allege ownership of joint property in possessor; Alden 
V. State, 18 Fla. 191, reaffirming rule. 



33 Tex. 109-157 NOTES ON TEXAS KEPOETS. 230 

33 Tex. 109-111, WIMBISH T. WOFFOBD. 

Citation Tested by Deputy Olerk in his own name and not in 
name of clerk is void. 

Approved in Sharmon y. Haot, 20 Mont. 558, 63 Am. St. Bep. 648, 
52 Pac. 560, holding summons must be signed by clerk of court. 
See 2 Tex. Ap. Giy. 83, note as to citation to nonresident. 

33 Tez. 112-113, TAIT T. MATTHEWS. 

Land Actually Taken in Eminent Domain proceedings must be 
paid for in full, but special benefits may be set off against damages 
to remainder. 

See note, 9 L. B. A. (n. s.) 821. 

33 Tez. 113-119, LOGOINS ▼. BUCK'S ADMIKISTBATOB. 

Where in Action on Notes, defendant denied plaintiff owned notes 
or had right to sue on them, plaintiff put on proof and had right 
to open and close argument. 

See note, 61 L. B. A. 543. 

83 Tez. 121-128, LEWIS T. PABKEB. 

Where Payee Knew That Acceptor was only an accommodation 
acceptor, drawer of an unnegotiated bill is liable without writ or 
protest. 

Distinguished in Johnson v. First Nat. Bank (Tez. Civ.), 29 8. W. 
678, where signer was not an accommodation maker, but, on con- 
trary, received benefits of the proceeds of the note. 

33 Tez. 129-130, STATE T. MANSFIELD. 

Indictment for Theft of Hog charging defendant with fraudulently 
taking from certain person certain hog of fixed value belonging 
to* named person, from his possession, without his consent, with in- 
tent to deprive him of its value, is sufficient. 

Approved in State v. Murphy, 39 Tez. 47, holding sufficient in- 
dictment charging defendant with knowingly keeping house for 
gambling; State v. Carter, 33 La. Ann. 1215, reaffirming rule; State 
V. Stelly, 48 La. Ann. 1480, holding indictment charging theft of 
''one hog," the property of a certain person, sufficient. 

33 Tez. 133-135, CAVA80S v. GONZALES. 

That Beyenne Stamp was Never Necessary for judicial proceed- 
ings in state courts would be held by court did case require it. 

Approved in Gregg v. Fitzhugh, 36 Tez. 128, holding receipt ad- 
missible though not stamped with sufficient revenue stamps. 

33 Tez. 135-136, CAIN T. MACK. 

No Motion for New Trial Being Made, verdict will not be dis- 
turbed because not supported by evidence. 

Approved in Putnam v. Putnam, 3 Ariz. 188, 24 Pac. 322, and 
Gaibraith v. Townsend, 1 Tez. Civ. 453, both reaffirming rule; Sears 
V. Green, 1 Posey U. C. 734, holding motion for new trial for in- 
sufficiency of evidence not prosecuted deemed waived. 

33 Tez. 13^157, VISEB ▼. BICE. 

Deed Left Blank as to Grantee's Name and filled up after ac- 
knowledgment is inoperative as deed, but is admissible as evidence 
of contract of sale. 



231 NOTES ON TEXAS BEPOBTS. 33 Tex. 167-197 

Approved in Adamson v. Hartman, 40 Ark. 61, holding deed in- 
effective nnless grantee's name and consideration inserted by gran- 
tor or authorized agent. See note, 10 Am. Bep. 267. 

Distinguished in Lockwood v. Bassett, 49 Mich. 549, 14 N. W. 492, 
holding grantee's name being inserted in deed delivered hj gran- 
tor, deed is good. 

33 Tex. 167-171, HAYNE8 ▼. BIGE. 

Amendment ^t Setting up new cause of action does not require 
new service of citation. 

Approved in Goodman v. City of Ft. Collins, 164 Fed. 973, where 
defendant brought under jurisdiction by proper service, jurisdiction 
not lost by amendment of complaint whereby necessary jurisdictional 
allegation added. 

Defendant Lawfully Served is presumed cognizant of all steps in 
case. 

Approved in Jackson t. Fulton, 87 Mo. App. 238, in justice's court 
amended statement may be filed and no notice need be given. 

33 Tex. 171-178, EBHABD v. OALLAGHAK. 

Parties have Bight to Waive, either openly or tacitly, statutes of 
frauds, and, having done so, must abide consequences. 

Approved in Pool v. Wedemeyer, 56 Tex. 300, holding defense of 
statute of frauds deemed waived if not pleaded. 

S3 Tex. 179-180, MONTOOMEBY v. STATE. 

Becognizance Stating Either Name of Offense or facts conetitut- 
iog such offense is sufieient. 

Approved in Arrington v. State, 13 Tex. Ap. 553, holding bond dis- 
tinctly naming offense sufficient; Vivian v. State, 16 Tex. Ap. 264, 
holding bond reciting defendant charged with theft of animals suf- 
ficient. 

83 Tex. 181-187, TAYIiOB V. WHITFIELD. 

Where Minor was Made Defendant without service of process on 
him, without appointment of guardian ad litem, judgment by de- 
fault against such minor is void. 

Approved in McAnear v. Epperson, 54 Tex. 224, 38 Am. Bep. 627, 
holding failure to cite minors, they having defended by guardian, 
will not invalidate judgment. See note, 89 Am. Dec. 186, 189. 

S3 Tex. 188-192, TUBLET v. BBEWSTEB. 

Testimony of Witness Purchasing Property Levied upon after in- 
junction restraining execution granted is admissible in suit enjoin- 
ing execution sale of property. 

Questioned in Attoway v. Still, 2 Posey U. C. 700, allowing re- 
covery on injunction bond for ten per cent damages and value of 
property levied upon. 

33 Tex. 192-197, WBOTH v. NOBTON. 

On Trial of Bight of Property to prove case by circumstantial 
evidence person must prove such facts as naturally lead mind to 
given conclusion to exclusion of other reasonable conclusions. 

See note, 62 Am. Dec. 187. 

If It Is Beasonable to Suppose that circumstances themselves not 
proven, no conclusion can be drawn from circumstantial evidence. 

See note, 97 Am. St. Bep. 775, 802. 



33 Tex. 198-226 NOTES ON TEXAS REPOBTS. 232 

S3 Tez. 198-202, DAWSON v. HABDY. 

Wliere Several Defendants, some of whom are administrators, se- 
cure writ of error but fail to give statutory bond for costs, writ 
will be dismissed as to all such administrators. 

Approved in Stephenson v. Texas etc. B. B., 42 Tex. 165, holding 
writ of error will be dismissed if not brought against proper par- 
ties. 

Overruled in Boman v. Sema, 40 Tex. 311, holding no bond for 
costs on writ of error necessary where there is supersedeas bond. 

38 Tez. 210-212, PABKEB ▼. NATIONS. 

When Plaintiif Takes Oat Execution on judgment against maker 
and indorser of note, but on day of sale postpones sale of land, 
indorser is discharged, and he may enjoin judgment. 

Approved in Jenkins v. McNeese, 34 Tex. 191, holding security 
discharged when creditor secures execution and has it returned 
unsatisfied; Brown v. Chambers, 63 Tex. 136, holding surety not 
discharged by creditor delaying execution after having it issued. 
See notes, 54 Am. St. Bep. 258; 18 L. B. A. (n. s.) 548; 30 L. B. A. 
568. 

33 Tez. 212-216, WILLIAMS ▼. HAUa. 

Rural Homestead, under constitution of 1845, might consist of 
separate parcels of land. 

Overruled in Iken t. Olenick, 42 Tex. 202, holding property under 
homestead exemptions must ordinarily be in one parcel. Bee notes, 
2 Woods, 662; 70 Am. Dee. 352. 

33 Tez. 216-219, CONVERSE v. MHJiER. 

In Suit for Value of Cotton, where proof shows that principal 
and agent were engaged in evading blockade laws of United States, 
transactions in such business are illegal and both parties in pari 
delicto and courts will aid neither in adjusting affairs. 

Approved in Canter v. Bennett, 39 Tex. 310, reaffirming rule. 

Distinguished in Lewis v. Alexander, 51 Tex. 591, holding person 
engaging in illegal traffic must account to confederates in enter- 
prise. 

33 Tez. 219-225, FARRILL v. MOONEY. 

Right of Action for Cattle killed and used by trespasser does not 
abate by death. 

Approved in Texas etc. B. Go. v. Smith, 35 Tex. Civ. 354, 80 S. 
W. 248, right of action for injury by trespass to realty of decedent 
during his life survives and may be sued on by heirs. 

''Claim for Money*' in Statute requiring presentation of claim to 
administrator means liquidated claim. 

Approved in National etc. Trust Co. t. Fly, 29 Tex. Civ. 535, 69 
S. W. 232, «laim on note, payment of which guaranteed by decedent 
and further secured by liens executed by maker and deceased 
guarantor, which would have to be enforced and equities adjusted, 
need not be presented to administrator. 

S3 Tez. 22&-226, OWENS v. MITCHELL. 

No Appeal Lies from Judgment sustaining demurrer of some de- 
fendants and dismissing case as to them, but leaving case undis- 
posed of as to other defendants. 

See note, 60 Am. Dec. 432. 



233 NOTES ON TEXAS REPORTS. 33 Tex. 227-274 

33 Tez. 227, DIBKS v. STATE. 

Writ of Habeas Coiptui Having Been Granted and prisoner dis- 
charged, appellate court has no jurisdiction of case. 

Approved in Ex parte Erwin, 7 Tex. Ap. 293, and Ex parte Cole, 
14 Tex. Ap. 581, both reaffirming role. 

33 Tex. 228-233, TOMKINS ▼. STATE. 

rndlctment for Swindling, setting out false pretenses and charg- 
ing intent to cheat, wrong, and swindle, but not alleging "intent 
to appropriate" in words of statute, is good. 

Approved in Richardson v. State, 2 Tex. Ap. 323, holding indict- 
ment good, though tautological. 

Overruled in Stringer v. State, 13 Tex. Ap. 522, holding indict- 
ment for swindling must allege intent. 

33 Tex. 234-240, PECK v. McKELLAB. 

Deed Is Admissible in Evidence in Suit for Land, though notary 
in certifying execution and acknowledgment used seal of county 
court instead of his official seal, where it is evident that wrong 
seal was used through mistake. 

Approved in Stone v. Sledge, 87 Tex. 55, 47 Am. St. Rep. 69, 26 
S. W. 1070, holding officer taking privy acknowledgment may amend 
certificate while in office. 

Where Defendant Pleads In Beconvention, though plaintiff takes 
nonsuit against defendant, cause can proceed to trial of issues 
raised by plea in reconvention. 

Approved in Schaeltzel v. Huron, 6 S. D. 139, 60 N. W. 743, hold- 
ing pleadings showing rights adverse to both parties, intervener 
may have suit dismissed. See note, 15 L. R. A. (n. s.) 345. 

33 Tex. 241-246^ McCOWN V. FOSTER. 

Purcbasers at Administrator's Sale, made under orders fraudu- 
lently procured by him, will be protected unless guilty of com- 
plicity with, or had notice of fraud of, administrator. 

Approved in Adams v. Thomas, 44 Ark. 271, reaffirming rule. 

33 TeiL 250-269, EDMONSON V. GABNETT. 

Administrator cannot, Without Authority from probate court, ac- 
cept bond of third parties in satisfaction of judgment in favor of 
estate. 

See note, 98 Am. Dec. 552. 

33 Tex. 269-266, MITCHELL ▼. BASS. 

At Common Law on Abandonment of Highway, land covered by 
it belongs to contiguous owners, but under civil law it reverts to 
sovereign. 

See notes, 26 L. R. A. 661; 8 L. R. A. 430. 

33 TeiL 266-274, BBENNAN V. STATE. 

That One Jnror was not Freeholder or Householder does not de- 
stroy jury in legal sense. 

Overruled in Lester v. State, 2 Tex. Ap. 444, holding jury invali- 
dated if juror not freeholder or householder. 

Distinguished in Republic of Hawaii v. Coelho, 11 Haw. 216, grant- 
ing new trial where one of jurors had not taken oath to support 



33 Tex. 275-297 NOTES ON TEXAS REPOETS. 234 

constitution, and neither defendant nor counsel discovered fact till 
after verdict. 

Affidavits of Jurors to Impeacli their verdict are not admisei- 
ble. 

Approved in Moore v. Missouri etc. By. Co., 30 Tex. Civ. 273, 69 
S. W. 1001, affidavits of juror, as to experiments by jury in jury- 
room, inadmissible. 

33 Tez. 275-277, CHAFPELL ▼. BB00K8. 

Defendant cannot Complain of Judgment, proper as to him, be- 
cause of errors affecting codefendants. 

Approved in Marx v. Carlisle, 1 Tex. Ap. Civ. 40, holding appel- 
late court without jurisdiction as to sureties where principal alone 
appeals. 

83 Tex. 280-283, LINDSAY ▼. PRICE. 

Notes and Bills of Ezcliange cannot be apportioned by assign- 
ment. 

Approved in Harris Co. v. Campbell, 68 Tex. 29, 2 Am. St. Bep. 
472, 3 8. W. 247, holding assignee of part of debt may recover 
against debtor; Avery v. Popper (Tex. Civ.), 34 S. W. 326, separate 
actions cannot be maintained by different indorsees of part interest 
in same note; Wright v. Brown, 11 Haw. 402, appeal bond need not 
be signed by appellant; Florida Orange etc. Co. v. Branham, 27 Fla. 
530, 8 So. 842, holding supersedeas bond properly conditioned, though 
not signed by all plaintiffs, sufficient. 

Distinguished in Goldman v. Blum, 58 Tex. 641, on facts of case. 

Appeal will not be Dismissed because power authorizing signing 
of principal's name to appeal bond is unsealed, for appeal bond is 
good though principal does not sign at all. 

Approved in Houston etc. By. v. Lockhart (Tex. Civ.), 39 S. W. 
321, reaffirming rule; San Boman v. Watson, 54 Tex. 259, hold- 
ing appeal bond valid though names of sureties did not appear in 
or principal sign it; I. & Gt. etc. B. B. v. Grant, 1 Tex. Ap. Civ. 
431, holding execution of appeal bond by sureties alone sufficient; 
Spokane etc. Lumber Co. v. Loy, 21 wash. 504, 58 Pac. 673, reaffirm- 
ing rule. See note, 51 Am. Dec. 723. 

83 Tex. 283-288, SMITH v. KINNET. 

Though Trustee's Pawer to Sell Lands for Certain Uses is deter- 
mined by lapse of specified time, trust remains in him, and equity 
will enforce it for benefit of cestui que trust. 

Approved in Dingmanv. Beall, 213 HI. 246, 72 N. E. 730, where 
land devised to trustee for purpose of creating trust fund for 'testa- 
tor's family, and trustee directed to sell at best price, he was not 
required to sell within any specified time. See note, 19 Am. St. Bep. 
275. 

Amendment Supplying Omissions or correcting mistakes in origi- 
nal pleading sets up no new cause of action, and is unaffected by 
statute of limitations. 

Approved in Longino y. Ward, 1 Tex. Ap. Civ. 259, and Bremond 
V. Johnson, 1 Tex. Ap. Civ. 326, both reaffirming rule. 

33 Tez. 288-297, EASLEY v. McGUNTON. 

Probate Courts Being of Limited Jurisdiction, there is no pre- 
sumption of law to sustain them; judgment and record must show 
finding of all material jurisdictional facts. 



235 NOTES ON TEXAS BEPOBTS. 33 Tex. 297-350 

Approved in Walker y. Myers, 36 Tex. 252, reaffirming rule. See 
note, 76 Am. Dec. 150. 

Sister State Judgment is void where ehown that it was rendered 
without service of process or appearance by defendant. 

Approved in Wren v. Howland, 33 Tex. Civ. 94, 75 S. W. 898, 
certified copies of Louisiana probate court proceedings ordering sale 
of Texaa lands are inadmissible. See notes, 103 Am. St. Bep. 309; 
21 L. B. A. 858. 

33 Tez. 297-322, 7 Am. Bep. 261, WABD v. McKENZIB. 

Nonresident Creditor may Avail Himself in state courts of rem- 
edy by attachment of lands in state belonging to debtor, though 
debtor be nonresident. 

Approved in Quarl v. Abbett, 102 Ind. 245, 52 Am. Bep. 671, 1 
N. E. 484, reaffirming rule. 

Levy of Attachment Operates as Lien, and secures to creditor 
right to have every obstruction removed which prevents satisfac- 
tion of lien. 

Approved in Johnson v. Heidenheimer, 65 Tex. 266, reaffirnling 
rule; Canadian etc. Trust Co. v. Kyser, 7 Tex. Civ. 480, 27 S. W. 
282, holding courts have power to adjudicate rights claimed to de- 
feat attachment lien; Kimbro v. Clark, 17 Neb. 407, 22 N. W. 790, 
holding attachment of nonresident debtor's land confers lien en- 
forceable by action of creditor's bill; Meacham Arms Co. v. Swarts, 
2 Wash. Ter. 417, 7 Pac. 860, holding attaching creditor entitled to 
injunction restraining foreclosure of fraudulent mortgage. See note, 
23 L. B. A. (n. s.) 84. 

33 Tex. 331-336, WOLZ v. STATE. 

Statute Against Gaming -is not violated where gaming-table is not 
kept for purpose of obtaining betters. 

Approved in Yepperson v. State, 39 Tex. 49, upholding conviction 
of keeping gaming-table where game played on table for money; 
Houghton V. State, 41 Tex. 137, reaffirming rule. 

33 Tez. 339-340, McDONALD V. STATE. 

Appellate Conrt will not Question Verdict in absence of statement 
of fact, and will presume all rulings not excepted to to be correct. 
Approved in Talley v. State, 1 Tex. Ap. 689, reaffirming rule. 

33 Tez. 342-^3, GHOLSTON v. STATE. 

Indictment Charging Malicious Killing of Hone is not supported 
by proof of killing of gelding. 
See note, 32 Am. Dec. 666. 

33 Tez. 346-350» LOBDELL v. FOWLEB. 

Depositions of Sons of Original Defendant taken in his behalf are 
admissible in evidence, though defendant dies and sons thereby be- 
come heirs and interested in suit at time of trial. 

Approved in Dougherty v. State, 18 Tex. Ap. 196, 51 Am. Bep. 306, 
holding depositions of persons subsequently indicted for same of- 
fense admissible. See note, 62 Am. Dec. 521. 



33 Tex. 351-411 NOTES ON TEXAS BEP0BT8. 236 

33 Tex. 351-353, MHJiEB v. LAOT. 

Where Note Absolate on Face for designated amount, agreement 
that it should be payable in Confederate money, made at execution 
of note, is good defense. 

See note, 43 L. B. A. 459. 

33 Tez. 365-358, WHITMOBE v. AIJiEN. 

Authorized Agents of Confederate Oovemment are liable in puni- 
tive damages for injuries resulting to citizens from acts beyond 
scope of their authority. 

Distinguished in Jones v. Williams, 41 Tex. 400, holding officers 
seizing cotton under order* of Confederate government protected 
thereby. See note, 54 Am. Dec. 270. 

Authorized Agents of De Jnre Oovemment must, in treatment of 
citizens, confine themselves to scope of legal authority. 

Approved in Gambill v. Fuqua, 148 Ala. 456, 42 So. 738, applying 
rule in action against license inspector for false imprisonment in 
which arrest made by alleged agent of inspector. 

33 Tex. 363-365, FOBBDBST v. WOODAIiIa. 

Principles Becvecting Presumptions of Grants heretofore laid down 
by court recognized as established law on subject. 

Approved in Paschal v. Dangerfield, 37 Tex. 303, reaffirming rule. 

33 Tex. 36&-383, MILAM COTJKTT v. BOBEBTSON. 

Under Act of August 30, 1856, no statute of limitation could run 
against state, and no settler could acquire title to school lands by 
preecription. 

Approved in Fannin Co. v. Biddle, 51 Tex. 369, adopting construc- 
tion of act. 

Miscellaneous. — ^Milam Co. v. Bateman, 54 Tex. 161, 168, referring 
to former appeal. 

33 Tex. 383-391, 7 Am. Bep. 268, COOPEB v. McOBIMMIK. 

A Subscription Promising to Pay certain amount "to any person 
or contractor who may hereafter build the bridge," cannot be varied 
by parol to show that it was to be let to the lowest bidder and at 
a certain time. 

Approved in Bruce v. Brown (Tex. Civ.), 25 S. W. 445, subsequent 
condition cannot be engrafted by parol when not founded on a con- 
sideration. 

Miscellaneous. — See note, 22 L. B. A. 80. 

33 Tex. 395-411, TBAMMEL v. PHTLLEO. 

Administrator Obtaining Order During Bebellion to sell assets of 
estate ''for cash" cannot accept payment in Confederate notes, and 
orders of court approving such returns and accounts are errone- 
ous. 

Approved in Shearon v. Henderson, 38 Tex. 248, holding admin- 
istrator may sue on notes payable in Confederate money. Spo note, 
86 Am. Dec. 653. 

Beasonable Attorney's Fees will be allowed where satisfactorily 
shown that services of attorney were necessary. 
See note, 93 Am. Dec. 394. 



237 NOTES ON TEXAS BEPOBTS. 33 Tex. 412-431 

S3 Tez. 41^-414, BRADFORD ▼. ABNOIJ>. 

Attorney's Receipt for Securities received from debtor to be eol- 
lected and applied to note held by attorney for collection is no de- 
fense to suit on note. 

Approved in Security Co. v. Graybeal, 85 Iowa, 548, 39 Am. St. 
Bep. 313, 52 N. W. 498, holdisg instructions to agent holding money 
to pay mortgage no defense in suit on mortgage; Herriman v. 
Shomon, 24 Kan. 388, 36 Am. Bep. 262, holding attorney employed 
to collect note may receive money only in payment thereof. 

33 Tex. 41&-417, TALIAFERRO v. OUNDIFF. 

Whether iDstmment was Intended by Parties as bill of sale or 
collateral security for debt is proper question for jury. 

Approved in Smith v. Covenant etc. Benefit Assn., 16 Tez. Civ. 
613, 43 S. W. 829, holding whether letter was intended to counter- 
mand order properly left to jury. 

33 Tex. 419^20, McDANIEL ▼. STATE. 

Person Taking Horse PuUicly, in broad daylight, from streets of 
town, leaving notice that he has done so, and intends to return it 
after using it, is not guilty of horse stealing. 

Approved in State v. Huffman, 16 Or. 20, 16 Pac. 643, holding 
taking steer under orders of employer is not larceny. See note, 88 
Am. St. Bep. 607. 

33 Tex. 421-425, WATT ▼. WHITE. 

Transfer of Notes secured by vendor's lien transfers lien to as- 
signees. 

Approved in White v. Downs, 40 Tex, 232, Houston etc. By. v. 
Bremond, 66 Tex. 163, 18 S. W. 449, Cordova v. Hood, 17 Wall. 9, 
and Bates v. Childers, 4 N. M. (John.) 352, 5 N! M. (Gild.) 76, 20 
Pac. 169, all reaffirming rule. See note, 13 L. B. A. 188. 

Miscellaneous. — ^White v. Downs, 40 Tex. 226 (on rehearing). Watt 
V. White, 46 Tex. 342, both referring to former appeals of same 
case. 

33 Tex. 428, FREEMAN v. JORDAN. 

Jury is Necessary on Default Judgment on cause of action not 
liquidated. 
See note, 20 L. B. A. (n. s.) 30. 

33 Tex. 429, WHJJS v. BRTAN. 

Where Two Defendants were Sued, and but one citation issued, 
fervice is fatally defective when return thereon shows proper ser- 
vice on only one, but does not specify which one. 

Approved in McDowell v. Nicholson, 2 Tex. Ap. Civ. 203, and 
Eutherford v. Davenport, 4 Tex. Ap. Civ. 417, 16 S. W. Ul, both 
reaffirming rule. 

83 Tex. 430-431, OOFF ▼. HAXJ8ER. 

Judgment Against Execntrlx for Debt of Testator, ordering execu- 
tion to issue against estate of deceased, is erroneous without allega- 
tions in pleadings authorizing same. 

Approved in Lewis v. Nichols, 38 Tex. 60, reaffirming rule. 



33 Tex. 431-484 NOTES ON TEXAS BEPORTS. 238 

S3 TfiZ. 431-440, ADKINS V. ABTHUB, STONE ft OO. 

One Entering Flxm after debt incurred ia not liable for debt. 
See note, 9 L. B. A. (n. s.) 58. 

33 Tez. 440-441, TAYI.OB ▼. DX7N0AN. 

Bevenne Stamp Is Effectoally Canceled when so defaeed that it 
cannot be used again. 

Approved in Gregg ▼. Fitzhugh, 36 Tex. 129, reaffirming rule. 
See note, 48 L. B. A. 319. 

33 Tex. 447-461, HOLLIDAY V. WHITE. 

Due Execution and Becord of Deed is good constructive delivery. 

Approved in McCartney v. McCartney (Tex. Civ.), 53 S. W. 390, 
voluntary execution, acknowledgment and record of deed from hus- 
band to wife constitutes delivery, though husband retains posses- 
sion of the deed; Newton v. Emerson, 66 Tex. 147, 18 S. W. 349, 
holding duly executed and certified and recorded deed passes title to 
grantee. See note, 54 L. B. A. 887. 

Advancement is Payment or Approiniation of Money or land by 
parent to child, in anticipation of share due child on death of parent, 
with view to portion or settlement in life. 

Approved in Brunson v. Henry, 140 Ind. 466, 39 N. E. 260, hold- 
ing conveyance making advancement cannot be testamentary. See 
notes, 80 Am. Dee. 559, 561. 

33 Tex. 462-470, GBEGG v. GBEGG. 

Act of May 15, 1838, providing that no mortgage takes lien xm- 
less recorded, was effective law until repealed by act of February 
5, 1840. 

Approved in Price v. Cole, 35 Tex. 471, reaffirming rule; Turner 
V. Cochran, 94 TexMS7, 61 S. W. 925, holding record of mortgage made 
after 1840 is notice after its recordation, although not recorded 
within ninety days. 

33 Tez. 476-479, PBE8LEY V. HOLMES. 

One Joint Tenant or Tenant in Common can maintain trespass 
or ejectment in his own name again&t mere trespass or wrongdoer. 

Approved in Fisk v. Floree, 43 Tex. 342, reafi^ming rule; Hutch- 
ins V. Bacon, 46 Tex. 414, holding feme sole owning undivided in- 
terest in land may sue in trespass to try title; Stovall v. Carmichael, 
52 Tex. 389, holding tenant in common may recover entire premises 
as against trespassers; Sowers v. Peterson, 59 Tex. 221, reaffirming 
rule. See notes, 70 Am. Dec. 314; 6 L. B. A. (n. s.) 715. 

33 Tex. 480-484, MONDBAOON ▼. STATE. 

Person in Possession of Stolen Property shortly after theft must 
show that he came by possession lawfully, to exculpate him from 
legal imputation of guilt. 

Approved in Williams v. State, 11 Tex. Ap. 277, holding erroneous 
charge that jury may infer guilt from unexplained possession of 
stolen property; State v. Cassady, 12 Kan. 559, holding possession 
of property makes out prima facie case of guilt. 

Overruled in Martinez v. State, 41 Tex. 165, holding erroneous 
charge to find defendant guilty unless possession of stolen property 
explained. 



239 NOTES ON TEXAS REPORTS. 33 Tex. 487-512 

83 Toz. 487-491, OOOK ▼. LOVE. 

To Bender Attachment Lien Available against subsequent judg- 
ment, it must have been carried into judgment. 

Approved in Bond v. Carter (Tex. Civ.), 73 S. W. 45, where in suit 
bj landlord against tenant for advances, no seizure made under 
distress warrant, and judgment merely in personam, failure to fore- 
close landlord's lien was waiver thereof; Gentry v. Lockett, 37 Tex. 
510, holding proper, injunction to restrain execution against prop- 
erty without foreclosing attachment lien; Toland v. Swearingen, 39 
Tex. 455, reaffirming rule; Wise v. Old, 57 Tex. 515, holding lien on 
property seized under distress warrant waived by taking personal 
judgment; Rowan v. Shapard, 2 Tex. Ap. Civ. 245, holding lien of 
att4ichment destroyed only by dissolution of attachment. 

Distinguished in Jemison v. Halbert, 47 Tex. 190, holding assignee's 
lien for purchase money supports deed good against judgment against 
vendor. 

Overruled in Wallace t. Bogel (Tex. Sup.), 2 S. W. 51, Wallace 
V. Bogel, 66 Tex. 575, 2 S. W. 98, both holding personal judgment 
sufficient to bind property under attachment. 

S3 Tez. 491^08, DAWBOK v. STATE. 

To Bender Threats Available as Defense for Killing, defendant 
must show that at time of killing deceased did some act from which 
accused reasonably inferred intention to carry out threats. 

Approved in Bean v. Mathieu, 33 Tex. 597, reaffirming rule; Tal- 
bert V. State, 8 Tex. Ap. 319, holding evidence of threats against 
person other than defendant inadmissible; State v. Cooper, 112 La. 
284, 104 Am. St. Rep. 447, 36 So. 351, on trial for murder evidence 
that half hour prior to homicide daughter of accused informed him 
that two days prior deceased had outraged her and that he left 
her and returned in half hour telling her he had killed deceased, is 
competent. 

Oonstltational Provision Empowering Jury to substitute life im- 
prisonment in lieu of death penalty does not repeal or affect former 
law inflicting death penalty for murder. 

Approved in Murray v. State, 1 Tex. Ap. 427, and Walker v. 
State, 7 Tex. Ap. 257, both reaffirming rule. See note, 27 L. R. A. 
598. 

33 Tex. 508-^10, BIUBPHT v. COFFEE. 

Wife cannot Institate Suit In Her Own Name, husband not being 
party, to recover community property. 

Approved in Jackson v. Cross, 36 Tex. 193, reaffirming rule. See 
note, 76 Am. Dec. 442, 443. 

Distinguished in Kelley v. Whitmore, 41 Tex. 648, and Lyttle v. 
Harris, 2 Posey U. C. 27, holding wife may sue to protect home- 
stead on husband's inability or refusal to sue. 

33 Tez. 511-612, CHAMBERS v. BONNER. 

Note Made Payable in "Dollars" is not payable in Confederate 
money in absence of proof of positive agreement to that effect. 

Approved in Diltz v. Sadler, 37 Tex. 141, holding note made pay- 
able in dollars, presumed that dollars refers to lawful currency. 



33 Tex. 514-545 NOTES ON TEXAS REPORTS. 240 

33 Tez. 514-^17, McLAMOBE ▼. HEFFNES. 

Administrator may Enforce Contract for location of land certifi- 
cates entered into by intestate in so far aa contract had been exe- 
cuted in lifetime of intestate. 

Distinguished in Bell v. Warren, 39 Tex. 110, holding enforceable 
conveyance of locative interest, locator complying with contract, 
though dying before patent issues. 

33 Tez. 517-621, WABBEN ▼. STATE. 

Carrying Cocked Pistol, but making no attempt to present or 
discharge it, and approaching antagonist and saying "I am ready 
for you," does not constitute assault under article 2137, Paschal's 
Digest. 

Distinguished in Crow v. State, 41 Tex. 471, holding pointing gun 
at person is aggravated assault, unless gun unloaded. 



33 Tez. 522-624, OBEBTHIEB V. STBOXJD. 

Purchaser at Execution Sale Takes Land subject to all equities 
against it, and acquires only such title as judgment debtor had. 

Approved in Parker v. Coop, 60 Tex. 117, holding wife's claim 
to property foreclosed with separate estate superior to attaching 
creditors; Sinsheimer v. Kahn, 6 Tex. Civ. 147, 24 S. W. 634, holding 
property purchased with wife's separate estate not subject to attach- 
ment for husband's debts. See notes, 82 Am. Dec. 612; 3 Am. St. 
Rep. 203; 3 L. R. A. 440. 

Besulting Trusts are Protected against operation of registration 
laws. 

See note, 21 L. B. A. 36. 

33 Tez. 626-645, MYEBS v. STATE. 

Charge on Law of Manslaughter is unnecessary when no other 
legal deduction could be made from facts proved than murder of first 
or second degree, or justifiable homicide. 

Approved in Neyland v. State, 13 Tex. Ap. 547, holding without 
evidence of adequate cause, charge upon manslaughter is improper. 

Determination of Class or Character in which offense is placed by 
evidence is properly left to jury. 

Approved in Sparf v. United States, 156 U. S. 86, 15 Sup. Ct. Rep. 
287, 39 L. 355. 

Want of Jurisdiction of Court in Criminal Case is available only 
by special plea at time of trial. 

Overruled in Field v. State, 34 Tex. 41, holding plea of not guilty 
\n criminal case puts venue of offense in issue. 

Parl^ Accused of Murder may Justify Homicide by proving actual 
threats to take his life brought directly to his knowledge, accom- 
panied at time of homicide by some demonstration of intention to 
execute threats. 

Approved in Bean v. Mathieu, 33 Tex. 597, Smith v. State, 25 
Fla. 522, 6 So. 484, and Territory v. Thomason, 4 N. M. 253, 13 Pac. 
226, all reafiSirming rule. See note, 61 Am. Dec. 53. 

Miscellaneous. — Cited in Miers v. State, 34 Tex. Cr. 190, 53 Am. 
St. Rep. 713, 29 S. W. 1077, citing note that defendant is presumed 
innocent, and verdict must not be against preponderance of evidence. 



241 NOTES ON TEXAS EEPORTS. 33 Tex. 545-590 

33 Tax. 545-646, 08B0BN ▼. STATE. 

Indictment Under Statute Against Disposing of Estrays without 
€omplying with estray law must allege value of animal disposed of. 

Approved in Crews v. State, 10 Tex. Ap. 293, holding indictment 
for pursuing taxable business without license should allege amount 
-of license. 

33 Tex. 546-^9, STATE v. SMYTHE. 

Indictment Accusing County Clerk of Demanding "Fees greater 
than allowed by law," specifying that fees were demanded for cer- 
tain orders for which no fees were allowed, is insufficient. 

Approved in Smith v. State, 10 Tex. Ap. 416, reaffirming rule. 

33 Tex. 549-569, WABD V. CONNER. 

Under Article 4573, Paschal's Dig., party first having survey actu- 
ally made or filed in surveyor's office acquires right to land. 

Approved in McKinney v. Grassmeyer, 51 Tex. 382, holding file 
or location followed by survey proper mode of appropriating publi<i 
domain; Alford v. McDonald, 2 Posey U. G. 178, holding land appro- 
priated by location and survey. 

Miscellaneous. — Cited in Houston ete. R. R. v. McGehee, 49 Tex. 
490, reaffirming all rules regarding priority of locations and surveys 
and effect of patents. 

33 Tex. 570-583^ JOHNSOK ▼. STATE. 

Local Civil Courts in Bebel States existing at passage of recon- 
struction laws were not abolished thereby, or by any of command- 
ing generals. 

Approved in State v. Rhodius, 37 Tex. 167, holding criminal court 
of San Autonio had jurisdiction of suit on recognizance in criminal 
case; Grant v. Chambers, 34 Tex. 581, reaffirming rule. 

Entry of Nolle Prosequi in case of one defendant jointly in- 
dicted, but who had severed defenses, is allowable during trial of 
another to make him witness in such trial. 

Approved in Bowden v. State, 1 Tex. Ap. 144, Brown v. State, 
42 Tex. Cr. 183, 58 S. W. 132, both reaffirming rule. See note, 35 L. 
B. A. 710. 

Special Exception to Indictipent because grand jury not drawn 
and summoned according to law is in nature of challenge to array, 
and not sustainable under article 363 of the Criminal Code. 

Approved in Reed v. State, 1 Tex. Ap. 3; holding objection to 
legality of grand jury can be made only by challenge. See note, 27 
L. B. A. 777. 

Miscellaneous. — Gates t. Johnson Co., 36 Tex. 145, cited as recog- 
nizing binding force of reconstruction act. 

33 Tex. 68&-590, JOHNSTON ▼. SHAW. 

Purchaser at Execution Sale Under Dormant Judgment is charge- 
able with notice, and can acquire no title to land. 

Limited in Boggess v. Howard, 40 Tex. 158, holding title acquired 
under execution sale on dormant judgment good against strangers. 

Miscellaneous. — Johnson v. Shaw, 41 Tex. 438, and Johnson v. 
Timmons, 50 Tex. 531, both referring to former appeals of same 
case. 

2 Tex. Notes— 16 



33 Tex. 591-^12 NOTES ON TEXAS BEPORTS. 242 

83 Tez. 691*697» BEAN v. MATHXBU. 

Person Shoatlng at Another With Intent to KUl, nnder eircum- 
stancee rendering killing of person aimed at murder in first degree, 
but missing him and killing another, la guilty of murder in second 
degree. 

Approved in McGonnell y. State, 13 Tex. Ap. 401, holding person 
killing person in attempt to beat another guilty of negligent homi- 
cide. See note, 63 L. B. A. '664. 

33 Tex. 699-602, SiALOY ▼. STATE. 

Person Is not Entitled to Revision of Judgment on facts without 
filing motion for new trial in lower court within prescribed time. 

Approved in Davis ▼• Zumwalt, 1 Tex. Ap. Civ. 319, reaffirming 
rule. 

Present State Constitution, providing that all qualified voters of 
each county shall be qualified jurors of such county, abrogates all 
previous laws on subject, and precludes passage of others. 

Approved in Wilson v. State, 35 Tex. 366, reaffirming rule. 

Law Prescribing Property Qualification for Juror, or that no per- 
son shall be qualified juror unless name is on jury list kept by 
county clerk, is unconstitutional. 

Approved in Beed v. State, 1 Tex. Ap. 5, holding challenge to 
array only mode of objection against body of persons summoned 
as grand jurors. 

Overruled in Lester v. State, 2 Tex. Ap. 445, holding act of 1876 
abrogates qualifications of jurors provided by constitution of 1869-70. 

83 Tex. 604-607, JANES ▼. LANGHAM. 

Wliere Counsel, After FUing but before indorsement by clerk, with- 
drew answer to fill in certain blanks, and was delayed from placing 
it on file at time case was called because of heavy storm, counsel 
being in frail health, default judgment should be set aside where 
meritorious defense Is shown. 

Approved in Scottish Union etc. Ins. Go. v. Tompkins, 28 Tex. Civ. 
160, 66 S. W. 1110, where in action on fire policy, policy provided 
that if building or any part fall, except as result of fire, insurance 
should cease, and shown that part of house fell as result of storm, 
meritorious defense shown; Springer v. Gillespie (Tex. Civ.), 56 8. 
W. 370, instance where default judgment occurring through sickness 
of one and mistake of the other attorney for nonresident was set 
aside. 

Default will not be Bet Aside to let in defense of limitations^ 
Bee note, 61 L. B. A. 750. 

38 Tex. 608-^12, BITTER ▼. STATE. 

On Trial for Malicious Mischief by tearing down and removing 
house, state need only prove ownership of land on which house 
stood as alleged in indictment, and that defendant entered upon it 
and committed offense charged. 

Distinguished in Murray v. State, 21 Tex. Ap. 636, 67 Am. Bep. 
632, 2 8. W. 763, holding offense of "killing a railroad engine" not 
covered by article 683. See note, 128 Am. St. Bep. 172. 



243 NOTES ON TEXAS BEPOBTS. 33 Tex. 614-649 

39 Tez. 614-622, DAIIJBT ▼. WTNK. 

Surety cannot Enjoin Jn^igmsnt on ground of delay in suing princi- 
pal where he does not allege he signed note as security or served 
notice requiring holder to sue principal. 

See note, 31 L. B. A. 66. 

Bxecntioii Sale will not lie Bojoined where execution plaintiff is 
dead. 

See note, 30 L. B. A. 137. 

SS Tex. 622-624, CUNDIFF ▼. HEBBON. 

OovrtB will not Enforce Written Obligation for quantity of coin, 
where coin was paid for in Confederate treasury notes. 

Approved in Grant r. Byan, 37 Tex. 40, denying recovery on sale 
of cattle to be paid for in Confederate States bonds. 



SS Tex. e24-628» HAKS8 ▼. EKIiOR 

On« Joint Tenant cannot, Without Exinresa Authority of other co- 
tenant, bind him in contract for sale of joint real estate. 

Approved in Eer v. Paschal, 1 Posey U. C. 709, reaffirming rule. 

Statute of Iiimltationa may be Pleaded by demurrer or exceptions 
expressly setting up such defense. 

Approved in Davidson v. Missouri Pac. By.^ 8 Tex. Ap. Civ. 219, 
reaffirming rule. See note, 76 Am. Dec. 114. 

S3 Tex. 629-630, BBOWN ▼. BEAD. 

District Oonrt Should not Betain Jurisdiction where defendant 
pleads that he is nonresident of county where sued and plaintiff 
amends, averring that defendant has no known fixed domicile, showing 
no diligent inquiry to ascertain it. 

Approved in Shandy y. Conrales, 1 Tex. Ap. Civ. 94, reaffirming 
role. 

88 Tex. 684-688, DIAMOND v. HABBIS. 

In Absence of Covenant to Contrary, burning of house by act of 
God or incendiary during term of lease is no defense to note for rent. 

See notes, 22 L. B. A. 614; 46 L. B. A. 764. 

One Taking Kote After Maturity takes it subject to all outstanding 
equities. 

See notes, 46 L. B. A. 757; 12 L. B. A. 41. 

88 Tex. 638-646, HEBBIN v. STATE. 

It is Murder in First Degree if intent to take life is executed after 
premeditation though but for an instant. 

Approved in State v. McPherson, 114 Iowa, 498, 87 N. W. 423, fol- 
lowing rule. 

88 Tex. 646-647, STATE ▼. IVT. 

District Attorney may Substitnte Indictment for one which had 
become so mutilated as to be unintelligible (Paschal's Dig., 2873). 

Approved in Sehultz v. State, 15 Tex. Ap. 265, 49 Am. Rep. 196, 
holding indictment may be substituted for lost indictment after de- 
fendant has pleaded. 

33 Tex. 647-649, WHITTAEEB ▼. CLAEKE. 

Defendant Haying Settled Case With Plaintiff is not liable to 
plaintifTs attorney for fees^ nor chargeable with fraud against him 
in making settlement. 



33 Tex. 650-670 NOTES ON TEXAS EBPOETS. 244 

Approved in Texas etc. By. v. Showalter, 3 Tex. Ap. Civ. 93, re- 
affirming rule. See noteB, 16 Am. Dec. 182; 51 Am. St. Bep. 262. 

33 Tex. 650-661, STBOUD v. STATE. 

Becognizance is not According to Statute where defendant and 
sureties are bound in joint bond, for statute apparently requires that 
they be separately recognized. 

See note, 67 Am. St. Bep. 198. 

Where Bond on Appeal does not substantially comply with statutory 
requirements, appeal will be dismissed. 

Approved in State v. Mattson, 105 Minn. 65, 117 N. W. 227, appeal 
bond under Bev. Laws 1905, sec. 4018, conditioned that defendant 
shall be and appear at first general term of district court and shall 
not depart thence without leave duly granted, is void. 

33 Tex. 651-661, WUSNIG V. STATE. 

To Warrant Conviction of Twtive Year Old Child for Mnrder under 
Penal Code, state must prove that defendant knew that killing man 
was great crime, prohibited under severe penalties. 

Approved in Binkley v. State, 51 Tex. Cr. 68, 100 S. W. 782, on trial 
for theft where evidence showed defendant eleven years old, charge 
should place burden on state as to defendant's capacity to commit 
offense; Simmons v. State, 50 Tex. Cr. 529, 97 S. W. 1052, applying 
rule in prosecution of defendant under thirteen years of age for 
burglary; Brown v. State, 3 Tex. Ap. 315, holding girl fourteen years 
old may be accomplice in committing crime; Ake v. State, 6 Tex. 
Ap. 419, 32 Am. Bep. 590, holding burden on defendant to prove im- 
munity by reason of age; Parker v. State, 20 Tex. Ap. 454, reaffirming 
rule. See notes, 70 Am. Dec. 496; 36 L. B. A. 200. 

Miscellaneous. — Cited in Brown v. State, 38 Tex. 486, as showing 
practice of appellate court -of examining general charge in felony 
cases. 

33 Tex. 661-663, BODGEBS v. OBEEN. 

Citation must Contain Names of all parties to support default judg- 
ment. 

Approved in Portwood v. Wilburn, 33 Tex. 713, and Delaware etc. 
Construction Co. v. Farmers* Nat. Bank, 33 Tex. Civ. 659, 77 S. W. 
629, both following rule; Crosby v. Lum, 35 Tex. 41, where there are 

several defendants, citation served on each must contain names of all. 

• 

33 Tex. 664-666, MABSHALL v. STATE. 

Under Kew Constitution, omission to charge jury in murder case 
that they may commute death penalty to life imprisonment at hard 
labor is reversible error. 

Approved in Murray v. State, 1 Tex. Ap. 427, holding death or 
life imprisonment may be imposed as punishment for murder; Doran 
V. State, 7 Tex. Ap. 386, reaffirming rule. See note, 27 L. B. A. 598. 

Miscellaneous. — Hudson v. State, 6 Tex. Ap. 573, in referring to 
offer of counsel to read case cited to the court and court's refusal of 
the offer. 

33 Tex. 668-670, SMALLET V. TATLOB. 

Third Party may Intexrene to protect his own rights, and set up 
interest adverse to both plaintiff and defendant at any time before 
final submission of case. 



245 NOTES ON TEXAS EEPORTS. 33 Tex. 671-683 

Approved in Pool y. Sanford, 52 Tex. 634, Teaffirming rule; Flem- 
ing V. Seeligson, 57 Tex. 533, holding party may intervene when his 
right would have supported original suit or defense. See note, 15 
Am. Dec. 163. 

Chose in Action Ib Aaslgnable Pendente Lite and assignee may sue 
and recover thereon in his own name. 

Approved in Penn v. Edwards, 50 Ala. 64, holding plea of assign- 
ment of judgment good answer to plea of plaintiff's bankruptcy. 

SS Tez. 671-675, M08ELEY v. STATE. 

Maxim That No Person can "be Twice in Jeopardy for Same Offense 
applies only where defendant has been tried by lawful jury upon 
good indictment and acquitted or convicted. 

Approved in Taylor v. State, 35 Tex. 109, holding nolle prosequi on 
charge of killing N. will not prevent conviction for killing M.; State 
V. Ulrich, 110 Mo. 360, 19 S. W. 658, holding jury being discharged 
because judge is ill, defendant may be tried again. See note, 36 Am. 
Bep. 755. 

Overruled in Powell v. State, 17 Tex. Ap. 351, holding court having 
discharged jury without defendant's consent, he cannot again be tried 
for offense. 

Statute Providing That Court may Discharge Jury for failure to 
agree is not unconstitutional. 

Approved in Early v. State, 1 Tez. Ap. 273, 28 Am. Rep. 410, hold- 
ing court cannot, after submission, discharge jury except for dis- 
agreement. 

Disdiarge of Jury for Failure to agree is not once in jeopardy. 

Approved in State v. Keerl, 38 Mont. 511, 86 Pac. 864, following 
rule. 



83 Tez. 67&-678, ELLIS ▼. McEINLET. 

Appellant must File With Clerk of Court assignment of errors 
specifying grounds on which he relies and all errors not so specified 
are considered waived. 

Approved in Cobum v. Poe, 40 Tex. 414, holding question not pre- 
sented by assignment not considered on appeal; Byrnes v. Morris, 53 
Tex. 220, Sutherland v. Mclntire (Tex. Civ.), 2S S. W. 578, both 
reaffirming rule. 

33 Tez. 680-681, JOBDAN ▼. TEBBY. 

Wliere Ministerial Act ii Performed by Deputy Sheriff, he should 
disclose for whom he acts as deputy and for what county. 

Approved in Arnold v. Scott, 39 Tex. 379, Sammis v. Wightman, 25 
FU. 558, 6 So. 176, Gibbene v. Pickett, 31 Fla. 151, 12 3o. 18, all 
reaffirming rule; Bobinson v. Hall, 33 Kan. 143, 5 Pac. 765, holding 
deed by deputy not executed in name of sheriff inadm^ible in evi- 
dence. See note, 26 Am. Dec. 416. 

Petition for Writ of Brror is Defective unless averring defendant's 
residence or that it is unknown to plaintiff. 

Approved in Gassells v. Kinney, 39 Tex. 432, reaffirming rule. 

8S Tex. 68S, HUGHES ▼. STATE. 

Appellate Court has No Jurisdicti6a unless record affirmatively 
shows that notice of appeal was given in lower court. 

Approved in Beck v. State (Tex. Civ.), 76 S. W. 923, and Western 
Union Tel. Co. y. O'Keefe, 87 Tex. 426, 28 S. W. 945, both reaffirming 



33 Tex. 685-711 NOTES ON TEXAS REPORTS. 246 

rule; Long y. State, 3 Tex. Ap. 322, hoIdiDg mandatpiy statute re- 
quiriDg notice of appeal to be given. 

33 Tez. 685-687, BUBDEK ▼. CKOSS. 

In Suit by Partnership, petition must disclose names of eaeb of 
several partners, otherwise petition is defective and judgment thereon 
in firm name erroneous. 

Approved in Frank y. Tatum, 87 Tex. 206, 25 S. W. 409, rea£&rming 
rule. 

53 Tex. 687-689, FOSTER ▼. 8HEPHABD. 

Where Injunction by Legatee of deceased partner enjoining sur- 
vivor from collecting assets is dissolved, defendant must give 
refunding bond. 

See note, 30 L. B. A. 106. 

Plaintiir in InjunctiOQ against judgment is liable in bond where he 
fails to win. 
See note, 13 L. B. A. 311. 

33 Tex. 690-692, MENIFEE ▼. MYEBa 

Petition Shows No Equitable Bight to Injunction where petitioner 
failed to set up defense in county court or to bring case to district 
court by certiorari or appeal. 

See notes, 19 Am. Dec. 606; 32 L. B. A. 323. 

Injunction Against Judgment will be refused when plaintiff fails 
to show why defense that plaintiff in execution was not owner of 
goods, price of which is basis of judgment, was not made at law. 

See note, 31 L. B. A. 774. 

33 Tex. 692-696, GABDINEB ▼. STATE. 

If State Puts Defendant's Declarations in Evidence, it is bound by 
them unless proven false. 

Approved in Irvine v. State, 18 Tex. Ap. 52, holding declarations, 
being uncontradicted, are conclusive evidence. See note, 82 Am. Dec. 
607. 

Boy Under Thirteen Years Old cannot be convicted of crime unless 
state proves that he had discretion sufficient to understand nature 
and illegality of offense. 

Approved in Simmons v. State, 50 Tex. Cr. 529, 97 S. W. 1052, anl 
Parker v. State, 20 Tex. Ap. 454, both reaffirming rule. 6ee notes, 
57 Am. Dec. 274; 36 L. B. A. 200, 202. 

33 Tex. 705-711, GOLDSMITH v. HEBNDON. 

Headright Certificate Issued Under Act of May 24, 1838, to heirs of 
soldier is not gratuity but is assets of estate of deceased soldier, sub- 
ject to administrator's sale to pay debts. 

Approved in Halsted v. Allen (Tex. Civ.), 73 S. W. 1069, following 
rule; Rogers v. Kennard, 54 Tex. 35, holding land covered by bounty 
warrants issued to those killed in storming Alamo assets of estate; 
Todd V. Masterson, 61 Tex. 622, reaffirming rule; Kircher v. Murray, 

54 Fed. 622, 623, holding land acquired under bounty warrant issued 
to soldiers community property. 

Distinguished in Ames v. Hubby, 49 Tex. 710, holding estate con- 
veyed by San Jacinto donations is not community property* 



247 IfOTES ON TEXAS BEPOBTS. 33 Tex. 712-744 

33 Tex. 712, DOOLEY ▼. 8TATB. 

Appellate Ooxsxt has No Jurisdiction of Criminal Oaae until final 
judgment of conTiction. 

Approved in Mayfield y. State, 40 Tez. 290, holding defendant in 
criminal ease can appeal only firom judgment of conviction rendered. 

See note, 28 L. B. A. 628. 

33 TOL 713-714, POBTWOOD ▼. WILBtTBN. 
imder Statute, Citation must State Names of all parties to suit. 
Approved in Bendj v. Boyce, 37 Tex. 444, reaffirming rule. 

Plaintlir cannot File Amended Petition after judgment by default 
without having default set aside. 

Approved in Tullis v. Scott, 38 Tez. 542, and Bates v. Evans, 2 
Tex. Ap. Civ. 165, both reaffirming rule. 

33 Tex. 714-720, HEILBBONEB ▼. HANCOCK. 

Where Contract for Hauling Ftelght by wagon between two points 
is broken, it is freighter's duty to accept other freight ofifered on 
return trip, in order to lessen damages. 

See note, 1 L. B. A. 76. 

33 Teoc 720-726, HABT ▼. KANADT. 

Plea in Abatement to an Attachment comes too late if filed after 
defendant has pleaded to the merits. 

Beaffirmed in First Nat. Bank v. Wallace (Tex. Civ.), 65 S. W. 395. 

Limited in Wallace v. First Nat. Bank, 95 Tex. 105, 65 S. W. 180, 
holding plea in abatement to attachment on ground that sureties on 
the bond are insolvent may be filed after plea to merits. 

Borden of Proof on plea in abatement as on party pleading. 

Approved in Daley v. Iselin, 212 Pa. 285, 61 Atl. 920, on trial of 
plea to jurisdiction burden is on defendant to show defective service 
of summons alleged. 

Motion to Quash Attachment may be made in limine. 
See note, 123 Am. St. Bep. 1053. 

33 TOL 725-730, SCOTT ▼. MANN. 

Ceatoi Qne Trust Under Mortgage, also trustee of power to sell, 
holds power coupled with interest, and may purchase property at 
tale otherwise fairly made. 

Approved in Qoodgame v. Bushing, 35 Tex. 723, holding mortgagee 
in mortgage with power of sale may be purchaser at sale under 
power; Marsh v. Hubbard, 50 Tex. 208, holding trustee of land 
conveyed to secure note may be purchaser at sale; Allen v. Gil- 
lette, 127 U. S. 596, 8 Sup. Ct. Bep. 1335, 32 L. 271, holding trustee 
may purchase trust property at judicial sale procured by third party; 
Randolph v. Allen, 73 Fed. 37, holding valid, sale by employee acting 
ss trustee to sell under mortgage to employer. See note, 9 L. R. 
A. 793. 

33 Tex. 732-744, BBOOK8 ▼. EVETT8. 

m Constmlng Willa^ testator's intention, if aaeertainable and not 
contrary to law, governs devise. 

Approved in Shimer v. Mann, 99 Ind. 192, 50 Am. Bep. 83, reaffirm- 
ing rule. See note, 30 Am. Dec. 416. 



33 Tex. 745-767 NOTES ON TEXAS REPOETS. 248 

Sa Tex. 745-759, 7 Am. Bep. 270, BENDER ▼. CBL^WFOBD. 

Oonstitntioiial Provisioiui Suspending Statutes of Limitation daring 
Civil War is not ex post facto law, and is not unconstitutional. 

Approved in Bentinck v. Franklin, 38 Tex. 471, Rivers t. Wash- 
ington, 34 Tex. 276, Dwight v. Overton, 35 Tex. 412, and McMillian 
V. Werner, 35 Tex. 420, all reaffirming rule; Shepard v. Phears, 35 
Tex. 773, holding act prescribing suit to first term to fix liability 
of indorsers not conflicting with constitution of 1869; Houston etc. 
R. R. T. Knechler, 36 Tex. 435, in concurring opinion, holding man- 
damus lies to compel state to grant railroad lands under act; Mose- 
ley V. Lee, 37 Tex. 482, holding statute suspended as to suits for 
title or possession of real estate, by constitution of 1869; Hart v. 
Mills, 38 Tex. 515, 516, holding constitution suspending statute of 
limitations inapplicable to act governing writ of error and the com- 
mencing of civil suits; Wood v. Welder, 42 Tex. 409, Grigsby v. 
Peak, 57 Tex. 151, and Henderson v. Beaton, 1 Posey U. C. 31, all 
reaffirming rule; McGregor v. Goldammer, 2 Posey U. G. 55, holding 
only those under disabilities at time constitution became effective 
protected thereby. See notes, 5 Am. Dec. 315; 10 Am. Dec. 131; 
45 L. R. A. 610, 613. 

Distinguished in Kennedy v. Briers, 45 Tex. 311, holding action 
for breach of trust within bar of statute of limitations. 

Courts of State aie Bound to Enforce Oonstltation as adopted 
by vote of people in so far as not conflicting with constitution, laws, 
or treaties of United States. 

Approved in Denver etc. By. v. Woodward, 4 Colo. 164, holding 
no legislative act can affect vested right to recover for injuries by 
railroad. 

Retrospective Laws are Laws destroying or impairing vested rights. 
to do or possess certain things according to the law of the land. 

Approved in Moore v. Letchford, 35 Tex. 213, 14 Am. Rep. 366, 
holding act attaching lien to judgments rendered prior thereto con- 
stitutional; Merchants' etc. Ins. Co. v. Lacroix, 35 Tex. 262, holding 
valid and binding insurance policy stipulation barring claims unless 
prosecuted within year; Lewis v. Davidson, 51 Tex. 257, holding 
extension of time of limitations not prohibited by organic law; 
Goldfrank v. Young, 64 Tex. 434, holding statutes of limitations 
affect remedy only in actions for debt; Moore v. State, 20 Tex. Ap. 
280, holding acts of limitation peculiarly within scope of legisla- 
tive action and control; Browne v. Browne, 17 Fla. 628, 35 Am. Rep. 
106, holding suit to sell mortgaged land to pay note maintainable 
in equity, though barred at law; Huffman v. Alderson, 9 W. Va. 
624, holding legislature may extend period of limitations as to past 
contracts; Hall v. Webb, 21 W. Va. 324, holding in proper case, 
legislature may revive action on contract though remedy barred; 
Campbell v. Holt, 115 U. S. 630, 6 Sup. Ct. Rep. 214, 29 L. 485, 
holding legislature may pass laws altering period of statute of limi- 
tations. 

33 Tez. 760-767, BENK ▼. SAMOS. 

To Prove Written Docnments, they must be produced in court to- 
gether with witnesses who are to identify and prove same, and iden- 
tification should be first proved. 

Approved in Western Union Tel. Co. v. Bertram, 1 Tex. Ap. Civ. 656,,, 
holding bill of lading purporting to be signed by clerk, his agency- 
must be proved. 



249 NOTES ON TEXAS BEPORTS. 33 Tex. 768-782 

Foxmal Borden of Proof in trials directly on probate of will is on 
proponent. 

Approved in Steinkuehler v. Wempner, 169 Ind. 159, 81 N. E. 484, 
15 L. B. A. (n. 8.) 673, Beazley v. Denson, 40 Tex. 436, Hardy v. Mer- 
rill, 56 N. H. 233, 22 Am. Bep. 443, and Chrisman v. Chrisman, 16 Or. 
131, 18 Pac. 8, al] reaffirming rule; Seebrock v. Fedawa, 30 Neb. 435, 
46 N. W. 652, holding burden of proof of sanity of testator on pro- 
ponent of will. See note, 17 L. B. A. 495. 

Tliat Will is Written by Legatee is circumstance casting suspicion 
on alleged will which calls for explanatory proof. 

See notes, 73 Am. Dec. 242; 6 L. B. A. (n. s.) 204; 36 L. B. A. 726. 

Miscellaneous. — Bonn v. Samos, 42 Tex. 106, referring to former 
appeal; Cockrill y. Cox, 65 Tex. 673, cited as showing practice of 
allowing jury in contest of will ; Garrison v. Blanton, 48 Tex. 303, hold- 
ing witness to will competent witness as to testator's mental capacity; 
Archer ▼. Meadows, 33 Wis. 171, holding equity cannot set aside pro- 
bate of will for fraud in procuring will. 

33 Tez. 768-774, OBME ▼. BOBEBTS. 

Vendee Holds in Trust for Vendor until purchase money is paid, and 
this trust follows the land or thing sold into hands of subsequent pur- 
chasers with notice, unless vendor has waived the lien. 

Approved in Price v. Cole, 35 Tex. 471, holding person purchasing 
with notice of mortgage takes subject thereto; Farley v. McAllister, 
39 Tex. 603, holding judgment creditor has no lien upon land sold 
before judgment; Hawkins v. Willard (Tex. Civ.), 38 S. W. 366, in- 
stance where parol resulting trust was held not within statute of 
frauds or registration laws. 

Distinguished in Grace v. Wade, 45 Tex. 528, holding lien of judg- 
ment creditor superior to title of vendee under unrecorded deed. 

Purchaser of Land at Sheriff's Sale who paid for land by giving 
credit for amount of bid on pre-existing judgment is not bona fide 
purchaser. 

Approved in Delespine v. Campbell, 52 Tex. 12, holding purchaser 
under mortgage sale crediting bid on judgment not bona fide pur- 
chaser. See notes, 21 L. B. A. 39; 16 L. B. A. 672. 

Vendor's Iden is Enforceable Against Land, though purchaser at 
time of judgment had no knowledge thereof and vendor had conveyed 
without reserving lien. 

Approved in Senter v. Lambeth, 59 Tex. 265, holding creditor's lien 
under judgment attaches to debtor's interest in land. See notes, 82 
Am. Dec. 612, 613; 86 Am. Dec. 669. 

33 Tex. 777-782, FLOYD ▼. BOBLAND. 

Deflciencies in Record, in ordinary cases, cannot be supplied by affi- 
davits, but under special circumstances this may be done. 

Approved in Live Oak Co. v. Heaton, 39 Tex. 501, refusing to per- 
mit statement of facts and bill of exceptions to be supplied by affi- 
davit. 

Vendee may have Sale Enjoined where decree of foreclosure of 
mortgage ignores vendee's rights. 

Approved in Davis v. Diamond, 1 Tex. Ap. Civ. 313, reaffirming rule; 
Whiteselle v. Texas Loan Agency (Tex. Civ.), 27 S. W. 315, mort- 
gagee not party to foreclosure of mechanic's lien may attack judg- 
ment of foreclosure for fraud. 



\ 



33 Tex. 783-794 NOTES ON TEXAS EEPORTS. 250 

33 Tex. 783-786, THOMAS ▼. BBOWDER. 

Sureties are not Liable for money paid sheiifF after return day of 
execution held by sheriff. 

Approved in Brown v. King, 41 Tex. Civ. 593, 93 S. W. 1020, hold- 
ing sheriff not liable for acts of deputy in making arrest; Maddox v. 
Hudgeons, 31 Tex. Civ. 293, 72 S. W. 416, sheriff not liable on bond 
for unauthorized acts of deputy in causing arrest of burglary suspect; 
Dysart v. Lurty, 3 Okl. 606, 41 Pac. 725, sureties on marshal's bond 
not liable for acts of deputy who seized goods without writ and with- 
out knowledge of principal; Hawkins v. Thomas, 3 Ind. Ap. 404, 405, 
29 N. £. 158, 159, holding sheriff collecting funds without process not 
liable on bond for conversion of such money; Dysart v. Lurty, 3 Okl. 
606, 41 Pac. 725, reaffirming rule. 

Sheriff has Bight to Amend Betam, and amendment after motion 
to amerce him does not affect competency of return. 

Approved in Jeffries v. Budloff, 73 Iowa, 62, 5 Am. St. Bep. 656, 34 
N. W. 757, reaffirming rule. See notes, 13 Am. Dee. 174, 177; 46 Am. 
Dec. 516; 6 Am. St. Bep. 132. ' 

S3 Tex. 786-787, FLOT7BNOT ▼. MABX. 

Application for Oonttnuance to Procure Testimony must aver due 
diligence and state facts on which averment is predicated. See note, 
74 Am. Dec. 145. 

33 Tex. 783-789, MOGELIN ▼. WESTHOFF. 

Maker of Note mnst Affix and Cancel Proper Berenne Stamps 
thereon, but failure to do so will not entitle him to reversal of judg- 
ment on note. 

Approved in Gregg v. Fitzhugh, 36 Tex. 129, reaffirming rule; HaU 
V. Johnston, 6 Tex. Civ. 120, 24 S. W. 866, in dissenting opinion, ma- 
jority holding member of firm assuming note, creditor extending time 
thereon releases others. See notes, 84 Am. St. Bep. 197; 48 L. B. A. 
318. 

Fact That Partnership Dissolved and one partner had agreed to pay 
firm note is no defense to other partner in action on note by holder. 

See note, 9 L. B. A. (n. s.) 74. 

33 Tex. 789-791, MEBBIWEATHEB ▼. STATE. 

Indictment for Theft of Community Property must allege ownership 
in husband. 

Distinguished in Miles v. State, 51 Tex. Cr. 588, 589, 103 S. W. 854, 
855, where on trial for theft of money, shown that wife, in whom was 
alleged ownership, had exclusive control and possession at taking, alle- 
gation of possession and ownership in her was correct. 

33 Tex. 792-794, FISHEB ▼. STATE. 

When Indictment Charges Two Felonies, indictment may be quashed 
or prosecutor compelled to elect which charge he will prosecute. 

Approved in Williams v. State, 44 Tex. Cr. 317, 70 S. W. 958, follow- 
ing rule; Walker v. State (Tex. Cr.), 72 S. W. 402, applying rule in 
prosecution for violation of local option law where prosecuting wit- 
ness testified as to sales on different dates; State v. Walker, 88 Miss. 
597, 41 So. 9, indictment under code, sec. 1089, charging in one count 
receipt of deposits from divers persons without informing them of 
bank's insolvency and in another that deposits were received from 



251 NOTES ON TEXAS EEPORTS. 33 Tex. 796-814 

teyeral persons named, is demurrable for joinder of separate offenses 
in single count; Jamison v. State, 117 Tenn. 63, 94 S. W. 676, apply- 
ing rule in prosecution for violation of age of consent law where state 
proved several acts of intercourse one of which was after prosecutrix 
reached age of consent; Weather sby y. State, 1 Tex. Ap. 646, holding 
indictment, though charging two distinct offenses in separate counts, 
good; Batchelor y. State, 41 Tex. Gr. 503, 96 Am. St. Bep. 791, 55 S. 
W. 491, rape is not a continuous ofifense, hence state must elect which 
act of intercourse it relied upon. See notes, 58 Am. Dec. 249; 92 Am. 
Dec. 665. 

33 Tex. 796-798, BATTLE ▼. MAOK 

Where Jury was Waived by Both Partiee In District Court, supreme 
court may render such judgment as district court should have ren- 
dered. 

See note, 73 Am. Dec. 277. 

S3 Tez. 798-800, STATE ▼. MANLOVE. 

Under Article 191, Paschal's Digest, district court has unrestricted 
power to appoint person to discharge duties of district attorney, ex- 
cept that appointment cannot extend beyond court term. 

Approved in Mamoch v. State, 7 Tex. Ap. 271, holding court may 
appoint substitute 'when district attorney is disqualified; Bobertson v. 
Coughlin, 196 Mass. 542, 82 N. E. 679, clerk of water board holds office 
for such term as board prescribes, not exceeding one year. See note, 
16 L. B. A. 738. 

33 Tex. 801-«07, FBOIS ▼. MATFIELD. 

Taking Collateral Security will not extinguish original debt or sus- 
pend remedy on it. 

Approved in Fisher v. Denver Nat. Bk., 22 Colo. 381, 45 Pae. 443, 
reaffirming rule. 

Mere Oivlng of Time on Bill of Exchange without binding agree- 
ment postponing right of action or working some injury to security, 
will not discharge lien. 

See note, 58 Am. Dec. 108. 

S3 Tex. 811-818, KAPP V. TEEL. 

Judgment Creditor cannot Oamiahee Maker of negotiable instru- 
ment before maturity, executed and delivered to judgment debtor. 

See note, 55 Am. Dec. 69. 

Injunction Llee to Stay Jnstlce Conrt Execution on judgment 
against garnishee when latter answered that he had executed for his 
debt a note not yet due. 

See notes, 31 L. B. A. 202; 30 L. B. A. 362, 704. 

33 Tex. 813-^14, GEEGOEY ▼. LEIGH. 

Promlflsory Note Beading, *% Administratrix, etc.," is individual 
contract of maker and does not bind estate. 

Approved in Brown v. Adams (Tex. Civ.), 55 S. W. 762, Curtis v. 
National Bank, 39 Ohio St. 583, and Bobinson v. Springfield Co., 21 
Fla. 223, all reaffirming rule; Warren v. Harrold, 92 Tex. 420, 49 S. 
W. 365, holding trustee without power to bind trust estate signing 
note binds himself individually; Wing v. Glick, 56 Iowa, 475, 9 N. 
W. 385, holding officers of company signing contract without au- 
thority bind themselves. See notes, 37 Am. Bep. 142; 21 L. B. A. 
(n. B.) 1059. 



33 Tex. 815-818 NOTES ON TEXAS REPORTS. 25Z 

83 Tex. 816-818, 7 Am. Sep. 279, DAIIJ5T ▼. COKEB. 

Bevenne Laws of United States prohibiting receiving unstamped 
instruments in evidence applies to United States courts, and is inap- 
plicable to state courts. 

Approved in Oregg v. Fitzhughs, 36 Tex. 129, reaffirming rule; Wat- 
son V. Mirike, 25 Tex. Civ. 532, 61 S. W. 541, applying rule to act 
of Congress of 1898; Rowland v. Plummer, 50 Ala. 194, holding noto 
admissible where stamp appended thereto before note offered in evi- 
dence. See notes, 7 Am. Rep. 51; 7 Am. Rep. 468; 13 Am. Rep. 681; 

84 Am. St. Rep. 189; 48 L. R. A. 305. 

Admissions Contained in Pleading stricken out on motion of oppo- 
site party will not support verdict in favor, of party at whose in- 
stance it was stricken out. 

Reaffirmed in Watters v. Parker (Tex.), 19 S. W. 1023. 

Berenne Stamp may be Affixed and canceled in open court where 
instrument executed at time when revenue office not open in Texas, 

See note, 48 L. B. A. 313. 



NOTES 

ONTHB 



TEXAS REPOETS 



CASES IN 34 TEXAS. 



34 Tex. 15-25, DAVIS ▼. DAVIS. 

Wlien Contest Arises in Prolate Ooort and issue of fact is joined, 
constitution requires that it be tried by jury unless jury is waived. 

Approved in Cockrill v. Cox, 65 Tex. 6-73, 674, and Williams v. 
Truitt, 1 Tex. Ap. Civ. 258, both reaffirming rule; Ex parte Allison, 
48 Tex. Cr. 639, 90 S. W. 495, 3 L. B. A. (n. s.) 622, holding injunc- 
tion may be granted to restrain use of premises as gambling-house 
and person violating injunction may be fined for contempt. 

Legislature cannot Alter or Abridge any part of constitution. 

Approved in Gulf etc. Co. v. Martin, 38 Tex. Civ. 382, 86 S. W. 20, 
holding void act of 1903, creating sixty-second judicial district, in 
so far as it relates to Delta county. 

34 Tex. 27-36, DAVIDSON ▼. PETICOLAS. 

Court Takes Judicial Notice that terms of district court are held at 
time prescribed by statute. 

See notes, 89 Am. Dec. 688; 18 L. R. A. (n. s.) 543; 4 L. B. A. 34. 

Statate Requiring Suit to be Brought to First Term of district 
court is not statute of limitation within constitutional provision sus- 
pending statutes of limitation during Civil War. 

Approved in Sandifer v. Hubbard, 39 Tex. 419, holding probate law 
provision requiring presentment of claims within twelve months not 
statute of limitations. 

34 Tex. 36-39, HOHMAN ▼. COMAL. 

Under Article 1045, Paschal's Digest, no suit can be brought on 
claim against county unless claim first presented to county court for 
allowance. 

Approved in Bio Grande County Commrs. v. Phye, 27 Colo. 109, 59 
Pac. 55, following rule; Powder etc. Cattle Co. v. Commissioners, 9 
Mont. 153, 22 Pac. 386, holding claim against county must be pre- 
sented to commissioners before commencing suit; Hoexter v. Judson, 
21 Wash. 650, 59 Pac. 499, holding claim for taxes paid under duress 
must be presented to county before suing thereon. See note, 68 Am. 
Dec. 296. 

(253) 



34 Tex. 39-78 NOTES ON TEXAS BEPOETS. 254 

S4 Tex. 39-48, FIELD ▼. STATE. 

Innocence is Presumed Until Guilt Proven; hence in all proBeen- 
tions state must prove commission of acts constituting offense within 
state. 

Approved in State v. Hinkle, 27 Kan. 313, holding erroneous, con- 
viction where complaint fails to allege venue of offense. 

34 Tex. 44-48, WELDEB v. HUNT. 

In Ascertaining Bonndaries, monuments govern courses and dis- 
tances, and courses and distances govern calls for quantity, but in 
absence of both of former, latter controls. 

Approved in Buford v. Qraj, 51 Tex. 336, holding calls for comer 
and lines control calls for quantity; Ayers v. Harris, 64 Tex. 302, 
304, holding course and distance control unascertainable calls for 
monuments; Ayers v. Watson, 113 U. S. 608, 5 Sup. Ct. Bep. 648, 28 
L. 1093, holding course and distance control where monuments cannot 
be identified. See notes, 30 Am. Dec. 737; 30 Am. Dec. 741; 4 L. B. 
A. 426. 

Declarations of Surveyor Bunnlng Lines as to location of boundary 
are admissible in evidence after his death, and may be proved by 
witness to whom made. 

Approved in Tracy v. Eggleston, 108 Fed. 328, reaffirming rule; 
Evans v. Hurt, 34 Tex. 113, holding declarations of disinterested per- 
sons, since deceased, admissible to prove boundaries. 

Distinguished in dissenting opinion in Tracy v. Eggleston, 108 Fed. 
331, majority reaffirming rule. But explained and reaffirmed again 
on rehearing in Tracy v. Eggleston, 108 Fed. 334. 

Opinion of Majoril^ of Jury, though accepted as verdict by stipula- 
tion, is not entitled to sanctity ordinarily attached to verdict. 

See note, 43 L. B. A. 80. 

34 Tex. 49-78, SAN ANTONIO ▼. GOULD. 

Under Constitution of 1846, state legislature has power to authorize 
municipal corporations to subscribe to capital stock of railroad, and 
levy taxes and issue bonds to pay subscription on two-thirds vote of 
electors. 

Approved in Harcourt v. Good, 39 Tex. 475, holding tax ordered 
by police court of Colorado county to aid railroad valid. See notes, 
3 Dill. 209, 59 Am. Dec. 783, and 73 Am. Dec. 218. 

Article 7, Section 24, Constitution of 1845, providing that laws en- 
acted by legislature should embrace only one object, which should be 
expressed in title, is mandatory. 

Approved in Ex parte House, 36 Tex. 84, holding act incorporating 
fire department not invalidated by clause exempting firemen from 
jury duty; State v. McCracken, 42 Tex. 385, holding amended act 
valid though misleading in caption date of amended act; Hasselmeyer 
V. State, 1 Tex. Ap. 698, reaffirming rule; Ex parte Fagg, 38 Tex. Cr. 
586, 44 S. W. 295, 40 L. B. A. 212, holding unconstitutional act em- 
powering city to make offense against state offense against city; Bal- 
lentyne v. Wickersham, 75 Ala. 538, reaffirming rule; In re Breene, 
14 Colo. 409, .24 Pac. 5, and Shipley v. Terre Haute, 74 Ind. 301, both 
holding act incorporating railroad valid though providing for individ- 
ual stockholder's liability; State v. Hyde, 121 Ind. 49, 22 fT. E. 654, 
holding act providing for different offices under one title unconsti- 
tutional; State V. Bogers, 10 Nev. 254, 21 Am. Bep. 740, reaffirming 



255 NOTES ON TEXAS REPORTS. 34 Tex. 79-98 

nile; Bloom t. Xenia, 32 Ohio St. 464, holding directions of munici- 
pal code as to passing resolutions mandatory; Smith y. Sherry, 54 
Wis. 121, 11 N. W. 467, holding statutes regarding forms for chang- 
ing town boundaries mandatory. See notes, 61 Am. Dec. 340, 342, 
344; 86 Am. St. Rep. 275. 

Act to Incoiporate San Antonio Railroad Company, passed in 1850, 
is repugnant to section 24, article 7, constitution of 1845. 

Approved in Qiddings t. San Antonio, 47 Tex. 552, 26 Am. Rep. 
323, Oiddings ▼. San Antonio, 47 Tex. 557, 26 Am. Rep. 328, and 
Peek Y. San Antonio, 51 Tex. 492, all reaffirming ruling on same 
statute. 

Overruled in San Antonio v. Mehaflfy, 96 U. S. 314, 315, 24 L. 816, 
holding act constitutional; Town of Abington v. Cabeen, 106 HI. 208, 
and Connor v. Green Pond etc. R. R., 23 S. C. 436, holding precisely 
similar statute constitutional. 

Mnnicipal Corporation cannot, otherwise than by common seal, is- 
sue negotiable bonds for liquidation of subscription to railroad. 

Approved in Tiffin v. Shawhan, 43 Ohio St. 184, 1 N. E. 585, hold- 
ing ineffective deed from city by city clerk, sealed with official seal, 
executed under ordinance. 

84 T«X. 79-94, LEIAND V. WILSON. 

Pnrcliaser at Constable's Sale Under Execution takes no title to 
property lying beyond constable's ministerial territory. 

Distinguished in Cundiff v. Teague, 46 Tex. 477, holding constable 
may levy execution on land throughout county, under statute of 1846. 

To Support Constable's Deed Under Execution Sale, there must be 
valid judgment, valid execution, and valid sale. 

See note, 76 Am. Dec. 57. 

Making SberifTs Deed is Ministerial Act, and deed may be admitted 
in evidence if judgment and execution valid on proof that claimant 
purchased under execution. 

Approved in Harrison v. McMurray, 71 Tex. 129, 8 S. W. 615, hold- 
ing power to execute deed presumed after long lapse of time; Hous- 
ton etc. R. R. V. Martin, 2 Posey U. C. 118, reaffirming rule; Grand- 
jean V. Story, 2 Posey U. G. 523, holding sheriff's deed admissible 
though original return on execution missing. 

Whero Judgment is Lien on Land, officer levying execution thereon 
need not enter upon land. 

Overruled in Cavanaugh v. Peterson, 47 Tex. 204, holding sheriff 
in levying execution need not enter upon land. 

34 Tex. 95-98, STATE V. BRADLEY. 

Indictment Charging Assault upon Two Persons is good upon de- 
murrer or motion to quash where two or more persons assaulted at 
same time by same act. 

Approved in People v. Ellsworth, 90 Mich. 446, 51 N. W. 532, re- 
affirming rule. 

Where Either from the Indictment or Proof on Trial it is apparent 
that defendant is charged with different offenses, prosecution may be 
forced to elect which act shall be prosecuted. 

Approved in Nite v. State, 41 Tex. Or. 347, 54 S. W. 766, in crim- 
inal case it is proper to limit the charge to the evidence introduced 
where there are several counts in the indictment. 



34 Tex. 104-134 NOTES ON TEXAS BEPOBTS. 256 

84 Tez. 104-111, GAULT ▼. GOUDTHWAITE. 

On Dissolving Injunction Improperly Bestrainlng Collection of 
money, district court must, under statute, award ten per cent dam- 
ages against plaintiff. 

Overruled in Griffin v. Chadwick, 44 Tex. 411, holding injunction 
restraining execution on wife's property for husband's debts being 
dissolved, damages improperly awarded. See note, 62 Am. Dec. 524. 

34 Tex 111-113, EVANS v. HtJBT. 

In Estarblisliing Boundary Iiines, declarations of disinterested per- 
sons, since deceased, are admissible. 

Approved in Hurt v. Evans, 49 Tex. 316, reaffirming rule; Tucker 
V. Smith, 68 Tex. 478, 3 S. W. 673, holding witness may testify as to 
declarations of deceased person as to line; Bussell v. Hunnicutt, 70 
Tex. 660, 8 S. W. 501, holding declarations of surveyor, since de- 
ceased, admissible to establish boundaries; Whitman v. Havwood, 77 
Tex. 560, 14 S. W. 167, reaffirming rule; Hunnicutt v. Peyton, 102 
U. S. 366, 26 L. 120, holding declarations of deceased person inadmis- 
sible unless shown to have known boundary. See note, 94 Am. St. 
Bep. 678. 

34 Tex. 114-125, SULUVAN ▼. DIMMITT. 

Bon» Fide Verbal or Parol Sale of Land in Texas, in 1834, is suffi- 
cient to convey good and indefeasible title. 

See note, 46 Am. Dec. 121. 

Copy of Becord of Deed to Land lying in another county is inad- 
missible. 

Distinguished in Moody v. Ogden, 31 Tex. Civ. 397, 72 S. W. 254, 
under Bev. Stats., art. 4642, where deed duly recorded in county other 
than where land lies, certified copy of record admissible in evidence 
to show proper record where copy recorded in proper county. 

34 Tex. 125-133, 7 Am. Bep. 281, MUSSINA v. GOLDTHWAITE. 

Intervener Claiming Interest in Subject Matter of Suit may, by 
leave of court, interpose claim as defendant, and may set up and 
prove fraud between original parties. 

Approved in Pool v. Sanford, 52 Tex. 634, holding intervention al- 
lowed when intervener has rights sufficient to sustain suit or defense. 
See notes, 15 Am. Dec. 162; 123 Am. St. Bep. 293, 299. 

Individual Stockholder may Maintain Petition in equity against 
corporation directors for misconduct in office when corporation is un- 
able or neglects to sue at law. 

Approved in Loftus v. Farmers' Shipping Assn., 8 S. D. 205, 65 
N. W. 1077, Joy v. Ft. Worth etc. Co., 24 Tex. Civ. 96, 58 S. W. 174, 
and Deaderick v. Wilson, 8 Baxt. 132, all reaffirming rule. See notes, 
41 Am. Dec. 370; 53 Am. Dec. 646; 2 Am. St. Bep. 82; 12 Am. St. 
Bep. 609; 9 L. B. A. 654. 

Where Directors are Charged with fraud, stockholder need not ap- 
ply to them for use of corporate name in bringing suit. 

See note, 9 L. B. A. 655. 

S4 Tex. 133-134, LOPEZ ▼. STATE. 

tinder Statute No Person can be Convicted of crime upon uncor- 
roborated testimony of accomplice. 

See note, 71 Am. Dec. 678. 



257 KOTES ON TEXAS REPOBTS. 34 Tex. 134-147 

34 Tex. 134-1S6, GIBBS v. STATE. 

Under Indictment for Theft of Oelding, verdict of guilty of horse 
stealing did not find defendant guilty of offense for which he was in- 
dicted. 

Approved in Martinez v. Territory, 5 Ariz. 56, 44 Pac. 1089, where 
indictment charges larceny of steer and proof shows animal was cow, 
variance is fatal. See note, 98 Am. Dec. 550. 

34 Tex. 137-138, HIQGINS ▼. STATE. 

Sainreme Court has No Jnrifldlction under statute of criminal case 
tried by jury in justice's court and appealed to district court. 

Approved in Moore v. State, 34 Tex. 155, reaffirming rule. 

34 Tex. 138-139, MOOBE v. STATE. 

Ball Bond Conditioned for Appearance of party to answer charge 
of ''shooting vrith intent to kill and murder" is bad, no such offense 
being known in Texas. 

Approved in Stewart v. State, 37 Tex. 577, and Meredith v. State, 
40 Tex. 481, both reaffirming rule. 

34 Tex. 139-142, CLABE v. HOPKINS. 

Under Statute Person Suing for Use of Another is mere nominal 
party, and on his death suit shall proceed in name of real party. 

Approved in Moore v. Rice, 51 Tex. 292, reaffirming rule; Smith v. 
Harrington, 3 Wyo. 506, 27 Pac. 804, holding assignee cannot be sub- 
stituted without notice for plaintiff dying pendente lite. 

34 Tex, 142-143, BICHABDSON ▼. STATE. 

For Married Man and Woman not His Wife to live for long time 
in same room containing only one bed is strong evidence of cohabita- 
tion in adultery. 

Approved in Price v. State, 18 Tex. Ap. 481, 51 Am. Rep. 325, 
holding adultery may be established and proven by circumstantial 
testimony; State v. Welch, 41 Or. 39, 68 Pac. 810, in prosecution 
for carnally knowing female under fifteen years of age, evidence 
that girl was prostitute and that she and accused occupied same bed 
for five weeks, proper to refuse instruction to acquit because no 
penetration shown; United States v. Griego, 11 N. Mi 408, 72 Pae. 
24, upholding instruction in prosecution for adultery that if defend- 
ants occupied same sleeping apartment alone, as sleeping-room, guilt 
presumed; State v. Brink, 68 Vt. 667, 35 Atl. 495, holding in prose- 
cution for adultery, corpus delicti may be proven from circum- 
stances. 

Distinguished in Parks v. State, 4 Tex. Ap. 135, 136, holding acts 
justifying conviction of adultery are defined by Penal Code; State 
V. Thompson, 133 Iowa, 746, 111 N. W. 321, holding evidence insuf- 
ficient to convict of adultery where mutual disposition and oppor- 
tunity for sexual intercourse only shown. 

34 Tex. 146-147, STATE ▼. BEOWN. 

Becognizance Stating Fact that accused was indicted for crime 
of "murder" is sufficient. 

Approved in Cundiff v. State, 38 Tex. 642, holding venue of offense 
need not be stated in bail bondL 

2 Tex. Notes—IT 



34 Tex. 148-168 NOTES ON TEXAS REPOBTS. 258 

S4 Tex. 149-151, STATE ▼. ELLIOT. 

Averment of Time in Indictment ia matter of form; hence indict- 
ment alleging commission of crime "on or about" certain day is 
sufficient. 

Approved in State t. McMickle, 34 Tex. 676, State v. Hill, 35 Tex. 
349y Johnson t. State, 1 Tex. Ap. 121, State ▼. Thompson, 10 Mont. 
559, 27 Pac. 351, State ▼. Woolsej, 19 Utah, 493, 57 Pac. 527, and 
State y. Harp, 31 Kan. 498, 3 Pac. 433, all reaffirming rule; United 
States V. McELinlej, 127 Fed. 170, upholding indictment alleging time 
of offense as "on or about" day named; State ▼. Cooper, 31 Kan. 
508, 3 Pac. 431, holding information alleging offense subsequent to- 
its filing correctible by amendment; State v. Lavake, 26 Minn. 528, 
6 N. W. 339, holding indictment need not charge offense on precisely 
specified day. 

Distinguished in Morgan t. State, 51 Fla. 79, 40 So. 829, charging 
that offense was committed "on or about" certain day is fatal error 
on motion in arrest of judgment. 

Overruled in Dmmmond v. State, 4 Tex. Ap. 152, holding mistake 
in allegation of time in indictment not subject of amendment. 

34 Tex. 152-153, JACOBS ▼. SPOFFoitD. 
Unstamped Note is Admijuible in evidence in state courts. 
See note, 48 L. B. A. 303. 

34 Tex. 165-169, EX PABTE WILLSE. 

Person Taking Doors Attached to House and converting them 
to his use and benefit, without owner's consent and with intent to 
deprive owner thereof, is guilty of theft. 

Approved in Harberger t. State, 4 Tex. Ap. 27, 30 Am. Rep. 158, 
reaffirming rule; Farris v. State (Tex. Cr.), 69 S. W. 141, stealing 
of parts of machine severed by thief from other machinery consti- 
tuting part of freehold is theft; Alvia v. State, 42 Tex. Cr. 551, 
60 S. W. 551, reaffirming rule under an indictment for burglary. See 
notes, 57 Am. Dec. 277; 42 Am. Bep. 449; 88 Am. St. Bep. 590. 

34 Tex. 169-168, WASSON ▼. DAVIS. 

Vendor's Lien upon Land continues so long as he manifests no 
purpose of releasing land and taking other security, and taking 
mortgage does not discharge lien. 

Approved in Black v. Bockmore, 50 Tex. 98, Olaze v. Watson, 55 
Tex. 568, and Farmers' etc. Nat. Bank v. Taylor, 91 Tex. 82, 40 S. 
W. 880, all reaffirming rule; McCauley v. Holtz, 62 Ind. 206, reaffirm- 
ing all rules of case regarding, vendor's lien; Flanagan v. Cushman, 
48 Tex. 244, holding assignee of debt carries lien unless parties' 
intention shown to be otherwise; Irwin v. Garner, 50 Tex. 56, holding 
taking deed of trust does not release lien on land for purchase price. 

Distinguished in Waldrom v. Zacharie, 54 Tex. 504, holding judg- 
ment in personam on note secured by vendor's lien does not de- 
stroy lien. 

Overruled in Partridge v. Logan, 3 Mo. Ap. 515, 516, holding 
vendor's lien waived by taking mortgage to secure payment of 
purchase price. 

Notes Being Given for Land and Merchandise, court will not 
enforce vendor's lien unless exact portion of note given for land be. 
shown. 



259 NOTES ON TEXAS BEPOBTS. 34 Tex. 168-189 

Approved in Swain y. Gato, 84 Tex. 398, reaffirming rule; Sutton 
T. Sntton, 39 Tex. 552, holding vendor's lien unenforceable unless 
portion of note given for purchase money ascertainable. 

34 Tez. 168-172, BBOWN ▼. TYIiEB. 

PnnitlTe Damages are Allowable on Diflsolntlon of Injniiction 
only on showing that injunction was sued out maliciously and with- 
out probable cause. 

Approved in Munnerlyn v. Alexander, 38 Tex. 128, holding dam- 
ages allowable for deprivation of use of property by wrongful at- 
tachment; Stell V. Paschal, 41 Tex. 644, holding owner of property 
unlawfully detained may recover actual damages; Galveston etc. 
By. V. Ware, 74 Tex. 60, 11 S. W. 920, reaffirming rule. See note, 
73 Am. Dee. 255. 

In Absence of Malice or want of probable cause, compensation 
for actual loss is awarded on dissolution of injunction. 

See note, 13 L. B. A. 312. 

Attoxnes^s Fees Incorred In Defense of injunction suit are not 
recoverable as damages on dissolution of injunction. 

See note, 16 L. B. A. (n. s.) 67. 

34 Tez. 173-175, OBEAMEB ▼. STATE. 

Wlien Husband is Examined Under Statate as Witness in behalf 
of wife in criminal prosecution, he is subject to same cross-examina- 
tion as other witnesses. 

Approved in Jones v. State, 38 Tex. Or. 100, 70 Am. St. Bep. 729, 
40 S. W. 809, Washington v. State, 17 Tex. Ap. 204, and Johnson v. 
State, 28 Tex. 26, 11 S. W. 668, all reaffirming rule; Stewart v. 
State, 52 Tex. Or. 281, 106 S. W. 688, on trial for murder where 
defendant's wife testified as to deceased's insults to her, which she 
communicated to her husband, who thereupon killed deceased, state 
cannot cross-examine as to new matter; Miller v. State, 37 Tex. Or. 
577, 40 S. W. 314, holding wife incompetent witness against husband 
prosecuted for aborting her; Messer v. State, 43 Tex. Or. 106, 63 
S. W. 644, cross-examination of wife must be confined to matters 
elicited on examination in chief. 

34 Tez. 176, GUEST ▼. PHILLIPS. 

Party Baiag for Benefit of Estate He Sepresents must show fact 
by allegations in petition. 

Approved in Wilson v. Hall, 13 Tez. Oiv. 492, 36 S. W. 329, re- 
affirming rule. 

84 T0Z. 181-185, RANDOLPH ▼. RANDOLPH. 

Where Attorney Performs Services for which he was employed, 
he is entitled, as against creditors of client, to treat and hold moneys 
in his hands as retainer, to reasonable amount. 

See notes, 13 Am. Dee. 342, 100 Am. Dec. 512, and 51 Am. St. 
Bep. 254. 

84 Tez. 186-189, VAN BROWN ▼. STATE. 

Application for Oontinnance to Obtain Testimony of Witnesses 
showing procurement of subpoenas and delivery thereof to sheriff 
for service makes no sufficient showing of diligence. 

Approved in Oantu v. State, 1 Tex. Ap. 404, reaffirming rule; 
Kelbourne ▼. State, 51 Fla. 72, 40 So. 190, upholding refusal of second 



34 Tex. 189-234 NOTES ON TEXAS REPORTS. 260 

continuance on ground of absence of witness where no diligence 
shown. 

34 Tez. 189-191, JENKINS v. McNEESE. 

Where Creditor Takes Out Execution against principal on judg- 
ment, and then waives it and has it returned unsatisfied, security 
is discharged, and execution will be enjoined. 

Approved in Morris v. Edwards, 1 Tex. Ap. Civ. 262, reaffirming 
rule. See note, 30 L. R. A. 567. 

Distinguished in Brown y. Chambers, 63 Tex. 136, holding creditor's 
delaying execution where it creates no lien will not release sureties. 
See note, 54 Am. St. Rep. 258. 

Appeal Bond Should State Names of all parties to judgment ap- 
pealed from. 

Approved in Putnam v. Putnam, 3 Ariz. 186, 24 Pac. 321, following 
rule. 

34 Tex. 191-219, DENSON v. BEAZLET. 

Insane Delusions will not Invalidate Will when testamentary 
dispositions do not appear to have been formed under such delusion. 

See note, 63 Am. St. Rep. 96. 

Miscellaneous. — Cockrill v. Cox, 65 Tex. 673, cited as showing 
propriety of trying will contest with jury. 

34 Tex. 220-224, FOX v. WOODS. 

Judgment Rendered upon Receipt for Confederate Money is void and 
properly enjoined. 

Approved in McGar v. Nixon, 36 Tex. 290, holding allowance and 
approval of claim payable in "Confederate money" are void and collec- 
tion thereof will be enjoined; Thompson v. Bohannon, 38 Tex. 245, 
reaffirming rule; Woflford v. Booker, 10 Tex. Civ. 175, 30 S. W. 69, 
holding judgment against person not party to suit void, and will be 
enjoined. See note, 31 L. R. A. 759. 

34 Tex. 224-226, HOUSTON ETC. BY. ▼. MTLBURN. 

Provision of Charter of Houston etc. Railroad, regarding appoint- 
ment of appraisers to determine compensation due owners for land 
taken by railroad, is constitutional. 

Approved in Ex parte Towles, 48 Tex. 448, in separate opinion 
majority holding act of 1875 giving appeal to district court in con- 
tested county seat election cases unconstitutional. 

34 Tex. 230-234, AI.IJBN v. STATE. 

Statute Making Persons doing acts or things constituting nuisance 
at common law guilty of misdemeanor is not repugnant to provision 
that no person shall be punished for crimes not expressly defined. 

Overruled in Johnson v. State, 4 Tex. Ap. 65, holding article 2034 
of Paschal'g Digest unconstitutional. 

Joint Verdict Against Several Persons jointly indicted for mis- 
demeanor in maintaining nuisance is erroneous. 

Approved in Flynn v. State, 8 Tex. Ap. 399, Whitcomb v. State, 
30 Tex. Ap. 273, 17 S. W. 260, Meadowcroft v. People, 163 HI. 89, 
90, 45 N. E. 312, 313, all reaffirming rule; Brightman v. Bristol, 65 
Me. 430, 20 Am. Rep. 712, holding where nuisance consists in wrongful 
use of building, use must be stopped. See note, 67 Am. St. Rep. 51. 



261 NOTES ON TEXAS REPORTS. 34 Tex. 237-282 

Ulider ft Joint Verdict aj^inst a firm, a judgment which is several 
is unauthorized. 

Approved in Brooks v. Collier, 3 Ind. Ter. 345, 58 S. W. 562, where 
verdiet is joint, judgment must be joint; where several, judgment must 
be several also. 

Undor Paschal's Digest, art. 2034, one conducting tallow factory in 
or near town is guilty of misdemeanor. 

See note, 38 L. R. A. 655. 

34 Tex. 2S7-248, AMMON Y. TH0BCP80N. 

Judgment for Damages for Wrongful Attachment and costs should 
be rendered against defendant and sureties on special bail bond. 

Approved in Dugey v. Hughes, 2 Tex. Ap. Civ. 19, holding judg- 
ment against defendant and sureties on reply bond for debt less 
damages proper. 

34 Ttac 245-258, BISHOP Y. HONEY. 

Mechanic may Beoover on' Building Gontract» though house built 
for purposes of prostitution, where mechanic not proved to be con- 
cerned or interested in illegal use of building. 

Approved in Labbe v. Corbett, 69 Tex. 507, 6 S. W. 810, upholding 
contract whereby sheep owner agrees to let another keep and shear 
them for consideration, though owner knew they were diseased and 
that other would drive them along road. See notes, 79 Am. Dec. 
277; 32 Am. Bep. 127. 

Distinguished in Hunstock v. Palmer, 4 Tex. Civ. 450, 23 S. W. 
295, holding rent under lease of house for purpose of prostitution not 
recoverable; Anheuser etc. Assn. v. Mason, 44 Minn. 321, 20 Am. St. 
Bep. 583, 46 N. W. 559, allowing recovery for beer sold by agent 
supposing it for use in house of prostitution. 

Knowledge by Vendor of Dlegal Purpose for which goods are to 
be used is no defense to action for price. 

Distinguished in Sawyer v. Sanderson, 113 Mo. Ap. 247, 88 S. W. 
154, inclusion of seller's license in sale of saloon and goodwill renders 
whole contract and note given therefor void, under statute prohibit- 
ing transfer of saloon licenses. 

Where Mechanic's Lien has attached, removal of house to another 
lot does not defeat it. 

Approved in Sanford v. Kunkel, 30 Utah, 386, 85 Pac. 366, applying 
rale where building removed by third person without knowledge or 
consent of owner or mechanic's lienholder. 

34 Tex. 253-262, WBIOHT Y. HATa 

Parol Evidence Is Inadmissible to vary or contradict terms of writ- 
ten instrument. 

Approved in St. Louis etc. E. Co. v. Dobie (Tex. Civ.), 75 8. W. 
341, following rule; Ablowich v. Greenville Nat. Bank, 22 Tex. Civ. 
274, 54 S. W. 795, holding agreement for attorney's fees cannot be 
varied by parol. See note, 15 L. B. A. 835. 

Distinguished in Meek v. Lange, 65 Neb. 786, 91 N. W. 696, execu- 
tory contract for sale of family homestead to which wife not party 
is invalid, and its nonperformance does not furnish basis for recovery 
of damages for loss of bargain. 

Assignment of Error that court erred in overruling motion for new 
trial is objectionable as not specifically pointing out error. 



34 Tex. 262-284 NOTES ON TEXAS REPORTS. 262 

Approved in Byrnes v. Morris, 53 Tex. 220, refusing to consider 
assignment of error referring generally to several charges. 

Husband's Contract to Convey Homestead during wife's lifetime is 
not void, but is unenforceable unless wife die without leaving family. 

Approved in Ley v. Hahn, 36 Tex. Civ. 210, 81 S. W. 355, where 
spouse contracted to sell homestead bought partly with wife's sepa- 
rate funds, but wife insane when deed signed, only husband's interest 
in community and his life interest in portion owned by wife passed; 
Bell V. Schwarz, 37 Tex. 574, holding homestead, on death of spouse, 
subject to homestead rights of survivor until abandoned; Astugue- 
ville V. Loustaunau, 61 Tex. 239, holding head of family without wife 
may give valid deed of trust to homestead; Marler v. Handy, 88 Tex. 
427, 31 8. W. 638, holding husband's deed to homestead operative on 
abandonment against him but not against wife; Kilgore v. Grave, 2 
Tex. Ap. Civ. 362, reaffirming rule. See notes, 65 Am. Dec. 487; 76 
Am. Dec. 80; 86 Am. Dec. 626; 56 L. B. A. 37. 

Overruled in Barnett v. Mendenhall, 42 Iowa, 302^ holding hus- 
band's agreement to convey homestead without wife's concurrence 
absolutely void. 

84 Tqz. 262-263, COVITT Y. ANDEB80H. 

Under Paschal's Digest^ Article 1495, where return shows service of 
citation on party's attorney, it must state the reasons for not serving 
it on the party personally. 

Approved in Oge v. Froboese (Tex. Oiv.), 63 S. W. 655, under 
articles 1395 and 1398 of the Revised Statutes, service of writ of 
error on defendant's attorney is not sufficient where defendant is 
resident of the county. 

34 Tex. 263-266, WEBSTEB y. COBBETT. 

Devise to Slave is Ineffectaal, bat not Void, while slave remains in 
state, and if property devised in trust for slave, trust continues until 
slave leaves state. 

Approved in Becht v. Martin, 37 Tex. 730, reaffirming rule. 

34 Tez. 267-276, BIVEB8 ▼. WABHINQTOH. 

Purchaser in Poflseaslon Under Bond for Title on payment of pur- 
chase money, continuing to occupy and improve property for ten 
years with vendor's knowledge, is presumed to have paid purchase 
price. 

See notes, 58 Am. Dec. 144; 73 Am. Dec. 211. 

Under Constitution of 1869, statutes of limitation were suspended 
from January 28, 1861, to adoption of constitution. 

Approved in Campbell v. Holt, 115 U. S. 630, 6 Sup. Ct. Bep. 214, 
29 L. 483, holding legislature may repeal law barring debt, thus re- 
viving debt. See note, 45 L. R. A. 610. 

34 Tex. 277-282, PEBBT'S ADMINIBTBATOB Y. SMITH. 

Parol is Admissible to Prove date, explain and make certain in- 
definite stipulation, and ascertain consideration for written contract. 

See note, 6 L. R. A. 40. 

34 Tex. 283-284, DUEB V. POLICE COUBT. 

District Court has No Appellate Jurisdiction under constitution of 
1866 of decision of police court exercising powers of road commis- 
sioners. 



263 NOTES ON TEXAS BBPOBTS. 84 Tex. 286-331 

Approved in Ex parte Towles, 48 Tex. 448, holding district court 
without appellate jurisdiction of contested « county seat election cases. 
See note, 55 Am. Dec. 806. 

Writ of Injunction la Available to Beatrain PoUce from transcend- 
ing legal province or violating individual rights or abusing discre- 
tion. 

Approved in Bourgeois v. Mills, 60 Tex. 77, holding district court 
may review road commissioners' acts in excess of their authority. 

34 Tex. 286-288, BAINBOI.T ▼. STATE. 

Recognizance Is Sufficient^ though not in compliance .with statute, 
if parties are bound by it. 

Approved in Mathena v. State, 15 Tex. Ap. 462, reaffirming rule. 

Conviction of Aasanlt is Unwarranted by proof that defendant had 
pistol in hand, and threatened to shoot complainant if he should cock 
his pistol. 

Approved in Chamberlain v. State, 2 Tex. Ap. 454, and White t. 
State, 29 Tex. Ap. 531, 16 S. W. 349, both reaffirming rule. 

34 Tez. 288-289, CLOSE Y. JUDSON. 

Letters Written by Defendant and set out in petition acknowledg- 
ing indebtedness may be made foundation of action^ and are admis- 
sible in evidence. 

See note, 70 Am. Dec. 282. 

34 Tex. 291-806^ WBIQHT Y. DOMNELL. 

Estate of Deceased Trespasser is not Liable for vindictive dam- 
ages, no matter how aggravated trespass may have been. 

See notes, 28 Am. St. Bep. 875; 13 L. B. A. 683. 

Objections to Charge of Court should be made when charge was 
given and proper charge asked. 

Approved in Banks v. Bodeheaver, 29 W. Va. 288, reaffirming rule. 

34 Tex. 307-309, OAfiHETT Y. McMAHAN. 

In Snlt on Accounts Bendered, portion of answer admitting part 
of amount sued for was properly allowed to be read to jury. 

Distinguished in Bauman v. Chambers, 91 Tex. 112, 41 S. W. 472, 
holding pleadings are not necessarily or even properly read to jury. 

Where Defendant in Attachment Snlt recovered in damages for 
wrongful attachment, verdict of jury apportioning costs between 
plaintiff and defendant is erroneous under statute. 

Approved in Flores v. Coy, 1 Tex. Ap. Civ. 456, reaffirming rule. 

Miscellaneous. — ^Bauman v. Chambers, 91 Tex. Ill, 41 S. W. 472, 
cited among other conflicting authorities in statement of case cer- 
tified to supreme court for decision. 

34 Tex. 309-831, McDONOXrOH Y. FIBST NAT. BANS. 

Bank Is not Bonnd by Contract made by promoter as commis- 
sioner of bank previous to its organization, although taking benefits 
thereof, unless bank adopts contract after organization. 

Approved in Wall v. Niagara Mining etc. Co., 20 Utah, 484, 59 
Pac. 401, holding corporation adopting benefit of promoter's con- 
tract is bound thereby; Weatherford etc. B. Co. v. Granger (Tex. 
Civ.), 23 S. W. 427, where promoter is indebted for procuring a bonus, 
the corporation accepting the bonus with knowledge assumes the in- 
debtedness. 



34 Tex. 331-351 NOTES ON TEXAS BEPOETS. 264 

Overruled in Weatherford etc. Ey. v. Granger, 86 Tex. 358, 40 
Am. St. Eep. 846, 24 S. W. 798, holding principal by accepting bene- 
fit of promoter's labor is not bound by his contract. 

Question of Corporation's Ratification of promoter's contract is one 
of fact for jury. 

See note, 26 L. B. A. 551. 

Miscellaneous. — Weatherford etc. E. B. v. Granger (Tex. Civ.), 22 
S. W. 71, cited as bearing on the question, but holding corporation 
liable for promoter's expenses, where, after organization, it accepts 
the subscription with knowledge of such expenses. 

34 T9Z. 331-332, MITBBAY V. STATE. 

State is not Party in Mnrder Trial under constitution, who may 
consent to trial of case by special judge, and district attorney can- 
not consent to such trial. 

Overruled in Davis v. State, 44 Tex. 524, and Early v. State, 9 Tex. 
Ap. 484, both holding state through district attorney may consent 
to selection of special judge in criminal case. 

34 Tex. 333, NICHOLS V. PAGE. 

Under Act of Aogost 13, 1870, supreme court has no appellate 
jurisdiction of action commenced in justice's court and taken to dis- 
trict court on certiorari. 

Approved in Greer v. Osborne, 37 Tex. 431, Bice v. Easbury, 41 
Tex. 421, Gillmore v. Garrett, 42 Tex. 517, and Dallas v. McAllister 
(Tex. Civ.), 30 S. W. 453, all reaffirming rule. 

34 Tez. 335-351, SESSUMS V. B0TT8. 

Act Begolating Collection of Debts had force hnd effect of law 
from enactment to repeal, and protected parties acting under and 
affected by it. 

Approved in Boggess v. Howard, 40 Tex. 157, holding justice . 
court judgment on which execution issues within year not dormant; 
Black V. Epperson, 40 Tex. 185, reaffirming rule; Miller v. Dunn^ 
72 Cal. 469, 1 Am. St. Eep. 72, 14 Pac. 30, holding void law protects 
those acting under it until declared void; Miller v. Dunn, 72 Cal. 
475, 14 Pac. 33, in dissenting opinion, majority holding void statute 
protects those acting under it until declared void; Hampton v. 
Dilley, 2 Idaho, 1162, 3 Idaho, 432, 31 Pac. 808, holding law, though 
void, is binding until declared void; Collier v. Montgomery Co., 103 
Tenn. 715, 54 S. W. 991, holding officer cannot repudiate contract after 
taking benefits, because law authorizing contract declared uncon- 
stitutional. See notes, 64 Am. Dec. 51, 53; 30 Am. St. Eep. 709. 

Act of 1866 Regulating Collection of Debts suspended act of 1842, 
respecting issuance of execution, from its passage until declared un- 
constitutional. 

Approved in Snow v. Nash, 50 Tex. 223, holding judgment lien 
barred where execution issued more than year from repeal of stay 
laws. 

Bights of Citizens cannot be Prejudiced by observing as law what- 
ever is promulgated by law-making power as law. 

Approved in Donaldson v. State, 15 Tex. Ap. 28, reaffirming rule; 
State V. Auditor, 47 La. Ann. 1695, 18 So. 752, 47 L. E. A. 512, 
holding laws must be treated as constitutional until declared uncon- 
stitutional; Hampton v. Dilley, 2 Idaho, 1162, 3 Idaho, 432, 31 Pac. 808, 
where after A elected judge of Logan county^ statute changes such 



/ 



265 NOTES ON TEXAS REPORTS. 34 Tex. 356-382 

eoimty to Lincoln county and A appointed judge of such county under 

Buch statute, but commissioners of first county refused to recognize 

nid statute and appointed B judge, and later the statute declared 

void, A was entitled to office of judge of Logan county. See note, 39 

h B. A. 458. 

irnder Act of 1866, judgment operated as a lien on land until year 
frotn time when execution could issue, i. e., for two years from rendi- 
tion o£ judgment. 

Approved in Cravens v. Wilson, 48 Tex. 338, holding lien of judg- 
ment holds if execution issues within year from repeal of stay laws. 



34 Tex. 356-370, HX7DS0N V. WHEELEB. 

Statute of Ltmitatioiis can be Interposed by Demurrer when peti- 
tion sliows plaintiff's cause of action to be barred by statute. 

Approved in Alston v. Richardson, 51 Tex. 7, reaffirming rule; 
I. & O. N. R. R. V. Donalson, 2 Tex. Ap. Civ. 184, holding limita- 
tions may be set up by exception to whole account; Davidson v. 
Mo. Pac. Ry., 3 Tex. Ap. Civ. 219, reaffirming rule. See notes, 41 
Am. Dec. 234; 76 Am. Dec. 114. 

Stsb^ntes of Limitations wUl not Bun in favor of fraudulent deed 
w^til fraud is, or by use of ordinary diligence should be, discovered. 
Approved in Kuhlman v. Baker, 50 Tex. 637, and Connoly v. Ham- 
mond, 58 Tex. 17, both reaffirming rule; Andrews v. Smithwick, 34 
"^^^^ 549, applying rule where defendant entitled to iand certificate 
*f*igned it to plaintiff and afterward fraudulently obtained posses- 
sion of and converted it and was sued for its value; Boren v. Boren, 
^^ Tex. Civ. 146, 85 S. W. 52, where deed executed twelve years 
prior and plaintiff alleged relators made him believe he had no in- 
^^rest in land under father's will, which was of record, fraud in 
procurement did not stop running of limitations; Vodrie v. Lynan 
\Tex. Civ.), 57 S. W. 681, instance where knowledge of the fraud 
^^ presumed from certain date. See notes, 60 Am. Dee. 212; 60 
^in. Dec. 513; 65 Am. Dec. 152; 84 Am. Dec. 591; 25 L. R. A. 567; 
22 L. R. A. (n. 8.) 209. 

Tenant at Will may Abandon Tenancy and take title from third 
person and hold adversely to landlord though latter absent from state. 
See note, 53 L. R. A. 950. 

34 Tex. 370-371, McNEIL v. OHTLDBESa 

Wliere Oanse of Action Set Up by Original Petition is not main- 
tainable, judgment on amended petition setting up new cause of ac- 
tion, without service, is erroneous. 

Approved in Stewart v. Anderson, 70 Tex. 599, 8 S. W. 300, hold- 
ing court without jurisdiction until service made on defendant. 

34 Tez. 371-382, PHELPS v. ZUSCHIAa. 

When Azrest is Made Under Lawful Authority for Probable Cause 
for improper purpose, person arrested may avoid for duress of im- 
prisonment contract made to secure release. 

Approved in Thompson v. Niggley, 53 Kan. 667, 35 Pac. 291, 26 
L. R. A. 803, holding securities procured through threats of prose- 
cution for offense not binding on maker; Landa v. Obert, 45 Tex. 
547, reaffirming rule; Sanford v. Sornborger, 26 Neb. 307, 41 N. W. 
1106, holding threats of prosecution for offense, party being guilty, 
do not constitute duress. See note, 0^ Am. St. Rep. 418. 



34 Tex. 382-454 NOTES ON TEXAS REPORTS. 26G 

84 Tez. 382-384, LEWIS ▼. HEABNE. 

Judgment Rendered After Repeal of ReTB&ue Stamp Act in snit 
commenced prior to repeal is not erroneous because pleadings or 
process not stamped. 

See note, 84 Am. St. Rep. 192. 

Judicial Notice la Taken of Fact that in 1863 federal revenue laws 
were suspended in Texas. 

See note, 48 L. R. A. 313. 

34 Tex. 388-389, SGANTIJN Y. KEMP. 

Holder of Note may Sue Suretiea without presenting note to admin- 
istrator of deceased principal for allowance. 

Approved in Willis v. Chowning, 90 Tex. 621, 59 Am. St. Rep. 
845, 40 S. W. 396, reaffirming rule. See note, 115 Am. St. Rep. 86. 

Distinguished in White v. Savage, 48 Or. 608, 87 Pac. 1042, where 
husband signed note for accommodation of wife, who thereafter died 
leaving estate, husband cannot restrain holder from pursuing him in- 
stead of filing note as claim against wife's estate. 

34 Tez. 392-394, DANSBY v. STATE. 

To Entitle Person to New Trial because of newly discovered evi- 
dence, affidavit must show due diligence to have testimony before 
court. 

See note, 12 Am. Dee. 143. 

New Trial will not be Granted on account of newly discovered 
evidence impeaching testimony of another witness. 

Approved in Gibbs v. State, 1 Tex. Ap. 19, reaffirming rule. 

34 Tex. 395-398, SWAIN Y. GATO. 

If Party Setting Up Vendor'a Idea can show precisely what part 
of consideration of note was for purchase price, he can have decree 
for that part. 

Approved in McOauley ▼. Holtz, 62 Ind. 206, reaffirming all rules 
of case; Sutton v. Sutton, 39 Tex. '552, holding note in payment 
of land enforceable if part given for land ascertainable; Irvin v. 
Garner, 50 Tex. 54, holding vendor's lien not released by taking 
new note in place of original; Black v. Rockmore, 50 Tex. 98, hold- 
ing enforceable deed of trust on homestead to extent given to secure 
payment for land. 

34 Tez. 401-403, WHITAXER ▼. BLEDSOE. 

Where Question la One of Partnership involving numerous matters 
of account, auditor should be appointed to state account between 
parties. 

Approved in Bailey v. Knight, 4 Tex. Ap. Civ. 474, 17 8. W. 1063, 
reaffirming rule. 

34 Tex. 413-439, HARRELL V. BARNES. 

Contracta for Payment of Money made before passage of legal 
tender act were payable only in coin unless otherwise stipulated. 

Approved in Bridges v. Reynolds, 40 Tex. 214, holding note payable 
in "gold or its equivalent in United States currency" payable in 
either. 

34 Tez. 441-454, 7 Am. Rep. 283, RODOERS v. BXTRCHARD. 

By Role in Shelley's Case, a deed to A B and heirs vests fee in 
A B, and if A B sells estate^ he sells what belongs to him and heirs 
unless reserving fee. 



267 NOTES ON TEXAS BEPOBTS. 34 Tex. 441-454 

Approved in Brown ▼. Bryant, 17 Tex. Civ. 455, 44 S. W. 400, 
holding widow and children take fee simple estates under devise for 
life. 

unrecorded Deed Conveys All Title of grantor. 

Approved in Farley v. McAlister, 39 Tex. 603, holding judgment 
creditor takes no lien on land previously sold, though deed unre- 
corded; Fletcher v. Ellison, 1 Posey U. C. 668, holding unrecorded 
deed from ancestor prevails over deed from heirs; Traphagen v. 
Irwin, 18 Neb. 198, see 24 N. W. 685, holding duly acknowledged 
and recorded deed constructive notice to all. 

Overruled in Morris v. Meek, 57 Tex. 387, title of purchaser from 
surviving wife prevails over prior unrecorded deed; Lewis v. Cole, 
60 Tex. 343, holding purchaser from heir without notice of father's 
bond for title takes good title. 

Subsequent Deed for Valuable Gonslderation and without notice, 
if duly recorded, prevails over prior unrecorded deed if parties claim 
from same grantor. 

Approved in Taylor v. Harrison, 47 Tex. 459, 26 Am. Bep. 307, 
holding parties claiming from same grantor, unregistered deed is 
not given preference over quitclaim; L. & H. Blum Land Co. v. 
Harbin (Tex. Civ.), 33 S. W. 154, must prove that they had no notice 
of the unrecorded deed; Bankin v. Miller, 43 Iowa, 19, holding rule 
applicable only where parties claim from eommon grantor. 

An Unrecorded Deed conveys all the title of grantor; hence 
grantor's heirs have no title to convey. 

Overruled in Wallace v. Crow (Tex. Sup.), 1 S. W. 373, holding 
subsequent bona fide purchaser without notice of prior lost deed 
obtains good title as against first purchaser. 

Quitclaim Deed Gonveys Only Interest of Qrantor at date of deed, 
and purchaser thereunder is deemed bona fide purchaser only as to 
grantor's interest. 

Approved in Bichardson v. Levi, 67 Tex. 363, 3 S. W. 446, Laughlin 
v. Tips, 8 Tex. Civ. 652, 28 S. W. 552, Fletcher v. EUison, 1 Posey 
U. C. 670, Shepard ▼. Hunsacker, 1 Posey U. C. 583, Hentig v. Bed- 
den, 35 Kan. 475, 11 Pac. 401, Johnson v. Williams, 37 Kan. 181, 
1 Am. St. Bep. 245, 14 Pac. 528, and Hamman v. Keigwin, 
39 Tex. 42, and all reaffirming rul^; Harrison v. Boring, 44 Tex. 260, 
262, holding quitclaim passes only grantor's present interest in land; 
Milam Co. v. Bateman, 54 Tex. 169, reaffirming rule; Benick v. 
Dawson, 55 Tex. 109, holding purchaser at bankrupt sale takes, under 
quitclaim deed, only grantor's interest; Gross v. Evans, 1 Dak. 
4U0, 46 N. W, 1134, holding grantee under deed conveying grantor's 
right, title, etc., not bona fide purchaser; Sharp v. Cheatham, 88 Mo. 
51U, holding purchaser under quitclaim deed takes land subject to 
agreement regarding party-wall; Buchanan v. Wise, 28 Neb. 328, 
44 N. W. 463, holding purchaser under quitclaim cannot, without 
proof, be deemed bona fide purchaser. See notes, 10 Am. Bep. 
204; 37 Am. Bep. 109; 1 Am. St. Bep. 247; 59 Am. St. Bep. 540; 29 
L. B. A. 36; 1 L. B. A. 798. 

Distinguished in Graham v. Hawkins, 38 Tex. 635, holding holder 
of land bona fide purchaser though quitclaim deed link in chain of 
title. 

Limited in Taylor v. Harrison, 47 Tex. 461, 26 Am. Bep. 308, 
holding whether deed is quitclaim deed and passes only grantor's 
interest depends on circumstances; Finch v. Trent, 3 Tex. Civ. 571, 



34 Tex. 459-516 NOTES ON TEXAS REPOETS. 268 

22 S. W. 133, holding rule inapplicable where quitclaim deed contains 
habendum clause. 

34 Tex. 459-463, PLEASANTS ▼. DAVTOSON. 

Undar Statute of 1862, where testator placed estate in hands of 
executor, creditor need not present claim to executor for allowance 
before suing thereon. 

Approved in Smyth v. Caswell, 65 Tex. 381, 382, reaffirming rule; 
Finlay v. Merriman, 39 Tex. 60, holding bad plea in abatement that 
claim was not sued on by administrator in time; Black v. Rockmore, 
50 Tex. 99, and Moore v. Kirkman, 19 Wash. 608, 54 Pac. 26, both 
reaffirming rule. 

34 Tez. 463-469, CROMWELL v. HOLLIDAT. 

Tenant In Common cannot Maintain, in his own name, trespass 
to try title to whole eitate when suit is for plaintiff's interest alone. 

Approved in King v. Hyatt, 51 Kan. 512, 37 Am. St. Rep. 308, 
32 Pac. 1107, holding cotenant suing to recover whole tract of land 
may recover only his interest; dissenting opinion in Godfrey v. 
Rowland, 17 How. 591, majority holding in ejectment by one coten- 
ant, verdict may be general entitling him to possession to exclusion 
of defendant. See notes, 70 Am. Dec. 314; 6 L. R. A. (n. s.) 716. 

34 Tez. 470-474, CASTLES v. BURNEY. 

Under Statute, When Judge la Disqualified, parties may choose 
some other person to try ease, but judgment by person chosen by 
plaintiff alone is voidable. 

Approved in Mitchell v. Adams, 1 Posey U. C. 121, reaffirming 
rule. See note, 25 Am. Rep. 541. 

34 Tex. 474-478, HAMMAN ▼. LEWIS. 

Judgment for Which Appeal may be Taken must show some final 
disposition of case. 

Approved in Boren v. Jack (Tex. Civ.), 73 S. W. 2061, order sus- 
taining demurrer which does not show dismissal of petition is not 
final appealable order. 

34 Tez. 478-516, WALKER V. HOWARD. 

Mere Equitable Title to Land is sufficient to maintain trespass 
to try title. 

Approved in New York etc. Land Co. v. Hyland, 8 Tex. Civ. 614, 
28 S. W. 211, reaffirming rule. 

Surviving Husband may Sell Community Property to reimburse 
himself for <»ommunity debts paid out of his separate funds. 

Approved in Wenar v. Stenzel, 48 Tex. 489, holding sale of com- 
munity property for community debts is valid; Moody v. Smoot, 
78 Tex. 122, 14 S. W. 286, holding surviving husband has right to 
settle community debts out of community property. See* note, 19 
L. R. A. 235. 

Surviving Husband has almost unqualified power to control, sell, 
or dispose of community property under act of August 26, 1856. 

Approved in Magee v. Rice, 37 Tex. 500, holding surviving hus- 
band cannot sell whole community property to exclusion of children; 
Yancy v. Batte, 48 Tex. -76, in dissenting opinioo, majority holding 
heirs may recover half of community property sold by surviving 



269 NOTES ON TEXAS EEPORTS. 34 Tex. 516-542 

husband; Johnson v. Harrison, 48 Tex. 266, holding children may 
recover community property of wife sold by surviving husband. 

HeixB are Only Entitled to Besidue of community property after 
payment of <community debts. 

See note, 19 L. B. A. 234. 

34 Tez. 516-622, SMITH v. NELSON. 

Transaction is Sale for Confederate Money where auctioneer in 
1S63 announces that Confederate money would be received on bids 
for hire of slaves of estate. 

Overruled in Shearon v. Henderson, 38 Tex. 249, holding suit 
maintainable by administrator on contract payable in Confederate 
vTirrency. 

34 Tex. 522-625, TIEMANN ▼. TIEMANN. 

Miscellaneous. — Tiernan v. Baker, 63 Tex. 644, cited as having 
been referred to in brief of counsel as being part of record to case 
at bar. 

Wbere Divorce Decree Awarded Wife custody of child, it could also 
award her life estate in homestead. 

Approved in Long v. Long, 29 Tex. Civ. 539, 69 S. W. 430, in 
divorce court can only decree to complainant undivided half interest 
in fee of community property and use of entire property for life. 
See note, 23 L. B. A. 240. 

34 Tez. 525-526, BBOWN Y. STATE. 

Becognlzance in Misdemeanor Case only binding principal to ap- 
pear at current term is insufficient. 

Approved in Howard v. State, 30 Tex. Ap. 682, 18 S. W. 791, 
holding recognizance must bind obligor to appear before trial court 
t« abide appeal. See note, 67 Am. St. Bep. 198. 

34 Tez. 626y BBOWN y. STATE. 

Confessions by Accused while in custody are inadmissible unless 
he has first been cautioned. 

See note, 18 L. B. A. (n. s.) 792. 

34 Tez. 528-630, JOHNSTON ▼. POWELL. 

Defendant had Induced Plaintiff to Purchase Land by fraud; 
cancellation of contract of sale, recovery of personal property, and 
injunction restraining transfer of note are proper. 

See notes, 70 Am. Dec. 341; 28 L. B. A. 578. 

34 Tez. 533-^36, JOHNSTON V. J08E7. 

Agreement that Purchaser of Note agreed at time of purchase that 
he would take Confederate money in payment is no defense in action 
against maker. 

See note, 43 L. B. A. 459. 

34 Tez. 536-542, ANDBUS V. BANDON. 

Statutes of Limitation were Suspended by constitution from 1861 
to approval of state constitution, March 30, 1870. 

Approved in Whetstone v. Coffey, 48 Tex. 274, holding wife after 
separation not barred from recovering portion of homestead sold 
by husband. 



84 Tex. 544-573 NOTES ON TEXAS REPORTS. 270 

Wife Shares in Estate when husband dies without complying with 
separation agreement requiring him to divide community property. 
See note, 83 Am. St. Rep. 879. 

34 Tex. 644-660, ANDREWS v. SMITHWIOS. 

Statute of Lhnltations will not Bmi in favor of vendor fraudu- 
lently regaining possession of land certificate until vendee discovers 
fraud. 

Approved in Barker v. Swenson, 66 Tex. 408, 1 8. W. 118, holding 
suit to recover land certificate or value barred after two years; 
M'Kneely v. Terry, 61 Ark. 544, 33 S. W. 957, reaffirming rule; Wim- 
berly v. Pabst, 55 Tex. 591, arguendo. 

Public Becords are not Oonstractlye Notice in favor of fraudulent 
trustee till such time as law presumes actual notice to cestui que 
trust. 

See note, 22 L. R. A. (n. s.) 216. 

34 Tez. 550-^54, COLQIHTT v. STATE. 

Language Used by Parties at Time of Assaiilt ia admissible in 
evidence as part of res gestae. 

Approved in Ry. Go. v. Herrick, 49 Ohio St. 30, 29 N. E. 1054, 
holding declarations of strangers to record admissible to rebut pre- 
sumption of negligence. 

84 Tex. 654-657, BAREI«A v. ROBERTS. 

On Death of Mother of Bastard, putative father is entitled to 
guardianship. 

See notes, 65 L. R. A. 696; 6 L. R. A. 705. 

84 Tbz. 668-^60, WILLIAMS v. STATE. 

Attempt to Trespass on another's personalty and intent to deprive 
owner of ownership therein are necessary to theft. 

See note, 88 Am. St. Rep. 561. 

Where Prosecutor was WllUng party to wager on fraudulent devise, 
ofFense is not larceny. 

See notes, 88 Am. St. Rep. 595; 20 L. R. A. (n. s.) 1165. 

34 Tez. 666-^66, STATE v. BECTOB. 

Indictment for Willfully and Wantonly Billing, etc., any dumb 
animal must, under code, aver that injury to animal was willfully 
and wantonly inflicted. 

Approved in Rountree v. State, 10 Tex. Ap. Ill, reaffirming rule; 
State V. Churchill, 15 Idaho, 657, 98 Pac. 857, 19 L. R. A. (n. a.) 835, 
under Rev. Stats. 1887, sec. 7153, punishing person who maliciously 
kills or maims any animal, one killing dogs merely through desire 
to remove them from premises and not knowing who owner was, is 
not guilty. See note, 128 Am. St. Rep. 165, 173. 

34 Tez. 666-668, LONG v. STATE. 

"An Assault with Intent to Kill" is not offense under Texas crim- 
inal law, and court cannot supply word omitted by jury finding 
such verdict. 

Approved in Sheffield v. State, 1 Tex. Ap. 642, reaffirming rule. 

Miscellaneous. — See note, 3 L. R. A. 747. 

34 Tez. 672-673, SHADLE v. STATE. 

Where Weapon as Used Is not Necessarily Deadly, whether under 
circumstances it is deadly or not is question for jury. 



271 NOTES ON TEXAS EEPOETS. 34 Tex. 573-610 

Approved in Sheffield v. State, 1 Tex. Ap. 642, Hunt v. State, 6 
Tex. Ap. 664, and Blige t. State, 20 Fla. 752, 51 Am. Bep. 629, all 
reaffirming rule. See note, 21 L. B. A. (n. b.) 500. 

34 Tex. 673-^88, GRANT ▼. OHAMBEBS. 

ClTil Tribnnals of Bebel States were recognized, and not abro- 
gated hy reconstruction laws and military authorities of United 
States. 

Approved in Gates v. Johnson Co., 36 Tex. 145, reaffirming rule. 

Courts Organized XTnder Beconstmctloii Acts were not abolished 
by constitution of 1869, and judges appointed under reconstruction 
continued in office until successors qualified. 

Approved in Daniel v. Hutcheson, 4 Tex. Civ. 244, 22 S. W. 280, 
reaffirming rule. 

Antbority of Person Exercising Judicial Functions can only be 
<Iuestioned by writ of quo warranto. 

Approved in Brennan v. Bradshaw, 53 Tex. 337, holding quo war- 
ranto proper proceeding to question incorporation of city. 

Jndgmecit of District Court Dismissing Bill for Injunction at cham- 
bers during vacation is erroneous. 

Approved in Aiken v. Carroll, 37 Tex. 73, holding error to dissolve 
injunction during vacation; Wagner v. Edmiston, 1 Tex. Ap. Civ. 
371, reaffirming rule; Ex parte Ellis, 37 Tex. Or. 542, 66 Am. St. 
Bep. 834, 40 S. W. 276, holding void, judgment holding person guilty 
of contempt made during vacation. 

Miscellaneous. — Daniel v. Hutcheson, 86 Tex. 63, 22 S. W. 937, 
cited as showing practical construction given reconstruction acts. 

34 Tez. 589-608, SMITH Y. TAYLOB. 

Constitution of Texas Bepubllc intended to reserve to state right 
to appropriate private property for public use on making just com- 
pensation. 

Approved in Smeaton v. Martin, 57 Wis. 373, 15 N. W. 407, hold- 
ing necessity for taking private property for public use question 
for legislature. 

Compensation for Private Property taken for public use need 
not be made instanter if provision made for its payment. 

Approved in Travis Co. v. Trogdon, 88 Tex. 306, 31 S. W. 359, 
reaffirming rule. See note, 31 Am. Dec. 373. 

TJnta Formal Patent has Issued, government has right to appro- 
priate land even though location thereon has been made. 

Overruled in Snider v. Methvin, 60 Tex. 499, holding person 
locating certificate and having survey made has vested right under 
constitution. 

Acts of Ghiardlan Ad Litem where unimpeached for fraud or gross 
misconduct are binding on ward. 

See note, 97 Am. St. Bep. 996. 

34 Tex. 625-646, SHEBLEY v. BYKNE8. 

Miscellaneous. — Cited in State v. Paxton, 65 Neb. 122, 90 N. W. 
987, to point that statutory bonds require no consideration. 

34 Tex. 608-610, LEWIS Y. ALEXAin>EB. 

Draft In Pavor of Innocent Party is not tainted with illegality 
of business in which makers are engaged and money used. 

Approved in Lewis v. Alexander, 51 Tex. 591, reaffirming rule. 



34 Tex. 617-651 NOTES ON TEXAS BEPORTS. 272 

Miscellaneous. — Lewis ▼. Alexander, 51 Tex. 586, cited as recog- 
nizing the doctrine that new partner bound by agreement that sur- 
vivor continue partnership. 

34 T6Z. 617-623, BAaiAND ▼. BOOEBS. 

Homestead in Town or City may consist of separate lots or par- 
cels of aggregate value not exceeding two thousand dollars. 

Bee notes, 2 Woods, 662, 70 Am. Dec. 352, and 87 Am. Dec. 467. 

Overruled in Iken v. Olenick, 42 Tex. 202, holding homestead 
consists of only one parcel of land used as homestead. 

Widow has Bight to have Homestead set apart out of whole 
property of deceased husband, regardless of former homestead. 

Distinguished in McAlister v. Farley, 39 Tex. 560, holding children 
not entitled as against creditors to homestead from father's estate 
if homestead fixed; and overruled in Hogers v. Ragland, 42 Tex. 
444, holding wife cannot abandon homestead on husband's death 
and select new one. 

Miscellaneous. — State v. Houston, 35 La. Ann. 1195, erroneously 
cited as holding appellate courts review questions of contempt only 
in habeas corpus proceedings; Rogers v. Ragland, 42 Tex. 438, re- 
ferring to same case on former appeal. 

34 Tex. 623-625, HH.fi Y. STATE. 

Indictment for Assault must charge assault as defined by statute. 

Approved in Grayson v. State, 37 Tex. 229, holding indictment for 
assault and battery must allege injury and intent to injure; State 
V. Woolsey, 19 Utah, 493, 57 Pac. 427, holding information under 
statute need not state precise time of offense. 

34 Tex. 646-647, STATE V. ABCHEB. 

It is Error to Qnash Indictment for assault to murder for in- 
sufficiency if sufficient to support conviction for simple assault. 

Approved in Nelson v. State, 2 Tex. Ap. 227, holding indictment 
for aggravated assault not alleging aggravating circumstances good 
for simple assault. 

Overruled in Meredith v. State, 40 Tex. 481, holding indictment 
for assault to kill and murder sufficiently charges assault with in- 
tent to murder. 

34 Tex. 647-651, SAN ANTONIO ▼. DICKMAN. 

Granting New Trial Belnstates Case on Docket as though never 
tried, and court cannot vacate order made at previous term, grant- 
ing new trial. 

Approved in Schintz v. Morris, 13 Tex. Civ. 586, 35 S. W. 518, 
holding setting aside part of verdict annuls whole verdict. 

Distinguished in Texas etc. Ry. Co. v. Sheftall, 133 Fed. 724, 66 
C. C. A. 552, dismissal as to one of two joint tort-feasors not error 
in absence of circumstances tending to show enhancement of dam- 
ages because of suit having been brought against both; Town v. 
Guerguin, 93 Tex. 611, 57 S. W. 566, holding conditional grant of 
trial absolute on performance of condition; Ilargave v. Boero (Tex. 
Civ.), 23 S. W. 404, arguendo and holding conditional order for new 
trial void. 

Order for Conditional New Trial is not absolutely void, but objec- 
tions thereto on that ground must be made on or before the next 
term of court. 



273 NOTES ON TEXAS EEPOETS. 34 Tex. 651-673 

Approved in Strait v. Cole (Tex. Civ.), 51 S. W. 1093, where 
objection was waived by lapse of time in makiog objection. 

Distingaished in Town v. Guerguin (Tex.), 57 S. W. 566, where 
different question was involved. 

34 Tex. 651-656, DOBSEY v. STATE. 

Where Threats Against Defendant's Life are shown to have been 
made by deceased, evidence that latter was dangerous character is 
admissible. 

See note, 3 L. B. A. (n. s.) 357. 

34 Tez. 659-662, CONNEB Y. STATE. 

In Criminal Cases law requires that guilt of accused be estab- 
lished beyond reasonable doubt. 

See note, 94 Am. Dec. 222. 

Jury must not Deny Proper Weight to confessions of prisoner in 
own favor. 

Approved in Burnett v. People, 204 HI. 226, 98 Am. St. Bep. 206, 
68 N. E. 512, 66 L. B. A. 304, following rule. 

34 Tex. 662-667, SHELTON V. STATE. 

In Murder Trial, Opinion of Medical Man as to cause of death and 
whether injury was inflicted before or after death, is admissible. 

Approved in Waite v. State, 13 Tex. Ap. 180, Powell v. State, 13 
Tex. Ap. 254, Henry v. State (Tex. Cr.), 49 S. W. 97, Bobinson v. 
State (Tex. Cr.), 63 S. W. 870, and McNamee v. State, 34 Neb. 299, 
51 N. W. 824, all reaffirming rule; Pigg v. State, 43 Tex. Ill, holding 
opinion of family physician as to insanity admissible. See notes, 
€6 Am. Dec. 235, 236. 

Miscellaneous. — See note, 11 L. B. A. 545. 

34 Tez. 668-673, HOLMAK ▼. MAYOB OF AUSTIN. 

Snpreme Conrt has Jurisdiction under constitution to issue writ 
of habeas corpus, and exercise general control over inferior tribunals. 

Approved in Ex parte Wright, 65 Ind. 511, reaffirming all rules 
of •cited*' case as to contempt of court; Milliken v. City Council, 54 
Tex. 392, holding district court may enforce judgment on right to 
mayor's office by mandamus; Ex parte Degener, 30 Tex. Ap. 577, 
17 8. W. 1115, holding habeas corpus granted where person held 
without authority or authority abused; Ex parte Park, 37 Tex. Cr. 
597, 66 Am. St. Bep. 841, 40 S. W. 302, holding commitment for 
contempt in refusing to answer revised upon habeas corpus; Ex 
parte Perkins, 29 Fed. 908, holding order made without jurisdiction 
punishing for contempt reviewable on habeas corpus; Ex parte 
Ooodin, 67 Mo. 646, dissenting opinion, majority holding person 
committed for contempt for refusing to serve on jury not entitled 
to writ. See note, 22 Am. St. Bep. 422. 

Befnsal of Witness to Answer Legal and Proper Question is con- 
tempt of court, but refusal to answer improper question is not. 

Approved in ToUeson v. Greene, 83 Ga. 502, 10 S. E. 120, holding 
refusal to deliver moneys to receiver contempt, though person under 
prosecution for stealing same; In re Bosenberg, 90 Wis. 586, 63 
X. W. 1066, holding refusal to produce books and papers when or- 
dered is contempt; Miskimmins v. Shaver, 8 Wyo. 412, 58 Pac. 416, 
reaffirming rule. 

2 Tex. Notes— 18 



34 Tex 675-687 NOTES ON TEXAS BEPORTS. 274 

Supreme Court may on Habeas Corpus inquire into validity of com- 
mitment for contempt by inferior court. 

Approved in Ex parte Duncan, 42 Tex. Cr. 672, 62 S. W. 761, 
followingr rule. 

Miecellaneous. — Cited in Ex parte Ireland, 38 Tex. 366, in respond- 
ent's answer. 

34 Tex. 675, STATE v. DUNHAM. 

Instance of Sufficiency of Indictment for selling an estray. 

Approved in Floyd v. State (Tex. Cr.), 68 S. W. 691, information 
for unlawfully selling an estray need not negative owner's consent 
to sale. 

34 Tex. 676, STATE ▼. MclQCKIiE. 

Indictment Charging Aggravated Assault "on or about" certain 
day upon "one Claiborne, whose name to the grand jurors aforesaid 
is unknown," sufficient. 

Approved in Johnson v. State, 1 Tex. Ap. 121, and State v. Wool- 
sey, 19 Utah, 493, 57 Pac. 427, both reaffirming rule. 

84 Tex. 677-684, MOBOAN y. STATE. 

Indictment Charging Defendant With Theft in circuitous manner, 
but with certainty, is sufficient. 

Approved in Irwin v. State, 7 Tex. Ap. 81, holding prosecution 
and acquittal under one state no bar to prosecution under another; 
Wright V. State, 17 Tex. Ap. 159, holding stealing cattle of different 
persons at same time constitutes but one offense; McCoy v. State, 
46 Ark. 147, holding acquittal does not bar prosecution for acts not 
within former prosecution; State v. Williams, 45 La. Ann. 938, 12 
So. 933, holding autrefois acquit bars prosecution if same evidence 
supports both indictments; State v. Sullivan, 9 Mont. 496, 24 Pac. 
25, holding former acquittal no bar where material variance in 
names of persons injured; State v.' Magone, 33 Or. 575, 34 Pac. 
650, holding former acquittal of malicious destruction of personal 
property no bar to prosecution for disinterment* of body. See note, 
58 Am. Dec. 538. 

34 Tex. 684-687, PBESTON v. NAVASOTA. 

Proprietor of Town Selling Lots according to. plat recorded in 
county clerk's office irrevocably grants streets and alleys to public. 

Approved in City of Corsicana v. Anderson, 33 Tex. Civ. 600, 78 
S. W. 263, Lamar Co. v. Clements, 49 Tex. 355, both reaffirming 
rule; Temple v. Sanborn, 41 Tex. Civ. 70, 91 S. W. 1097, where owner 
of townsite subdivision sold lots fronting on strip marked on re- 
corded map as ''Reserved for Bailway Purposes," he was estopped 
from appropriating strip for other purposes; Evans v. Scott, 37 Tex. 
Civ. 379, 83 S. W. 877, prescriptive right by public in road may be 
acquired by adverse user for ten years without assertion of right 
by county commissioner's court; Corsicana v. White, 57 Tex. 385, 
holding person conveying lots described by reference to maps and 
streets bound by such; Bond v. Texas etc. By., 15 Tex. Civ. 286, 
39 S. W. 978, reaffirming rule; Weynand v. Lutz (Tex. Civ.), 29 
S. W. 1099, where owner of a plat expressly dedicates creek to 
vendees, it vests them with all the privileges and easements repre- 
sented on the plat. See note, 27 Am. Dec. 568. 



275 NOTES ON TEXAS BBPOBTS. 34 Tex. 689-716 

34 Tttz. 689-713, KOTTWITZ v. ALEXANDES. 

If Any Part of GonsideratioiL or any part of contract is illegal, 
if illegality enters into and forma part of contract, whole contract 
is Yoid. 

Approved in Penn v. Bomman, 102 HI. 531, holding loan by bank 
to debtor in yiolation of eharter illegal. See note, 12 L. B. A. 
(n. lu) 593. 

Intention of One Party to Contract to do illegal act thereby will 
not invalidate contract as against other party. 

Approved in Lewis v. Alexander, 51 Tex. 591, holding draft good 
though lender knew money was for illegal enterprise; Fox v. State, 
63 Neb. 188, 88 N. W. 177, applying mle to stipulation for settle- 
ment of judgment in bastardy proceedings, where one party desired 
stipulation to defraud his father. See notes^ 12 lu B. A. (n. s.) 
S95; 9 li. B. A. 657. 

Court Knows of No Iaw of TTnlted States which was violated by 
exporting cotton from Texas to Mexico during Civil War. 

Overruled in Whitis v. Polk, 36 Tex. 626, holding illegal, contract 
for conveyance of cotton from Texas to Mexico during war. 

LawB are to be Constmed agreeably to dictates of common sense, 
and to carry out intention of legislature. 

Approved in Walker v. State, 7 Tex. Ap. 258, holding statutes 
must be construed sensibly and according to legislative intent; 
Lane ▼. Commissioners, 6 Mont. 476, 13 Pac. 137, holding statutes 
should be so construed as to carry out legislative intent. 

Partners may Agree that on Death of either survivor may con- 
tinue partnership in firm name. 

See note, 5 L. B. A. 410. 

Miscellaneous. — ^Lewis t^ Alexander, 34 Tex. 610, cited as contain- 
ing recital of facts. 

84 Tex. 713-716, BIBD Y. MONTGOlflEBT. 

Final Judgment Against Plaintiff settling disputed boundary bars 
second suit regarding same boundary by same plaintiff against dif- 
ferent defendant. 

Approved in Birdseye v. Shaeffer (Tex. Civ.), 57 S. W. 989, re- 
affirming rule; Spence v. McGowan, 53 Tex. 33, holding only one 
action of trespass to try title permissible to determine boundary; 
Barbee t. Stinnett, 60 Tex. 167, denying right to second action to 
try title, location of boundary being real question. 

Distinguished in Jones v. Andrews, 72 Tex. 13, 9 S. W. 171, per- 
mitting second suit to try title where former did not establish 
boundary. 



NOTES 

ONTHB 



TEXAS REPOETS 



CASES IN 35 TEXAS. 



86 T0X. 1-10, LLOYD ▼. BBINOK. 

Coart hms No Discretion to set aside, of its own motion, rerdiet 
responsive to issues, though against eridence; remedy is motion in 
arrest, or for new trial. 

Approved in Clark v. Pearee, 80 Tex. 151, 15 8. W. 789, applying 
rale to appeals from judgment for actual and exemplary damages; 
Hnme ▼. Sehintz, 91 Tex. 205, 42 8. W. 544, holding part of verdict 
in defendants' favor not affected by setting aside part favoring 
plaintiff; Houston etc. B. B. v. 8trycharski, 92 Tex. 10, 37 8. W. 
417, sustaining district court in overruling motion to enter judg- 
ment in disregard of verdict. 

Denied la Fort Wayne etc. By. ▼. Wayne Circuit Judge, 110 Mich. 
174, 68 N. W. 116, holding court may set aside verdict in damage 
suit of its own motion; State ▼. Adams, 12 Mo. Ap. 442, holding 
court may grant new trial of its own motion. 

Mandamus Lies to Compel entry of judgment on valid verdict, 
such action being purely ministerial. 

Approved in Aycock v. Clark, 94 Tex. 376, 60 8. W. 666, reaffirm- 
ing rule; Hume v. 8chintz, 90 Tex. 75, 36 8. W: 430, it is the impera- 
tive du^ of court to give judgment in accordance with the verdict; 
Sehintz t. Morris, 13 Tex. Civ. 597, 35 8. W. 524, allowing man- 
damus against judge to compel him to determine issue of malicious 
prosecution; Corthell v. Mead, 19 Colo. 393, 35 Pac. 743, allowing 
mandamus to compel justice of peace to enter judgment; Bhodes 
V. Board of Public Works, 10 Colo. Ap. 107, 49 Pac. 433, mandamus 
will issue to compel board of public works to do acts that are 
purely ministerial; 8tate t. Beall, 48 Neb. 819, 67 K W. 869, grant- 
ing mandamus to compel judge to enter judgment according to ver- 
dict; dissenting opinion, People v. Superior Court, 114 Cal. 479, 46 
Pac. 386, majority denying mandamus to enter judgment when action 
of court not ministerial. See note, 55 Am. Dec. 806. 

Appeal is not an Adequate Bemedy to correct error of court in 
refusing to enter judgment on valid verdict in action for debt, and 
mandamus allowed. 

Distinguished in Ex parte Pearee, 80 Ala. 199, holding appeal ade- 
quate remedy where lower court erroneously allowed a repleader. 

(277) 



35 Tex. 15-26 NOTES ON TEXAS EEPORTS. 278 

Where Verdict Responds to Issues and Evidence and is in due 
form, court must enter judgment in conformity therewith. 

Approved in St. Louis etc. By. Co. t. McArthur, 96 Tex. 66, 70 
S. W. 318, assignment that verdict is contrary to evidence in specific 
particulars pointed out is sufficient to review that question. 

35 Tez. 15-17, SADFOBD ▼. STATE. 

Where Indictment Alleges Property Stolen from steamship agent's 
possession, proof that property was taken from vessel, and had 
never been in agent's possession is fatal variance. 

Approved in Brown v. State, 35 Tez. 692, setting aside conviction 
where ownership of property stolen was not proved as laid; Cady 
V. State, 4 Tex. Ap. 239, where evidence does not show proof of 
value. 

Distinguished in Thomas v. State, 1 Tex. Ap. 296, holding proof of 
possession by agent not variance from indictment, alleging posses- 
sion by principal. 

Oonviction for Theft of Tobacco set aside where state failed to 
prove it of any value. 

Approved in Meyer v. State, 4 Tex. Ap. 122, where no proof of 
value; Hall v. State, 15 Tex. Ap. 41, setting aside conviction where 
value of articles stolen is not proved. 

35 Tex. 17-19, STATE ▼. OUBBIE. 

Averment That Oonnty Attorney was duly elected and qualified 
is a sufficient averment that he is a judicial officer, and indictment 
will lie for bribery. 

Approved in Reed v. State, 43 Tex. 321, holding bribery of an 
attorney is bribing a judicial officer. See note, 116 Am. St. Bep. 
42. 

Oonnty Attorney has Same Duties and responsibilities as district 
attorney. 

Approved in People v. Salsbury, 134 Mich. 552, 96 N. W. 941, city 
attorney is executive or judicial officer within statute punishing 
receipt of bribes by «uch officers. 

Miscellaneous.— Taylor v. Hall, 71 Tex. 218, 9 S. W. 143, to point 
that statutes in pari materia are to be construed together. 

35 Tez. 20, BT7BNS ▼. WHEY. 

Judgment will be Affirmed in Absence of assignment of errors and 
of errors affecting merits apparent on face of record. 

Approved in Putnam v. Putnam, 3 Ariz. 187, 24 Pac. 322, and 
Wolfley V. Gila Biver etc. Co., 3 Ariz. 178, 24 Pac 257, both fol- 
lowing rule. 

35 Tex. 21-26, THOMPSON ▼. BBANOH. 

Where Suit was Brought upon a claim against decedent before 
same was allowed and approved, a demurrer was properly filed, and 
should have been sustained. 

Approved in Ballard v. Murphy, 4 Tex. Ap. Civ. 243, 15 S. W. 
43, no suit upon a claim could be brought in justice's court, unless 
claim had been presented to administratrix. 

Where Suit was Brought upon a claim against decedent before 
same was allowed and approved, and demurrer was filed, court had 
no jurisdiction of the cause. 



279 l^TOTES ON TEXAS BEPOBTS. 35 Tex. 29-57 

AppTOTed in Perkins v. TraTnham, 3 Tex. Ap. Civ. 104, count/ 
court sitting to try civil cases has no jurisdiction over probate 
matters; Ballard v. Murphy (Tex. Ap.), 15 S. W. 43, where claim 
has not been properly presented for allowance, claimant is not en- 
titled to sue thereon. 

35 Tex. 29-39, UNNEY ▼. PELOQXTIN. 

Bight of Trial by Jury shall be preserved in all eases where only 
question involved is one of fact, and amount in controversy exceeds 
ten dollars. 

Approved in Gockrill v. Cox, 65 Tex. •673, contest over probate of 
will must be tried by jury, if demanded. 

Where There is No Direct proof or evidence of insanity of testa- 
tor, court should set aside verdict and grant new trial. 

Approved in Powler v. Chapman, 1 Tex. Ap. Civ. 542, judgment 
supported by evidence will not be reversed; dissenting opinion in 
Mutual Life Ins. Co. v. Hayward, 88 Tex. 327, 31 8. W. 511, majority 
denying application for writ of error involving the decision of a 
matter of fact. 

35 Tex. 41, CBOSBT ▼. LUM. 

Gitation Served on Bach of Several Defendants must contain names 
of an of them. 

Approved in Delaware etc. Construction Co. v. Farmers' etc. Nat. 
Bank, 33 Tex. Civ. 659, 77 S. W. 629, following rule. 

35 Tex. 42-62, JOHNSON ▼. DELONET. 

Resulting Trust may be Established by par6l, but such evidence 
should be received with great caution. 

Approved in American Freehold etc. Co. v. Pace, 23 Tex. Civ. 
248, 56 S. W. 391, holding evidence sufficient to show trust deed exe- 
cuted in mistake as to land embraced. See notes, 60 Am. Dee. 176; 
12 L. B. A. 667. 

35 Tex. 62-67, OBAVANS ▼. WILSON. 

Parties are not Inhibited from suing out executions upon their 
judgments by the stay law of 1866, whilst it remained unrepealed. 

Approved in Williams v. Murphy, 36 Tex. 174, granting execution 
where only nine months elapsed between date of judgment and 
passage of first stay law. 

The Stay laaw of 1866 kept judgments alive and in force in a 
manner to authorize the issuance of executions within time authorized 
by law. 

Approved in Boggess v. Howard, 40 Tex. 157, holding executlbn 
valid when issuance within one year after stay law was declare^l 
invalid; Black v. Epperson, 40 Tex. 185, holding that judgment was 
kept aHve by various stay measures from 1861^ till one year after 
February, 1868, when measures were declared invalid; Cravens v. 
Wilson, 48 Tex. 338, holding judgments rendered in 1865 or 1866 
did not lose their lien when execution was issued within one year 
from decision declaring stay law of 1866 invalid; Snow v. Nash, 
50 Tex. 223, holding judgment dormant and had lost its lien when 
no execution had issued on judgments prior to April 19, 1869. See 
notes, 58 Am. Dec, 353; 65 Am. Dec. 79; 65 Am. Dec. 95; 86 Am. 
Dec. 669. 



35 Tex. 68-80 NOTES ON TEXAS BEPOBTS. 280^ 

35 Tez. 58-60, 8M0TBIDGE ▼. LOVELL. 

Contract Executed by Husband and Wife for erection of house 
on separate property of wife is sufficient to bind separate estate o£ 
wife. 

Approved in Harris t. WilliamSy 44 Tez. 126, holding that in an 
action for debt contracted by wife, execution may be levied upon 
community property, or separate property of wife. 

35 Tez. 60-63, DAHJSY ▼. SONNEBBOBN. 

Bocka of Buyer are Admissible after evidence by seller in support 
of action to show articles purchased were dilferent in items or price- 
f rom those shown by seller's evidence* 

See note, 52 L. B. A. 696. 

35 Tez. 64-67, WOOD ▼. JOKES. 

Payment of Purchase Money is not sufficient to take parol eon- 
tract for purchase of lands out of operation of statute of frauds. 

Approved in Bradley v. Owsley, 74 Tex. 72, 11 S. W. 1052, hold- 
ing improvements built by purchaser as of no importance; Baker v. 
Wiswell, 17 Neb. 58, 22 N. W. 113, holding actual possession and con- 
struction of valuable improvements, or, perhaps, cultivation, take 
case out of statute. See notes, 12 Am. Dec. 120, and 27 Am. Dec. 
745. 

35 Tez. 68-69, SLAUOHTEB v. EIVENBABK. 

Where Certificate Does not Certify who swore to and subscribed 
answers in depositions, motion to strike out same will be sustained. 

Approved in Bush v. Barron, 78 Tex. 9, 14 S. W. 239, sustaining 
motion to suppress deposition when certificate does not show an- 
swers were signed before the officer. 

Officer Taking Deposition must identify cause in either caption 
or concluding certificate, mere reference to "annexed commission'* 
being insufficient. 

Beaffirmed in Southern etc. B. Co. v. Boyal (Tez. Civ.), 23 S. W. 
317. 

35 Tez. 69-74, OAUSE ▼. EDMINSTON. 

Party to the Suit mad« a Witness by opposite party is not en- 
titled to witness fees. 

Beaffirmed in Cole v. Angel (Tex. Civ.), 28 S. W. 93. 

35 Tez. 79-80, PAIK ▼. MHJiEB. 

Tenant may File upon Land under homestead act of 1870 when 
he learns his rights, though he has built a house upon same as land- 
lord's. 

Approved in Bodgers v. Daily, 46 Tex. 583, holding under home- 
stead law of 1870 one might appropriate vacant land and repudiate 
executory contract regarding sale of same; Turner v. Ferguson, 
58 Tex. 10, holding under homestead act mere temporary occupancy 
does not constitute an occupant in good faith; Home v. Gambrell, 
1 Tex. Ap. Civ. 559, holding no one can acquire an equitable title 
to public domain by his improvements; Brinkley v. Smith, 12 Tex. 
Civ. 645, 35 S. W. 50, holding party not actually living on public 
land cannot fix a right to it for a homestead; Perry v. Coleman,. 
1 Posey U. C. 318, holding legislature can extend time for pre- 



2HI NOTES ON TEXAS BEPOBTS. 36 Tex. 82-91 

emptor to comply with conditions imposed. See hote, 89 Am. St. 

Bep. 80. 

Distinguished in Williams v. Finley, 99 Tex. 473, 90 S. W. 1090, 
niere fact that land sold in good faith by one claiming title belonged 
^ fact to state does not of itself render contract void as against 
Public policy. 

^ Tex. 82-88, HOOPEB .▼. HALL. 
^ aa Action of Trespass to Try Title plaintiff was not entitled 
Recover, for defendant established a prior outstanding title. 
^ "Approved in Adams v. House, 61 Tex. 641, holding where defense 
^1^ ^ii^tstanding title was set up, appellants showed a valid title 
^(^^^*'ior to appellees; Philipowski v. Spencer, 63 Tex. 609, holding 
.x^^%sion by defendant gives a right against plaintiff until plaln- 
^^ ^hows sufficient title. 

Certified Copies of Ancient Records are admissible in evidence even 
where absence of originals is not accounted for. 

Approved in Storey v. Flanagen, 57 Tex. 655, holding court did 
not err in admitting in evidence certified copy of conveyance; Brox- 
Bon V. McDougal, 63 Tex. 198, holding certified copies of a record 
are not admissible in evidence where clerk is not custodian of orig- 
inal; Batcheller ▼. Besancon, 19 Tex. Civ. 142, 47 S. W. 298, applying 
rale where transfer of a certificate was made sixty-three years prior 
to date of trial. 

Court may Presnme After laapse of Many Years that power to eon- 
Tey existed, even though there is no proof that the power existed. 

Approved in Johnson v. Shaw, 41 Tex. 435, holding that where 
power exists it is presumable that power was executed; Johnson 
T. Timmons, 50 Tex. 534, holding fact of no adverse claim corrobo- 
rates execution and existence of power; Storey v. Flanagan, 57 Tex. 
654, authorizing jury to presume existence of power under which 
ancient deed is purported to have been executed; Harrison v. Mc- 
Murray, 71 Tex. 129, 8 S. W. 615, holding that a jury, if satisfied of 
its existence, may find fact of the existence of such power; Garner 
▼. Lasker, 71 Tex. 436, 9 S. W. 334, holding after thirty years court 
inay presume existence of power. 

85 Tex. 89, BLAIiOOK ▼. STATE. 

Judgment Rendered Against Sureties Only is erroneous, as it 
should have included the principal with the sureties. 

Approved in Co wen v. State, 3 Tex. Ap. 381, holding judgment 
erroneous when made final against sureties and not against prin- 
cipal. 

86 Tez. 89-91, WEST V. STATE. 

Indictment Obarging Defendants Witb Entering a storehouse, felon- 
ioDsIj and burglariously, to steal, take, and carry away goods, is too 
indefinite and uncertain to support conviction. 

Approved in Shepherd v. State, 42 Tex. 504, upholding indictment 
which charges entry and intent with all necessary precision relating 
to time; Simms v. State, 2 Tex. Ap. 114, holding indictment good 
which sets forth intent with certainty and particularity; Philbrick 
V. State, 2 Tex. Ap. 519, holding indictment defective which does 
not allege that value of goods stolen was over twenty dollars; Bob- 
ertson f. State, 6 Tex. A p. 683, holding indictment valid which al- 




35 Tex. 92-132 l^OTES ON TEXAS EEPOETS. 282 

leges felonious intent to steal with precision; Webster v. State, 9 
Tex. Ap. 76, holding indictment defective . which alleges intent to 
burglarize. See note, 94 Am. Dec. 254. 

86 Tex. 92-«6, PATTON ▼. STATE. 

A Ball Bond Which Does not Distinctly Kame the offense, but em- 
braces a description of two, is defective. 

Approved in Douglass v. State, 26 Tex. Ap. 251, 9 S. W. 735, hold- 
iug bond which sets forth forgery and the knowingly passing of the 
forgery is sufficient; State v. Vinson, 5 Tex. Civ. 317, 23 S. W. 808, 
holding penal bonds should be more strictly construed than volun- 
tary bonds. 

35 Tex. 97-112, TAYLOR ▼. STATE. 

Identification of Clothing, Hat» and Other Property found near 
dead body held sufficient circumstance to prove identity of deceased. 

Approved in Kugadt v. State, 38 Tex. Cr. 692, 44 S. W. 995, hold- 
ing circumstantial evidence sufficient if it identifies remains of de- 
ceased clearly; Gay v. State, 40 Tex. Cr. 262, 49 S. W. 618, holding 
circumstantial evidence sufficient if it sufficiently identifies remains 
of deceased; State v. Barnes, 47 Or. 598, 85 Pac. 1000, where in 
prosecution for homicide deceased's remains largely destroyed by 
fire, identity thereof need not be established by direct and positive 
evidence; People v. Palmer, 109 N. Y. 117, 4 Am. St. Bep. 428, 16 
N. E. 532, holding that when basis for presumptive evidence has 
been supplied identity of victim may be shown by circumstances. 
See note, 7 L. B. A. (n. s.) 182. 

Constitntlonal Inhibition from Putting a Person twice in jeopardy 
for same offense cannot be invoked where first indictment charges 
murder of "N. Evans" and second of **Morgan Evans." 

Overruled in Powell v. State, 17 Tex. Ap. 351, denying rule where 
court discharges jury without defendant's consent and before ver- 
dict. See notes, 21 Am. Dec. 505; 78 Am. Dec. 257; 36 Am. Bep. 
755. 

S5 Tex. 113-114, TXTCKEB ▼. STATE. 

Indictment Charging Defendant Having a Wife is defective be- 
cause it does not charge one of the parties is married to some person 
other than particeps criminis. 

Approved in Clay v. State, 3 Tex. Ap. 500, holding indictment 
defective which does not allege defendant not the wife of a paramour 
nor wife of any other person. 

36 Tex. 118-125, DAVIS ▼. STATE. 

Authority Given Judges to Bemove Sheriffs for cause is an extra- 
ordinary power, and should never be enjoyed except in cases of great 
necessity. 

Approved in Gorden v. State, 43 Tex. 339, holding power of judge 
to remove sheriff for cause is not absolute or arbitrary; Trigg v. 
State, 49 Tex. 672, holding court could dismiss district attorney after 
trial by jury on ground of habitual intemperance. 

35 Tex. 132, STATE ▼. SSOTH. 

Indictment Drawn Under Statute which is unrepealed and in full 
force will not be vacated on motion to quash. 

Approved in State v. Perry, 44 Tex. 101, reversing lower court, 
which sustained exception to indictment charging defendant with 



283 NOTES ON TEXAS BEPOETS. 35 Tex. 133-178 

selling one quart of whisky; Smith v. State, 7 Tez. Ap. 286, Te- 
versing judgment because no law in effect fixing penalty to offense 
charged against appellant. 

Paachal's Dig., art. 2076, prohibiting sale of HquoT to be sold on 
premises, is not repealed. 

Approved in May y. State, 35 Tex. 651, reaffirming rule. 

36 Tex. 13^-166, OAVAZOS ▼. TBEVINO. 

In an Action of Trespass to Try Title, it was no error to allow 
plaintiff to introduce a copy of testimonio and not of protocol of 
the title. 

Distinguished in Wood v. Welder, 42 Tex. 407, 408, holding error to 
admit a certified copy of a testimonio which appears to have been 
recorded, but shows no authentication for record. 

35 Teac 166-171, JOHNSON ▼. NEWMAlN. 

Court can Only Imply That Both Plaintiffs and defendants failed 
to make out their titles where jury has given general verdict for 
defendants. 

Approved in Kuechler v. Wilson, 82 Tex. 647, 18 S. W. 321, hold- 
ing tha4; a general verdict for defendants is a finding that both par- 
ties failed to make out their titles. 

35 Tex. 171-175, MANWABBINO ▼. KOT7N8. 

Motion for a New Trial will not be entertained where applicant 
is guilty of laches in pleading a discharge from bankruptcy. 

Approved in Miller v. Clements, 54 Tex. 354, held defendant can- 
not avail himself of his discharge unless he pleads it; Levyson v. 
Harbeiit, 3 Tex. Ap. Civ. 261, applying rule where defendants were 
discharged in bankruptcy before judgment was entered, and they 
had not pleaded their discharge. See note, 54 Am. St. Bep. 237. 

Adjudication of Bankruptcy by Federal Court does not oust juris- 
diction acquired by state court over person of bankrupt. 

Approved in Bank of Commerce v. Elliott, 109 Wis. 665, 85 N. 
W. 422, following rule. 

Judgment will be Enjoined where it was signed while defendant 
was in attendance as grand juror and was not called at trial of 
case. 

See note, 31 L. B. A. 210. 

35 Tez. 175-177, OBEEN v. DUNMAN. 

Affidavit Stating In General Terms that defendant had caused 
subpoena to be issued does not state such diligence sufficient for a 
continuance. 

See note, 74 Am. Dee. 145. 

Granting of Motion to Amend Application or make new applica- 
tion for continuance is discretionary with court, and not subject 
to revision on appeal. 

See note, 74 Am. Dec. 142. 

35 Tex. 177-178, 8TBOUD ▼. OBEBTHIEB. 

A Judgment Lien on Land is subject to every equity which existed 
against the land in hands of judgment debtor at time of its ren- 
dition. 

See notes, 82 Am. Dec. 612; 86 Am. Dec. 670. 

Resulting Trust is not Within Operation of registration laws. 

See note, 21 L. B. A. 36. 



35 Tex. 178-266 NOTES ON TEXAS EEPORTS. 284 

S5 Tex. 178-181, BOKEY ▼. WATESH0U8E. 

Partnership Firm may be a Competent Surety on an appeal bond. 

Distinguished in Buchard v. Gavins, 77 Tex. 366, 14 8. W. 388, 
granting motion to dismiss writ of error becanae partnership firm 
signed appeal bond as surety. 

36 Tez. 183-185, QABBISON ▼. KINO. 

Defendant cannot Prove Contents of a lost receipt; the contents 
may be proved by a disinterested witness. 

Approved in Blackman v. Bchierman, 21 Tex. Civ. 522, 51 S. W. 
889, applying rule where evidence was inhibited by Bevised Statutes. 

35 Tex. 185-226, 14 Am. Bep. 863, MOOBE v. LETCHFOBD. 

Judgment Creditor Lost None of His Bights by nonissuanee of 
execution when hindered by laws known as stay laws. 

Approved in Gardner v. Spivey, 35 Tex. 509, following rule; Black 
V. Epperson, 40 Tex. 186, holding judgments not dormant under stay 
act of 1861, and took a lien under act of November 9, 1866; Nicholas 
V. Hester, 42 Tex. 181, holding judgment rendered in 1860 not dor- 
mant, but a lien under act of 1866; Leak v. Gay, 107 N. C. 479, 
12 S. E. 314, holding statutory privileges and exemptions granted 
subject to recall when not resting in contract. See note, 10 Am. 
Dec. 137. 

35 Tex. 225-248, CUBLIN ▼. HENDBICES. 

Improvements Made by the Son on Land of father gives him nO 
equity which courts will enforce. 

Approved in Murphy v. Stell, 43 Tex. 132, applying rule where 
son received land by virtue of improvements made thereon. Sec 
notes, 15 Am. Dec. 302; 23 Am. Dec. 424. 

Distinguished in Willis v. Matthews, 46 Tex. 483, holding posses- 
sion and improvement of property sufficient consideration for gift 
of same from father to son; Willis v. Mdntyre, 70 Tex. 42, 8 Am. 
St. Bep. 581, 7 S. W. 598, holding possession and improvement of 
property sufficient consideration for gift of same from father to 
daughters. 

Title by Ten Years' Limitation cannot be established unless plead- 
ings contain proper allegations as a basis for it. 

Beaffirmed in Benavides v. Molino (Tex. Civ.), 60 S. W. 261. 

Distinguished in Molino v. Benavides, 94 Tex. 414, 60 S. W. 875, 
holding where petition is in statutory form of trespass to try titlo, 
plaintiff may establish limitations without speciall^L pleading facts. 

Valuable Consideration is Necessary f|r specific f^rformance of 
defective conveyance. \^ ' ^ 

Approved in Clark v. Hindman,^ 46 Or. ^Ji 79 Pac. 57, wljeje father 
agreed to erect house on designated land "and convey premises to his 
ilaughter in consideration of her agreement to pay half cost of build- 
ing, there was sufficient consideration to support specific performance 
of father's contract. 

35 Tex. 249-266, 14 Am. Bep, 370, MEBCHANT8' MUT. INS. CO. 
v. LACBOIX. ^ 

A Contract in a Policy of Insurance limiting time to bring action 
is not against public polioyi aor merged in general limitation laws 
of state. ^ c 



c 



285 NOTES ON TEXAS BEPOBTS. 35 Tex. 267-308 

Approved in Gulf etc. By. v. Trawick, 68 Tex. 320, 2 Am. St. Bep. 
499, 4 S. W. 571, holding contracts prescribing limitation for bring- 
ing action against railroad company would bar action against same; 
Suggs V. Travelers* Ins. Co., 71 Tex. 681, 9 S. W. 676, 1 L. B. A. 
847, holding limitation of time to bring suit on insurance policy 
runs during minority of beneficiaries. See notes, 2S5 Am. Bep. 106; 
50 Am. Bep. 3; 2 Am. St. Bep. 572. 

Word "Prosecnted*' in Insurance Policy includes bringing of suit 
and not merely prosecution of remedy after suit commenced. 

Approved in Davis v. Michigan etc. B. Co., 147 Mich. 481, 111 
N. W. 77, act of 1905, p. 120, declaring measure of damage in per- 
sonal injury actions hereafter "prosecuted" by personal representa- 
tive, applies only to actions begun after act took effect. 

35 Tex. 267-299, 8T0DDABT ▼. McMAHAN. 

SherilTs Betnm That He liad Levied upon Certain Property is valid, 
though he does not certify that he levied on property of defendant. 

Approved in Willis v. Mooring, 63 Tex. 343, failure to allege prop- 
erty is defendant's no ground for dissolving attachment; Sabin v. 
Mitchell, 27 Or. 74, 39 Pac. 637, attachment valid if sheriff's return 
infers that he has not followed the requirements of law. 

Where Wife Intervened to Protect her homestead attached in suit 
against her husband, held error to sustain demurrer to her petition 
of intervention. 

Approved in Whitman v. Willis, 51 Tex. 428, holding wife has 
right to intervene to protect her rights when levied upon for debts 
of husband upon ground of legal unity between them; McSpaddin 
V. La Force (Tex. Civ.), 39 S. W. 164, where intervener showed that 
he had purchased the property sequestrated and had made a payment 
thereon. See notes, 15 Am. Dec. 162; 23 L. B. A. (n. s.) 541. 

Miscellaneous. — Cited in Stoddart v. Garnhart, 35 Tex. 301, where 
facts as to partnership were said to be same as in principal case. 

35 Tex. 300-302, STODDABT ▼. OABNHABT. 

Where Affidavit for Oontinnance did not set out name of witness 
for whose testimony continuance was sought, held no error to deny 
application. 

Cited in 74 Am. Dec. 146, note. 

35 Tez. 302-308, BBAZEE V. WOODS. 

Statute of Frauds does not apply to parol contract where retiring 
partner deeded to remaining partners in consideration that they 
should indemnify him. 

Approved in Zabel v. Schroeder, 35 Tex. 312, holding acceptance 
of a deed and payment of one hundred dollars on purchase price 
takes contract out of statute of frauds. See note, 9 L. B. A. (n. s.) 
55. 

Where Contract Within Statute of Frauds fully performed on one 
side, payment of consideration may be enforced. 

Approved in City of Tyler v. St. Louis etc. By. Co., 99 Tex. 497, 
498, 91 S. W. 3, 4, contract which by its terms is capable of being 
and has been fully performed by one party within year is not within 
statute of frauds. 

Where Partner Sells Out to Copartner, who agrees to pay firm 
debts, and he paid note claiming it was firm debt but which was 



S5 Tex. 308-344 NOTES ON TEXAS EEPORTS. 28 & 

signed by different firm name, he must prove note given on firm 
account to recover for breach of contract. 

See note, 9 L. B. A. (n. s.) 68. 

Beceipt ftom Party Unknown to Record is insufficient to show that 
retiring partner whose copartner had assumed firm debts had been 
compelled to pay judgment against him on firm debt. 

See note, 9 L. B. A. (n. s.) 110. 

35 Tex. 308-313, ZABEL ▼. 80HE0EDEB. 

Parol Contract is Taken out of the statute of frauds where grantee 
made part payment and went into possession under deed made by 
grantor. 

Approved in Ayotte v. Nadeau, 32 Mont. 520, 81 Pac. 151, con- 
tract between tenants in common for erection of house on their 
premises by one at own expense and requiring him to make equal 
division of rents between them when rents received equaled half 
costs, is not within statute of fraud. 

In Action for Deferred Payments specified in deed, one due in 
twelve and other in eighteen months, it is no defense that contract 
not be executed within year from its date. 

See note, 68 L. B. A. 928. 

36 Tex. 313-320, BTJIJiABD ▼. THOMPSON. 

Law Implies Notes Payable tn Texas, though made in New York 
but dated in Texas, and also where notes were repugnant to laws of 
New York but not Texas. 

Approved in Connor v. Donnell, 55 Tex. 173, holding defense of 
usury complete to note payable in New York and discounted there 
at usurious rates of interest; Dugan v. Lewis, 79 Tex. 250, 251, 23 
Am. St. Bep. 335, 4 S. W. 1025, 12 L. B. A. 93, holding citizen of 
Texas may contract a liote payable in New York at rate of interest 
of either state; Bose v. McCracken, 20 Tex. Civ. 639, 50 S. W. 153, 
applying rule where there was no place of payment named in body 
of note, but note was dated at certajn place; Lanier v. Union 
Mortgage etc. Co., 64 Ark. 49, 40 S. W. 470, holding stipulation for 
highest rate of interest allowed in state where note is payable is 
binding upon the parties if entered into in good faith; Dawson v. 
Burrus, 73 Ala. 114, granting interest on note executed in Georgia 
but payable in Alabama; Bigelow v. Burnham, 83 Iowa, 122, 123, 32 
Am. St. Bep. 295, 296, 49 N. W. 104, held that date and place of 
execution of note presumed that it is payable there and especially 
so where note would have been void under laws of state where exe- 
cuted in fact See notes, 55 Am. Bep. 615; 62 L. B. A. 51. 

35 Tex. 323-344, SETTEQAST ▼. 80HBIMPF. 

Foreigners by Birth Who have Declared their intention of becoming 
citizens of United States are not aliens in true sense of term under 
laws of Texas. 

Approved in Andrews v. Spear, 48 Tex. 580, holding lands of 
alien upon his death do not escheat to state; Hanrick v. Hanrick, 
54 Tex. 113, holding statutes of 1840 and 1848 vested a defeasible 
title to real estate in alien children until state declared a forfeiture; 
Airhart v. Massieu, 98 U. S. 499, 25 L. 216, holding title of plain- 
tiffs to land in question is free from objection on the score of 
alienage; Hanrick ▼. Patrick, 119 U. S. 169, 7 Sup. Ct. Bep. 153, SO 



287 NOTES ON TEXAS REPORTS. 35 Tex. 345-356 

L. 404, holding that npon passage of act of parliament in 1870 the 
defeasible title in the alien heirs of Edward Hanrick was changed 
to indefeasible; Znndell t. Gess (Tex. Sup.), 9 S. W. 880, aliens 
maj enforce lien of lands in Texas; Williams v. Bennett, 1 Tex. 
Giy. 507, 20 8. W. 859, holding deed to an alien can only be defeated 
hy proceeding in nature of office found; Hammekin ▼. Clayton, 2 
Woods, 341, Fed. Cas. 5996, holding under Mexican law a deed to 
an alien was not void where native of New York became domiciled 
in Mexico and bought land there; Kirchcr v. Murray, 54 Fed. 621, 
holding mother and brother not debarred from inheritance simply 
because they are aliens. See notes, 14 Am. Dec. 98; 12 Am. St. 
Bep. 93; 31 L. R. A. 158. 

Common-law Bnle Disabling Allen from casting descent on alien 
was never in force in Texas. 

See note, 31 L. B. A. 104, 105, 179. 

85 Tex. 345>348, H0UJN08W0BTH ▼. BAQLEY. 

A Judgment Oiven in a Suit which, has abated on account of 
death of defendant is void, and a purchaser cannot gain title under 
a void judgment. 

Approved in Levy v. Ferguson Lumber Co., 51 Ark. 323, 11 S. W. 
286, holding judgment and amendments of justice of peace void 
where defendant, had no knowledge of same. See notes, 9 Am. Dec. 
780; 11 Am. Dec. 756. 

36 Tex. 849-354, SPABKS ▼. STATE. 

Indictment Charging "Without Hie Consent, intent to deprive 
him, the owner, of the value of the same," is a mere accumulation 
of words, and defective. 

Approved in State v. Williamson, 43 Tex. 502, holding word "pos- 
sion" sufficient in indictment when contract shows word *'pos- 
session" was intended; Scroggins v. State, 36 Tex. Cr. 118, 35 S. 
W. 968, holding omission of word "by" in indictment for burglary 
fatal; Menasco v. State (Tex. Ap.), 11 8. W. 898, instance where 
omission of word "did" in indictment for perjury was fatal. 

85 Tex. 354-365, STATE ▼. FLTNK. 

Indictment Charging Defendant with keeping a roadhouse, which 
was resorted to by persons who by loud talking annoyed passers, 
is sufficient to charge nuisance. 

Distinguished in Johnson v. State, 4 Tex. Ap. 65, overruling in- 
dictment that charged defendant with keeping a common nuisance. 

86 Tex. 355-366, WILLIAMS v. STATE. 

No Error for District Attorney to confer with witnesses for state 
under permission of court after witnesses of both sides have been 
placed under the rule. 

Approved in Jones v. State, 3 Tex. Ap. 153, holding no error 
where county attorney had conversed with witness under rule after 
closing case; Brown v. State, 3 Tex. Ap. 311, holding conversation 
with witnesses under rule should be in presence of some court officer; 
Dayis v. State, 6 Tex. Ap. 199, held no abuse of discretion of court 
where counsel for state consulted with witnesses under rule; Cres- 
well V. State, 14 Tex. Ap. 16, holding no error in refusing to require 
witnesses to confer with defendant under rule. 



85 Tex. 357-412 NOTES ON TEXAS BEPOBTS. 288 

36 Tex. 357-369, STATE ▼. LACKEY. 

District Attorney Pro Tern may do anything a district attorney may 
do. 

Approved in Daniels v. State (Tex. Or.), 77 S. W. 215, upholding 
appointment of county attorney pro tem. 

35 Tex. 359-361, LANDERS ▼. STATE. 

Where Indictment Charges Murder, held error not to grant a 
continuance on account of absence of witnesses where eyidenee 
depended upon is wholly circumstantial. 

Approved in Pogue v. State, 12 Tex. Ap. 292, holding circum- 
stantial evidence should come up to standard of moral certainty. 

35 Tex. 361-363, OWENS v. STATE. 

Reversing Judgment Where the Verdict of Jury is without evidence, 
and where prosecuting witness is unsupported in any material point. 

Approved in Vance v. Saathoff, 2 Posey U. C. 661, supreme court 
will only set aside a verdict where it appears clearly to be wrong; 
State V. Hamey (Mo.), 65 S. W. 954, reversing conviction in rape 
case; State v. Howser, 12 N. D. 496, 98 N. W. 353, upholding grant 
of new trial in prosecution for conspiracy on ground of insufficiency 
of evidence; Mares v. Territory, 10 N. M. 780, 65 Pac. 168, ordering 
new trial in prosecution for rape on ground of insufficiency of evi- 
dence. 

36 Tex. 366-367, STATE ▼. TEBBT. 

The Penalty for Selling l^lrituous Liquors attaches only on non- 
payment of the occupation tax, and not upon failure to obtain a 
license. 

Approved in Keiser v. State, 78 Ind. 435, holding license itself, 
when properly procured, confers right to sell liquors. 

35 Tex. 378-386, METZOEB ▼. WENDLEB. 

No New Trial Granted Where Object is to impeach witnesses who 
testified on former trial, when the time to present that complaint 
had passed. 

Approved in Houston City St. By. v. Sciacca, 80 Tex. 356, 16 S. 
W. 33, granting motion for new trial on ground of new evidence is 
discretionary with judge. 

Sustaining Demurrer to an Original Suit, filed after term elapsed, 
for the purpose of obtaining a new trial, remedy was by bill of 
exceptions 'and appeal or writ of error. 

Approved in Schleuning v. Duffy, 37 Tex. 528, refusing bill of re- 
view where motion for new trial was denied and not prosecuted on 
appeal; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100, holding 
final judgment not subject to control of court after adjournment; 
Bryorly v. Clark, 48 Tex. 353, holding proper method to have judg- 
ment vacated is by motion and not by petition. 

86 Tex. 390-412, DWIGHT v. OVERTON. 

A Deed of Assignment Executed and delivered by a debtor to 
his creditors, conveying for their own use his property, is a valid 
assignment, and not a mere mortgage, and as such not subject to 
administration on death of debtor. 

Approved in King v. Cassidy, 36 Tex. 537, applying rule where 
property was assigned to assignee for payment of debt; Qurley v. 



289 NOTES ON TEXAS BEPORTS. 35 Tex. 413-427 

Ward, 37 Tex. 22, holding assignment of promissorj note as collat- 
eral seenrity is a pledge, and pledgee should present claim; McLane 
▼. Paschal, 47 Tex. 370, holding deed of trust by husband eovering 
homestead not a bar to wife's application for homestead; Thaxton 
▼. Smith, 90 Tex. 596, 40 S. W. 16, holding administration of estate 
of assignor would not reach title vested in assignee. See note, 70 
L. B. A. 142. 

Where Statute of Limitations had Been Bepealed by constitution, 
the heirs of an assignee could not plead statute. 

Approved in Campbell v. Holt, 115 U. S. 630, 6 Sup. Ct. Rep. 214, 
29 L. 486, holding new constitution of Texas repealed all existing 
statutes of limitation. See notes, 75 Am. Dec. 818; 90 Am. Dec. 508. 

35 Tex. 413-418, 8CBANT0N v. BELL. 

Motion of Appellants to Dismiss Their Own Appeal Made Sixteen 
Years After taking their appeal, on ground that their appeal bond 
was insuificient should be denied. 

Approved in Davis v. Estes, 4 Tex. Civ. 208, 23 S. W. 411, holding 
defects in appeal bond cannot be urged if not objected to in proper 
time. See note, 51 Am. Dec. 724. 

Distinguished in Bradway v. Clipper, 1 Tex. Ap. Civ. 125, holding 
motion to dismiss appeal should be granted where appeal bond 
misdescribes judgment; Martin v. Hartwell, 1 Tex. Ap. Civ. 243, 
granting motion to dismiss appeal where bond misdescribed judg- 
ment. 

35 Tex. 419-420, McMILLIAN ▼. WEBNBB. 

Statute Limiting Time to One Year within which second action 
of trespass to try title may be brought is limitation statute and within 
Const. 1870, art. 12, sec. 43. 

See note, 7 L. B. A. 715. 

35 Tex. 421-424, WILLIAMS ▼. DU&ST'S ADMINISTBATBIX. 

Deed of Tmst is Contract independent of note it secures, and may 
not be barred though note is. 

See note, 95 Am. St. Bep. 667. 

35 Tex. 424--425, DUKE v. STATE. 

Judgment Nisi and Judgment Final charging one offense while 
bond names another and different offense is fatal variance. 

Approved in Smalley v. State, 3 Tex. Ap. 203, 204, holding bail 
bond insuflScient which names an offense and indictment alleges 
another; Addison t. State, 14 Tex. Ap. 569, holding bail bond insuflS- 
cient which names offense as swindling while indictment charges 
theft. 

35 Tex. 425, TINSLEY ▼. TBTMBLE. 

An Order of Oonttnnance is not such final judgment as is subject 
to revision by supreme court. 

See note, 60 Am. Dec. 436. 

35 Tex. 426--427, BOBINSON ▼. CBX7MP. 

Where Appellant had No Proper Standing in Ootut, and not entitled 
to homestead rights, judgment will not be reversed for error in the 
charge of the court. 

2 Tex. Notes— 19 



35 Tex. 432-471 NOTES ON TEXAS REPOBTS. 290 

Approved in Hassler t. Kay, 1 Tex. Ap. Civ. 364, applying rule- 
where record of evidence shows appellant not entitled to judgment. 

Neither Woman nor Her Bastard Child can claim homestead rights 
through father. 

See note, 56 L. B. A. 55. 

35 Tex. 432-433, VANCE ▼. HOaXTE. 

An Order Setting Aside a Judgment of Dismissal and retrans- 
ferring cause, and dropping it from the calendar, is not a final judg- 
ment as would authorize an appeal. 

Approved in Mercer v. Glass, 89 Ky. 202, 12 S. W. 195, holding 
order transferring cause is not appealable. See note, 60 Am. Dec. 
432. 

36 Tez. 43&-438, OIIJiMOBE v. DUNSON. 

Affidavit to Claim Against Estate of Decedent must contain 
statutory prerequisites. 

Approved in Hughes v. Potts, 39 Tex. Civ. 183, 87 S. W. 709, 
affidavit to claim presented to assignee for creditors reciting that 
statement is correct instead of that it is "just and true" is insufficient.. 

See note, 130 Am. St. Bep. 320. 

36 Tex. 439-446, LTON ▼. STEVENS. 

Whera Defendant Answered by sundry frivolous special defenses,, 
court struck out same on motion of plaintiff. 

See note, 74 Am. Dec. 147. 

36 Tez. 447-461, BBOWN ▼. ADAMS. 

A Distress Warrant will be Granted to a landlord to collect his 
rent, which is payable in kind, where the tenant refuses to deliver 
the crops as they are gathered. 

Approved in Schultz v. Spruain, 2 Posey XJ. G. 211, applying rule 
where defendant repudiated landlord's title and paid rent to another; 
Garuthers v. Williams, 58 Mo. Ap. 103, applying rule where tenant 
refused to harvest crop. See note, 89 Am. Dec. 593. 

35 Tez. 461-461, McMAHAN ▼. HABBEBT. 

Demurrer was Properly Sustained to an action brought against 
the administrator de bonis non to enforce the payment of a debt 
created by a former administrator. 

Distinguished in Beinstein v. Smith, 65 Tex. 251, overruling de- 
murrer to petition to recover for money and supplies advanced to 
administrator. 

Heirs can be Bouid if They Accept the benefits of a debt created 
by an administrator. ^ 

Approved in Alliance Milling Go. v. Eaton, 86 Tex. 408, 25 S. W. 
616, 24 L. B. A. 369, holding assignment as a mortgage, and as such, 
consent of mortgagee is necessary to bind lien. See notes, 78 Am. 
Dec. 561; 24 L. B. A. 380. 

36 Tez. 461-471, PBICE ▼. COLE. 

Where Wife Loaned Husband Money and took mortgage upon 
certain lands, and recorded mortgage before the lands were sold 
under execution to satisfy judgment against husband, and gave 
actual notice of her claim to purchaser^ held purchaser is not an.- 
innocent purchaser without notice. 



£91 NOTES ON TEXAS BBPORTS. 35 Tex. 472-484 

Approved in Dority v. Dority, M Tex. 222, 71 S. W. 953, 60 L. E. A. 
941, holding wife may sue husband separated but not divorced to 
prevent interference with her separate property where he mismanages 
it and diverts income; Hall v. Hall, 52 Tex. 299, 36 Am. Bep. 726, 
holding note and mortgage given by husband to wife are valid 
instniments; Senter v. Lambeth, 59 Tex. 265, holding purchaser at 
sheriff's sale having notice of vendor's lien is not a purchaser without 
notice. See notes, 82 Am. Dec. 612; 86 Am. Dec. 670; 21 L. B. A. 35. 

Overruled in Grace v. Wade, 45 Tex. 528, holding purchaser at 
sheriff's sale is entitled to all rights of creditor. 

Overruling of previous case explained in Byan v. Byan, 61 Tex. 
474, 476, holding wife entitled to writ of attachment against com- 
munity property; Stevenson v. Texas By. Co., 105 XT. 8. 708, 26 L. 
1216, holding purchaser at sheriff's sale of railroad subject to mort- 
gage is entitled to rights of creditor. 

Article 4986 of Pascbal's Digest, respecting mortgage liens, was 
repealed and superseded by articles 4986 and 4988. 

Beaffirmed in Turner v. Cochran, 94 Tex. 487, 61 S. W. 925. 

36 Tez. 472, MURRAY T* STATE. 

Appeal la Dismissed for Want of Jurisdiction where jury returned 
verdict, but no judgment was rendered on the verdict. 

Approved in Mayfield v. State, 40 Tex. 290, holding in criminal 
ease defendant cannot appeal from order denying trial until judg- 
ment for conviction is rendered. See note, 28 L. B. A. 628. 

36 Tez. 473-481, 14 Am. Rep. 374, ENGLISH ▼. STATE. 

Snfltaining Judgment on Conviction for wearing a pistol. 

Approved in State v. Duke, 42 Tex. 459, holding carrying of pistol 
except in public service or openly violation of public law. See notes, 
13 Am. Dec. 255; 25 Am. Bep. 561; 78 Am. St. Bep. 263. 

A Butcher *E[nife is not One of the Arms of the infantry soldier 
in the connection we find it in the constitution of the United States. 

See note, 115 Am. St. Bep. 203. 

Qualified in State v. Duke, 42 Tex. 458, holding word "arms" is 
to be construed more comprehensibly than ''military arms." 
i Statute Prohibiting Carrying of Deadly Weapons does not infringe 

right to bear arms. 

See notes, 115 Am. St. Bep. 201; 3 L. B. A. (n. s.) 169; 14 L. B. A. 
I 600. 

Amendments to Oonstitution are restrictions on power of general 
government. 

See note, 115 Am. St. Bep. 200. 

35 Tex. 481-484, OUTLAW ▼• STATE. 

Sustaining Conviction for an Assault with intent to commit rape, 
where defendant committed assault and battery with intent to commit 
rape, as indicated by his words and acts. 

Approved in Williams v. State, 1 Tex. Ap. 93, 28 Am. Bep. 402, 
holding words "against her will" may be stricken out of indictment 
for rape; Stevens v. People, 158 111. 118, 41 N. E. 858, holding object 
and intent of aggressor to commit rape must be shown. 

Dnmkenness is No Excuse for crime. 

See note, 8 L. B. A. 33. 



35 Tex. 485-508 NOTES ON TEXAS BEPORTS. 292 

S5 Tex. 485-487, STATE ▼. HEDBIOK. 

Where Indictment Against Sheriff charging him with willfully per- 
mitting a prisoner to escape, it would be error to quash indictment. 

Approved in State v. Walker, 40 Tex. 486, denying motion to quash 
indictment which contains every necessary averment. 

35 Tez. 487-495, BOWLAND ▼. STATE. 

No Error for Oonrt to Examine Witnesses under oath respecting 
legal grounds for change of venue. 

Approved in Buie v. State, 1 Tex. Ap. 454, sustaining action of court 
in swearing and examining deponents regarding their means of knowl- 
edge; Houillion v. State, 3 Tex. Ap. 544, applying rule where counter- 
affidavits were filed against motion for change of venue. 

Where Inspection of Becord discloses that testimony of absent wit- 
ness would not change result, continuance properly refused* 

See note, 122 Am. St. Bep. 752. 

36 Tex. 497-499, STATE ▼. FBANKLIN. 

No Objection can be Heard to Indictment where the bond contains 
a sufficiently accurate description of the defense. 

Approved in Hunt v. State, 6 Tex. Ap. 664, sustaining information 
which charges assault with rocks and sticks as deadly weapons. 

Sureties cannot Oo Behind Their Bond to question the sufficiency of 
the indictment where the defendant was not in court. 

Approved in State v. Cocke, 37 Tex. 156, applying rule that sureties 
cannot be heard when in default; Wells v. State, 21 Tex. Ap. 596, 2 S. 
W. 807, holding where no indictment, sureties can appeal from judg- 
ment forfeiting appeal bond. 

35 Tex. 500-502, SMITH ▼. STATE. 

Indictment Charging Aggravated Assault with a certain pistol is 
sufficient to justify verdict of simple assault. 

Approved in State v. Shult, 41 Tex. 549, holding unnecessary to 
allege defendant played cards with anyone when he only is charged; 
Tufts V. Blanton, 2 Tex. Ap. 227, holding indictment which charges 
aggravated assault good for simple assault. 

35 Tex. 50S--507, STATE v. JENNINGS. 

Indictment Charging Intent to Murder as "with intent him to kill 
and murder" was sufficient under the statute. 

Approved in Martin v. State, 40 Tex. 26, holding indictment valid 
which omitted word "aforethought" after word **malice" in indict- 
ment; Nash V. State, 2 Tex. Ap. 364, holding indictment charging as- 
sault with intent to murder valid where name of weapon used is 
omitted. 

36 Tex. 507-508, STATE v. BODEBICA. 

An Indictment Which Charges That Two Persons played at a game 
with cards, without alleging that they played together, is insufficient. 

Approved in State v. Honan, 41 Tex. 156, applying rule to indict- 
ment not charging defendants as playing together or with separate 
oflPenses; Sharp v. State, 28 Fla. 363, 9 So. 651, applying rule where 
indictment fails to mention name of person with whom bet was 
made. 

Distinguished in Johnson v. State, 36 Tex. 199, holding indictment 
good which does not charge with whom defendant played; Turner v. 



293 NOTES ON TEXAS EEPOBTS. 35 Tex. 508-555 

State^ 41 Tex. 549, holding indictment good which charges single party 
with playing cards. 

35 Tez. 508^509, QABDNEB ▼. SPIYET. 

In a Suit Against an Administrator and his vendee to annul a sale 
of land, held error to refuse a jury demanded by defendant. 

Approved in Cockrill v. Cox, 65 Tex. 673, holding right of trial by 
jury in contest of will recognized under all laws. 

The Act of November 9, 1866, had a retroactive effect, and imparted 
to anterior and unrecorded judgments a lien upon real estate. 

Approved in Black v. Epperson, 40 Tex. 186, holding judgments in 
force in 1861 preserved in force by stay measures until 1868. 

35 Tez. 509-534, OIiAT ▼. OIiAT. 

Where Colonist Sold Lands, though prohibited by laws of Mexico, 
and the purchaser improved them, held heirs of grantor cannot recover. 

Approved in Jones v. Huff, 36 Tex. 681, holding bond for a deed exe- 
cuted in conflict of Mexican laws valid when heirs of grantor granted 
partition nine years after; Clay v. Clay, 2 Posey U. C. 357, holding 
grant is conclusive where question of title is before court. 

35 Tez. 534-^6, POBTIEB ▼. FERNANDEZ. 

Where Appellant Dismissed Suit as to Improper Party for damages 
eaused by writ of sequestration, held error to sustain motion to dismiss 
as to all. 

Approved in Harris v. Finberg, 46 Tex. 88, holding damages caused 
by depreciation in value of goods cannot be had where writ of seques- 
tration is sued out; Tompkins v. Toladd, 46 Tex. 590, holding sureties 
in a sequestration bond might be joined in action on bond with prin- 
cipal; Davis V. Bawlins, 1 Tex. Ap. Civ. 15, applying rule where at- 
tachment has been wrongfully sued out and damage occasioned 
thereby; Norwood v. Inter-State Nai. Bank, 92 Tex. 270, 48 S. W. 4, 
applying rule where action to recover damages was brought instead of 
seeking relief upon replevy bond. 

Distinguished in Harris v. Finberg, 46 Tex. 96, holding loss of time 
in attending trial not actual damage. 

35 Tez. 536-538, PABK ▼. OASEY. 

Where Any Unfair Manner amounting to trick or contrivance to 
get rid of effect of bankruptcy discharge is employed, remedy is by 
injunction. 

Cited in notes in 53 Am. Dec. 299, and 54 Am. St. Bep. 237. 

36 Tez. 544-^6, SEIUNG ▼. GXJNDEBMAN. 

Defendants Who are Bankrupts can plead in reconvention for dam- 
ages for personal property sequestered by plaintiff. 

Approved in Harris v. Finberg, 46 Tex. 88, holding defendants can 
recover damages by reconvention where writs of sequestration are 
auxiliary to writs of attachment. 

Provision of Lease Mortgaging to Lessor all property in leased 
premises did not attach to property exempt from execution. 

See note, 24 L. B. A. 812. 

Distinguished in Brown v. Neilson, 61 Neb. 767, 87 Am. St. Bep. 
525, 86 N. W. 499, 54 L. B. A. 328, arguendo. 



85 Tex. 565-625 NOTES ON TEXAS BEPORTS. 294 

35 Tez. 565-^77, BUOELEY v. HOWABD. 

Wltere Father is Able to Provide for Ectucatloii of child, lie is not 
entitled to allowance therefor out of child's estate. 

See notes, 10 Am. Dec. 661; 57 L. B. A. 729; 7 L. B. A. 176. 

35 Tez. 587-594, GBEENWOOD Y. STATE. 

Where Defendant was Indicted and Convicted, and judge charged 
the jury with the law applicable to facts, held no error unless judge 
refused to give certain charges asked. 

Overruled in Elliston v. State, 10 Tex. Ap. 366, holding in all 
felony cases judge must charge all the law applicable. 

There was No Error for State to Prove on subsequent trial by 
another person what a deceased witness testified to on former trial. 

Approved in Johnson v. State, 1 Tex. Ap. 343, 344, applying rule 
where counsel agreed to introduction of decedent's testimony; Black 
V. State, 1 Tex. Ap. 383, holding no error where substance of testi- 
mony of deceased witness is admitted; Miller v. State, 37 Tex. Gr. 
577, 40 S. W. 314, holding error to allow wife to testify against hus- 
band concerning transactions occurring prior to marriage. See note 
on subject in 61 Am. St. Bep. 879, 880, 882, 883; Jones v. State, 
38 Tex. Cr. 100, 70 Am. St, Bep. 724, 40 S. W. 809, holding error to 
examine wife concerning matters not pertinent to facts elicited on 
direct examination. 

Distinguished in dissenting opinion In Cline v. State, 36 Tex. Cr. 
361, 362, 364, 367, 61 Am. St. Bep. 879, 880, 882, 883, 37 S. W. 726, 
727, 728, 729, majority holding testimony of dead witness cannot 
be used as evidence upon new trial. 

Wife can be Croas-eKamined in regard to any facts against her 
husband which have been drawn out in her examination in chief. 

Approved in Stewart v. State, 52 Tex. Or. 281, 106 S. W. 688, 
applying rule where wife of defendant in murder trial testified; Wash- 
ington V. State, 17 Tex. Ap. 204, holding error to cross-examine wife 
about meat when she had not testified about it; Johnson v. State, 28 
Tex. Ap. 26, 11 S. W. 668, holding error where wife was cross-ex- 
amined about a gun when she had not testified about it before. 

36 Tex. 694^98, HUSTON v. MUSaBOVE. 

Where the Owner of Two Jadgmente rendered by justice of peace 
retained vendor's lien, and justice of peace had no jurisdiction over 
liens, held remedy would be resort to district court to enforce lien, 
and doctrine of res judicata would not apply. 

Approved in Philopowski v. Spencer, 63 Tex. 698, applying rule 
where pleadings do not aver merits of former litigation; McKinney 
V. Cur ties, 60 Mich. 621, 27 N. W. 696, applying rule where com- 
plainant's claim has not been adjudicated on its merits. 

85 Tex. 605-620, LOVEJOT ▼. B0BEBT8. 

Where Purchaser of Title Bond for land in deferred payments, 
when sued for balance of purchase price, pleaded statute of frauds 
and obtained judgment, held he has not disaffirmed his contract 
so as to forfeit his right for deed to land.^ 

Cited in note in 60 Am. Dec. 245. 

85 Tex. 622-625, GK>0D80N v. JOHNSON. 

Where Affidavit on the First and second application for a con- 
tinuance meets requirements of statute, court is relieved of all dis- 
cretion and must grant continuance. 



295 NOTES ON TEXAS EEPOETS. 35 Tex. 631-667 

ApproTed in Barth ▼. Jester, 3 Tex. Ap. Civ. 268, holding in ap- 
plication for continuance not necessary to show witnesses were in 
attendance. 

All Defenses Available against payee of a note are available against 
his assignee claiming under indorsement made after maturity. 

Approved in Terhune v. First Nat. Bank, 24 Tex. Civ. 244, 60 
S. W. 353, allowing bank to recover where it had taken note before 
maturity as collateral security, and afterward obtained absolute 
title to paid interest because all parts of same transaction. See 
notes, 46 L. B. A. 758; 12 L. B. A. 41. 

It ia Oood Defense Against Transferee that consideration had 
failed and that note never delivered to payee, but that he had ob- 
tained possession by fraudulent representations, and that it was 
transferred to plaintiff after maturity without consideration. 

See note, 46 L. B. A. 761, 768. 

Where Note Delivered in Escrow to be delivered to payee only on 
happening of certain event, which never happened and depositary 
died, latter's declarations as to conditions of deposit are admissible 
in action on note by indorsee. 

See note, 43 L. B. A. 481. 

Miscellaneous. — ^Leavitt v. Peabody, 62 N. H. 193, cited to point 
that setoff expressly authorized by statute is valid defense. 

35 Tex. 631-641, McOBEABT v. VAN HOOK 

Where Ooods Purchased by Individual Member of firm were trans- 
ferred to firm, the statute of frauds does not apply, as it is not a 
promise to pay debt of another. 

Approved in Patton v. Mills, 21 Kan. 169, applying rule where 
promise to pay debts of another was made to collect promisor's debt. 
See notes, 56 Am. Dec. 150; 9 L. B. A. (n. s.) 54. 

Wliere Goods Bought and Note Given therefor and partnership formed 
between purchaser and another, and goods are transferred to firm, 
there is sufficient consideration for firm's promise to pay note* 

See note, 9 L. B. A. (n. s.) 53. 

35 Tez. 641-650, McOBEEBT v. FOBT80N. 

Probate Oourt had No Authority to set aside a homestead where 
property did not belong to decedent, but was subject to a vendor's 
lien, and district court has jurisdiction to foreclose the lien. 

Approved in Cannon v. McDaniel, 46 Tex. 314, sustaining action 
brought in district court where county court not empowered to act; 
Storm V. Ermantrout, 89 Ind. 219, holding mortgagor not entitled 
to rents under exemption law where court appointed receiver under 
foreclosure. See notes, 73 Am. Dec. 217; 76 Am. Dec. 80; 45 Am. 
8t. Bep. 385. 

35 Tex. 660-652, MAT v. STATE. 

Article 2076 of Paschal's Digest is in force, and not repealed. 
Distinguished in Smith v. State, 7 Tex. Ap. 286, holding a stotate 
inoperative for want of penalty, though not repealed. 

36 Tez. 667-667, EX PABTE KINQ. 

Wha:« th» Oonunon Law has been adopted, judge has no authority 
to remove clerk for incompetency of his own motion; remedy is to 
make an order to show cause. 



35 Tex. 668-708 NOTES ON TEXAS BEPOBTS. 296 

Approved in Gordon v. State, 43 Tex. 339, applying rule where 
sheriff was removed without notice; Trigg v. State, 49 Tex. 673, 
applying rule where county attorney was removed; Smith v. Brennan, 
49 Tex. 682, sustaining dismissal of petition to remove county judge 
filed by private citizen. 

Distinguished in Stephenson v. Texas etc. By., 42 Tex. 165, holding 
strictness and regularity of common law not absolutely essential. 

55 Tex. 668-686, HABDT ▼. BBOADDIJ& 

A Judgment Ohanged by a Deputy Olerk from four thousand three 
hundred and ninety-eight dollars and twenty-five cents to four thou- 
sand five hundred dollars was void from and after alteration, and its 
execution should be enjoined by third party whose property levied on. 

Approved in Davis v. State, 5 Tex. Ap. 50, applying rule where 
name of surety to bond was scratched. See note, 30 L. B. A. 563, 
791. 

The Enforcement of a Judgment voidable on the ground of fraud 
should be enjoined. 

Approved in Bergin v. Haight, 99 Cal. 56, 33 Pac. 761, holding 
probate sale voidable where only constructive notice of sale was 
given. See notes, 62 Am. Dec. 506; 70 Am. Dee. 385; 54 Am. St. 
Bep. 237. , 

56 Tez. 687-689, 2CAYE8 ▼. WOODALL. 

No Error to Deny Petition to Bevlse or Enjoin Judgment in a suit 
to which petitioner was not a party, on ground of alleged error. 
Approved in Glaser v. First Nat. Bk., 62 Ark. 175, 34 S. W. 1061, 

35 L. B. A. 765, holding no creditor can defend an action or pro- 
ceeding against his debtor. See notes, 19 Am. Dec. 607; 67 Am. Dec. 
654; 54 Am. St. Bep. 251; 123 Am. St. Bep. 306; 30 L. B. A. 701. 

36 Tex. 689-691, BBOWN T. CHRISTIE. 

Where Balance of Purchase Price is to be raised from sale of other 
property, the vendor has no lien upon property sold. 

Approved in Flanagan v. Cushman, 48 Tex. 244, applying rule 
where balance of purchase money is not paid. 

36 Tex. 691-692, BBOWN Y. STATE. 

Allegation of Ownership of Property must be proved as laid; rule 
applied to indictment for theft of horses. 

Approved in Calloway v. State, 7 Tex. Ap. 587, reversing judg- 
ment where variance between allegation and proof; McDowell v. 
State, 68 Miss. 348, 8 So. 508, applying rule to theft of cotton. 

86 Tex. 696-708, GBIFFIN T. STADI^EB. 

Declarations of Decedent made before and subsequent to alleged 
gift are not admissible in evidence to defeat the alleged gift which 
had been fully executed by delivery of possession. 

Approved in McKnight v. Beed, 30 Tex. Civ, 205, 71 8. W. 318, 
declarations of grantor subsequent to delivery that deed made to 
his grandchildren but put in possession of another for delivery to 
them after his death, were advances to be counted against interest 
of grantee's father as heir of grantor, are inadmissible; Johnson v. 
Brown, 51 Tex. 80, holding declarations of testator not admissible 
to invalidate will for forgery. 



E97 NOTES ON TEXAS BEPOBTS. 35 Tex. 711-756 

85 Tez. 711-712, ADAMS v. BOLLEB. 

Jodgment Agreed apon Between Plaintiff's Attorney and attomej 
for defeodant will be set aside where consent of client is not shown. 

See note, 76 Am. Dec. 261. 

85 Tez. 712-722, GRAHAM Y. BOYNTON. 

Where Creditor of a Firm bas Attached private property of in- 
dividual member^ purchaser at sheriff's sale under attachment takes 
no title to property. 

Distinguished in Bogers v. Burbridge, 5 Tex. Civ. 69, 24 S. W. 301, 
holding under statute that attachment does not abate. 

35 TeiZ. 722-723, GK>ODaAME v. BXJSHINa. 

Wliere Mortgagee was Empowered to Sell Mortgaged Property at 
public auction, held not error for him to purchase the same himself. 

Approved in Allen v. Gillette, 127 U. 8. 596, 8 Sup. Ct. Bep. 1335, 
32 L. 274, applying rule where executor purchased at foreclosure 
sale inheritance mortgaged to third party; Bandolph v. Allen, 73 Fed. 
37, applying rule where trustee empowered to sell trust property sold 
same to his employer. See note, 9 L. B. A. 793. 

35 Tex. 730-735, BOGEBS v. GBEEN. 

Vendor cannot After Ten Tears enforce his lien when he has 
already recovered a judgment in personam. 

Approved in Lawler v. Yeatman, 37 Tex. 674, refusing to allow 
lien twelve years after judgment in personam; Ball v. Hill, 48 Tex. 
640, to point that holder of claim secured by lien may enforce lien. 
See note, 62 Am. Dec. 512. 

Miscellaneous. — Crosby v. Lum, 35 Tex. 41, apparently not in point. 

36 Tex. 738-739, SMITH ▼. STATE. 

Where Indictment Charged Theft of a Mnle, it is sustained by proof 
that defendant exchanged it for a horse and falsely represented 
the mule to have escaped. 

Approved in Maddox v. State, 41 Tex. 206, sustaining indictment 
which does not charge property was obtained under false pretense; 
Quitlow V. State, 1 Tex. Ap. 70, applying rule where defendant bor- 
rowed horse under false pretenses; Jones v. State, 8 Tex. Ap. 650, 
sustaining indictment charging theft of horse obtained under false 
pretense; Davison v. State, 12 Tex. Ap. 216, ordinary indictment for 
theft will be sustained by proof of swindling; Dow v. State, 12 Tex. 
Ap. 345, ordinary indictment for theft is sustained by proof that 
the property was obtained by a false pretext. See note, 88 Am. St. 
Bep. 580. 

35 Tex. 741-751, DONLEY ▼. OTJNDIFr. 

Where Notes were Indorsed and delivered to attorney for indorser's 
creditors, held that absolute title passed, precluding indorser's ad- 
ministrator from recovering same. 

Approved in King v. Cassidy, 36 Tex. 537, applying rule where de- 
cedent assigned his property for a specific use; McLane v. Paschal, 
47 Tex. 370, holding deed of trust a mere mortgage with power to 
sell 

86 Tez. 751-766, CAMPBELL ▼. FIELDS. 

Seversiiitf Judgment for Materials furnished for homestead where 
there was no written contract between the parties. 



35 Tex. 756-779 NOTES ON TEXAS BEPOBTS. 298 

Approved in Gaylord ▼. Loughridge, 50 Tex. 576, denying lien upon 
homestead for moneys borrowed without eonsent of wife; Blevins v. 
Cameron, 2 Posey U. G. 463, denying lien npon homestead for Inmber 
furnished at request of husband only. 

Constitation Became the Organic Law of the state, for all the pur- 
poses of the state, on its ratification by the people. 

Approved in Peak v. Swindle, 68 Tex. 250, 4 S. W. 481, holding 
constitution of Texas became supreme law of state at its adoption 
by popular vote; Pemberton ▼. McBae, 95 N. C. 504, holding home- 
stead rights under constitution not defeated by levy of sheriff after 
adoption of constitution by popular vote; Secombe v. Kittelson, 29 
Minn. 559, 12 N. W. 521, applying rule where constitutional amend- 
ment was adopted by people. 

35 Tex. 756-761, TB0IJ8DAI«E v. TBOU8DAI«E. 

Judgment of District Court (sitting in probate) confirming an 
illegal sale cannot be corrected by supreme court by order, in form 
of certiorari, directing clerk of district court to file correct papers 
and then send them up as part of the record. 

Cited in note in 67 Am. Dec. 698. 

35 Tez. 763-774, 8HEFABD v. FHEABS. 

I>iBml88ing Suit Instituted Five Tears after making note as to 
guarantor, when it appears no effort was made to collect the money. 

Approved in Hanrick v. Alexander, 51 Tex. 501, holding minority 
of two of plaintiffs does not exempt them from due diligence in 
bringing suit; Bosman v. Akeley, 39 Mich. 713, 33 Am. Bep. 449, 
sustaining demurrer of guarantor to complaint alleging insolvency 
of guarantee; Texas City Imp. Co. v.. Griswold (Tex. Civ.), 41 S. W. 
513, under guaranty of "collection" of a note, guarantor cannot be 
sued until remedy against maker has been exhausted. See notes, 
60 Am. Dec. 185; 64 Am. St. Bep. 393; 64 Am. St. Bep. 399. 



35 Tex. 774-777, 8HEPABD Y. TATIiOB. 

Dismissing Suit upon a Promissory Note payable in Confederate 
money. 

Approved in Mathews v. Bucker, 41 Tex. 637,. applying rule to suit 
on promissory note payable in Confederate money. See note, 31 
L. B. A. 759. 

36 Tex. 777-77d» EWINO ▼. PEB&T. 

Where Landlord Allowed Com to be moved off rented premises, 
held landlord had no lien on crops raised on his land after the same 
had been removed. 

Approved in Pace v. Sparks, 1 Posey U. C. 405, applying rule where 
landlord allowed cotton to be removed from plantation to be sold, 
and it was subsequently levied upon. 

An Order of the Judge made after adjournment of court and 
after he had left the district, directing vacating of judgment of dis- 
missal and reinstating cause in calendar, is without authority of 
law. 

Approved in Moore v. State, 46 Tex. Cr. 522, 81 S. W. 49, where 
entry of presentment of indictment made after adjournment of court, 
cause must be dismissed and case returned to district court to correct 
minutes at succeeding term; Ex parte Ellis, 37 Tex. Cr. 542, 66 Am. 
St. Bep. 834, 40 S. W. 276, granting writ of habeas corpus for im* 



299 NOTES ON TEXAS REPOBTS. 35 Tex. 779-817 

prisonment of judgment of contempt of court made during vacation; 
Parker v. State, 35 Tex. Cr. 14, 29 S. W. 480, holding verdict ren- 
dered before term of court expired valid. 

35 Tex. 779-781, DAVIS ▼. CAMPBELL. 

An AflLdavlt to Plea In Abatement stating facts "are true to the 
best of his knowledge and belief," is not sufficient to support a plea 
in abatement. 

Approved in Gates v. Mass, 4 Tex. Ap. Civ. 228, 14 S. W. 1067, 
applying rule where affidavit verifying plea was not positive. 

Distinguished in Schmitt v. Jacques (Tex. Civ.), 62 S. W. 957, 
where facts in the supplemental plea alleged as obtained through 
information and belief by affiant had an actual existence. 

35 Tex. 781-784, SHAOKLEFOBD v. GATES. 

In an Action Brought by Hein of Decedent against his executors, 
held error to allow creditors of decedent to intervene. 

Approved in Merchants' etc. Bk. v. Fitzgerald, 61 Ark. 612, 33 
S. W. 1066, denying application of writ of certiorari by creditors to 
quAsh order of probate court. 

One Denied Bight to Intervene cannot appeal from final judgment. 

See note, 119 Am. St. Bep. 752. 

35 Tex. 784-787, WALKEB v. PHILLIPS. 

Where the Payment of a Note ie Dependent upon the payment of 
another note, any payment or settlement of this note to the sat- 
isfaction of the holder of the same is sufficient to render the first 
note due and payable. 

Cited in note, in 5 Bias. 101. 

35 Tex. 797-801, MAB8T0N v. WABD. 

Where Husband and Wife Bring Snit to recover property of wife, 
and also establish community rights of husband against the property, 
it is not error to sustain demurrer. 

See note, 67 Ani. Dec. 711. 

35 Tex. 801-817, McABTHUB v. HEimT. 

In an Action for Trespass to Try Title Brought by Minors, the 
disputed boundary line will be settled by parol agreement or acqui- 
escence in a boundary line between ancestors. 

Approved in Cooper v. Austin, 58 Tex. 503, applying rule where 
parties agreed concerning boundary fence and then one repudiated 
it; Pickett V. Nelson, 71 Wis. 546, 37 N. W. 838, applying rule where 
parol agreement was made concerning boundary and maintained for 
seventeen years; Teass v. St. Albans, 38 W. Va. 16, 17 S. E. 406, 
19 L. B. A. 802, applying rule where fence was built on street as lo- 
cated by city authorities. See note, 67 Am. Dec. 620. 



NOTES 

ON THE 



TEXAS REPOETS 



CASES IN 36 TEXAS. 



86 Tbx. 1-6, H0LLI8 ▼. CHAPMAN. 

Where Carpenter Agreed to Furnish Materials and do woodwork 
on two brick buildings for specified sum, which were destroyed by 
fire before completion, held carpenter conld recover for materials 
furnished and work done up to time of fire. 

Approved in Weis v. Devlin, 67 Tex. 511, 513, 60 Am. Rep. 41, 43, 
3 8. W. 728, 729, Dolan v. Bodgers, 149 N. Y. 494, 44 N. E. 168, and 
Cook V. McCabe, 53 Wis. 257, 40 Am. Rep. 767, 10 N. W. 509, all re- 
affirming rule; Teakle v. Moore, 131 Mich. 436, 91 N. W. 639, one 
contracting to do woodwork for certain amount with progressive pay- 
ments, may on falling in of roof through negligence of owner's agents 
recover for work done, though injured by fall; Duncan v. Baker, 21 
Kan. 107, where party contracting to work seven months quits after 
fifty-nine days without cause, he cannot recover for time worked; 
Butterfield v. Byron, 153 Mass. 523, 25 Am. St. Rep. 658, 27 N. E. 669, 
12 L. R. A. 571, parties excused from damages by happening of event 
preventing completion over which neither had control. Cited in fol- 
lowing notes: 31 Am. Rep. 103; 62 Am. Dec. 478; 59 Am. St. Rep. 
284, 285, 289. 

Distinguished in Fairbanks v. Richardson Drug Co., 42 Mo. App. 
270, where contract was for sale of engine, which was destroyed by 
fire before pat in running order; and Haynes v. Second Baptist 
Church, 88 Mo. 291, 57 Am. Rep. 414, where contractor undertook 
to build house, which was destroyed by fire before completion, held 
not to relieve contractor from his obligation. 

36 Tex. 6-14, LONG ▼. STATE. 

Whatever Matter Affecting the Degree or kind of punishment must 
be specially alleged in the indictment. 

Approved in Hobbs v. State, 44 Tex. 354, reafiirming rule; Kinney 
▼. State, 45 Tex. Cr. 501, 78 S. W. 225, under Penal Code, art. 
1014, indictment alleging prior conviction of "same ofiiense" is sufii- 
eient. 

Distinguished in Kinney v. State, 45 Tex. Cr. 502, 79 S. W. 570 
(on rehearing), indictment under Penal Code, art. 1014, alleging in 

(301) 



36 Tex. 14-eO NOTES ON TEXAS BEPOBTS. 802 

language of statute that defendant previously convicted of same 
offense, is insufficient. 

All tbe States Tliat bave Adopted the Penitentiary System make 
provision for the reformation of the offender, by increasing punish- 
ment for second offense. 

Cited in notes, 64 Am. St. Bep. 378; 34 'L. B. A. 401. 

36 Tex. 14-16^ EX PABTE HOOO. 

Jnstice of the Peace can only be removed from office on convic- 
tion by jury after indictment for malfeasance, nonfeasance, and mis- 
feasance in office. 

Approved in Wilson v. State, 38 Tex. 554, Trigg v. State, 49 Tex. 
671, and Ballentyne v. Wickersham, 75 Ala. 538, reaffirming rule; 
dissenting opinion in Flatan v. State, 56 Tex. 109, majority holding 
duty of commissioners' court to declare office of sheriff vacant, when 
sheriff elected fails to give bond. Cited in following note: 61 Am. 
Dec. 344. 

36 Tez. 16-19, WIUiIAMS v. ATKINSON. 

Where Defendant was Sned and his property attached by creditor, 
he afterward obtained a discharge in bankruptcy; held, that plain- 
tiff could not foreclose on such attachment lien in the state courts. 

Approved in Be Albrecht, 1 Fed. Cas. 316, reaffirming rule; John- 
eon V. Poag, 39 Tex. 94, sale of property by sheriff after judgment 
debtor has been adjudged a bankrupt confers no title on purchaser; 
Fisse V. Einstein, 5 Mo. Ap. 81, when principal procures discharge 
in bankruptcy, so that judgment can be rendered against him, on 
appeal, it releases sureties on appeal bond. 

36 Tez. 19-23, M0BBX8 ▼. HALBEBT. 

Under Our Laws Heirs may Take Property of deceased and pay the 
debts, without bringing it within the jurisdiction of the probate court. 

Approved in Myers v. Jones, 4 Tex. Civ. 332, 23 S. W. 563, reaf- 
firming rule. 

Voidable Judgments cannot be impeached collaterally. 
Beaffirmed in Whiteselle v. Texas Loan Agency (Tex. Civ.), 27 S. 
W. 315. 

36 Tes. 26-41, BANGEB ▼. SABOENT. 

A Party Dealing With One Holding letter of credit limited in 
amount takes risk that bearer has previously drawn for full amount 
thereof. 

Approved in Boman v. Soma, 40 Tex. 322, reaffirming rule; Sargent 
V. Banger, 1 Tex. Ap. Civ. 390, letter of credit for a specified amount, 
held to limit maker's liability to such amount. 

36 Tex. 59-60, McMAHAN ▼. HAU.. 

Sheriff not I^iable to Statutory Penalty for applying proceeds of 
goods sold on execution to satisfaction of wrong execution where he 
acted honestly. 

Approved in Bichards v. Bemis (Tex. Civ.), 78 S. W. 241, where 
claimant of execution fuiMd exhibited agreement with plaintiff where- 
by he was to have percentage of proceeds, sheriff not liable to statu- 
tory penalty for failure to pay same. 



803 NOTES ON TEXAS BEPOBTS. 36 Tex. G2-83 

Z6 Tez. 62-e7, QRANT v. McKENNET. 

Where One Member of Partnersliip Died, the other took out ad- 
ministration on deceased's estate, but was afterward removed, held 
sach surviving partner and his sureties were liable to administrator 
d« bonis non for conversion of partnership funds. 

Approved in Johnson v. Morris, 45 Tex. 465, reaffirming rule. See 
note, 40 L. B. A. 64, 65. 

96 Tex. 68-70, BONDS v. F08TZSB. 

Where Man ^piving With Slave as Wife in Louisiana removed to 
Ohio, where he also lived with her as his wife, and afterward re- 
moved to Texas with such woman and children, there being no im- 
pediment to their marriage in Ohio, such marriage was presumed. 

Approved in Honey v. Clark, 37 Tex. 707, reaffirming rule. See 
notes, 3 L. B. A. (n. s.) 247; 14 L. B. A. 364, 365. 

Disapproved in Edelstein v. Brown, 35 Tex. Civ. 630, 80 S. W. 102», 
where original relations illicit, change in relationship must be shown 
before common-law marriage presumed. 

It Seeme That Since the Adoption of the fourteenth amendment 
to the constitution of the United States, a marriage between a white 
man and negress may be presumed, when they live together as such. 

Cited in note, 57 Am. Bep. 463. 

36 Tez. 71-72, MOBBI8 ▼. GK>BDON. 

In County Courts Organized Under Laws of 1866, a motion for new 
trial was held to be a prerequisite to an appeal to the district court. 

Approved in Harris v. Credille, 1 Tex. Ap. Civ. 284, appeal will 
not lie from justice's court where no notice of appeal was given; 
Putnam v. Putnam, 3 Ariz. 188, 24 Pac. 322, appellate court does not 
review error which might have been ground for new trial unless 
motion for new trial made below. 

36 Tex. 73-76, HABBISON ▼. SHEIBBX7BK. 

Parol Evidence is competent to show the real nature of the obliga- 
tion intended to be assumed at the time of signing of payee's name 
in transferring promissory note. 

Approved in Kealing v. Yansickle, 74 Ind. 537^ 39 Am. Bep. 108, 
reaffirming rule. 

36 Tez. 76-83, SCOTT v. ATCHISON. 

Payment of Note to Tnistee or Administrator in Confederate 
money held not to discharge same. 

See note, 31 L. B. A. 759. 

Distinguished in Atcheson v. Scott, 51 Tex. 221, holding on second 
appeal of same case the facts to be such as to not bring case within 
the rule laid down on former appeal. 

Note Payable Four Months after ratification of treaty of peace is 
not void for uncertainty. 

Approved in Knight v. McBeynolds, 37 Tex. 209, following rule. 

Administrator cannot Give Valid Consent to accept Confederate 
money contract as revocation of liability due estate. 

Approved in Qriffin v. Walker, 36 Tex. 88, 89, where A empowered 
B to collect note due A from C and B received payment in Con- 
federate money, in action by A against C, evidence that A was in- 
debted to B and told latter to pay himself out of proceeds when 
collected is inadmissible. 



36 Tex. 83-113 NOTES ON TEXAS BEPOETS. 304 

36 Tex. 83-85, EX PASTE HOXJSE. 

Act of Legislature Qranting Charter to fire company which exempts 
the individual members of the company from jury duty is not un- 
constitutional. 

Approved in Ex parte Krupp, 41 Tex. Cr. 358, 54 S. W. 592, hold- 
ing under Bevised Statutes of 1895, articles 3142, 3143, and 3144, 
member of volunteer fire company exempt from jury service. See 
notes, 73 Am. Dec. 218; 8 L. B. A. (n. s.) 501. 

36 Tex. 90-94, 8TBATT0K ▼. JOHNSON. 

Stay Laws of 1861 and 1863 closed courts during war, and suit 
brought on note at second term after courts opened, which became 
due in 1862, held to have released the indorser thereon. 

Approved in Black v. Epperson, 40 Tex. 185, debtor had right to 
sell homestead and acquire another with proceeds, without subject- 
ing it to his general debts; Hunt v. Wiley, 1 Tex. Ap. Civ. 698, 
where maker of note is notoriously insolvent, held to excuse failure 
to bring suit at first term after maturity to hold indorser. 

Insolvency of Maker is Sufficient Excuse for not suing at first 
term of court when suit could have been brought. 

Approved in Barringer ▼. Wilson (Tex, Civ.), 81 S. W. 534, arguendo. 

See note, 18 L. B. A. (n. e.) 557. 

36 Tez. 96-98, FEESTON v. BBEEDLOVE. 

Oral Evidence Tending to Prove verbal contract collateral to and 
contemporaneous with the written contract is admissible. 

Approved in Nowlin v. Prichott, 11 Tex. Civ. 445, 32 S. W. 833, 
reaffirming rule. 

Where Note was Transferred after maturity with notice of dis- 
honor, it is subject to all existing equities. 
See note, 46 L. B. A. 757. 

36 Tex. 98-104, BALLEW V. STATE. 

When Prosecution is Wholly upon CTlrcumstantlal Evidence, the 
nature of the case in many instances demands greater latitude in 
presentation of evidence than when direct and positive proof is 
relied 'upon. 

Approved in Noftsinger v. State, 7 Tex. Ap. 322, and Simms v. 
State, 10 Tex. Ap. 166, both reaffirming rule. 

Appellate Court will not Beverse Judgment of conviction for error, 
unless it appears that suoh error influenced the judgment. 

Approved in People v. Marble, 38 Mich. 126, an error in charge, be- 
ing practically harmless, no new trial should be granted on account 
of it. 

36 Tex. 108-111, ANDBIJS V. PETTUS. 

The Attorney Who had been Employed to Bepresent an Estate 
had the choice of looking to the estate for his fee or to the admin- 
istrator directly and personally. 

Cited in note, 78 Am. Dee. 561. 

86 Tez. 111-113, VABDEMAN v. BOSS. 

Administrator De Bonis Non with will annexed derives his power 
from the law, and not from the will, and has no power as testa- 
mentary guardian. 



305 NOTES ON TEXAS EEPORTS. 36 Tex. 114-127 

Approved in Compton v. McMalian, 19 Mo. Ap. 504, 508, reaffirm- 
ing rule; Hodgin v. Toler, 70 Iowa, 25, 59 Am. Rep. 437, 30 N. W. 
3, power to sell land given by will to executor will not devolve upon 
administrator, with will annexed; Jasper v. Jasper, 17 Or. 597, 22 
Pac. 155, where executor finishes his duties as executor, he holds 
property as trustee. Cited in notes in 24 Am. Dec. 389; 94 Am. 
Dec. 317; 80 Am. St. Rep. 103; 1 L. R. A. 80. 

36 Tex. 114-115, BUBT ▼. BOX. 

Where Mother of Minor Child was allowed by probate court two 
thousand dollars in lieu of homestead, held that minor could not 
maintain action against administrator for failure to pay such al- 
lowance. 

Approved in Showers v. Robinson, 43 Mich. 514, 5 N. W. 998, minor 
children not necessary parties in suit brought by their mother to 
recover homestead. 

36 Tex. 116-117, WATT v. DOWNS. 

Where Holder of Lien Against Property of an estate buys such 
property at sale, and applies purchase price on his lien, held the 
executor- was not entitled to commission on such sale. 

Overruled in Huddleston v. Kempner, 87 Tex. 374, 28 S. W. 937, 
holding administrator is allowed commission on amount of fore- 
closure sale, where money was applied on debt. 

36 Tex. 118-119, MANNING y. HUNT. 

Where Party Fails to Pursue His Bemedy by appeal or certio- 
rari from judgment against him in justice's court, he cannot enjoin 
execution thereof. 

Approved in Garner v. Smith, 40 Tex. 515, party failing to appeal 
from judgment in justice's court cannot enjoin enforcement of same; 
Galveston etc. Ry. v. Ware, 74 Tex. 49, 11 S. W. 919, where judg- 
ment in justice's court was voidable, defendant failing to properly 
appeal cannot enjoin enforcement of such judgment. 

36 T9K. 119-120, FLT ▼. BAILT. 

Where AppollAnt had Obtained Judgment in district court, and 
appealed therefrom, but during pendency of appeal ran execution in 
district court, which was paid in full, the supreme court dismissed 
his appeal. 

Approved in Paine v. Woolley, 80 Ky. 570, reaffirming rule; Dun- 
ham V. Randall, 11 Tex. Civ. 267, 32 S. W. 721, where creditor sues 
to set aside trust deed, but accepts his proportionate share there- 
under, waives his right to appeal. Cited in following notes, 13 Am. 
Dec. 548, and 45 Am. St. Rep. 271. 

Distinguished in Headers v. Gray, 60 Miss. 407, where appellant 
accepted amount due on the decree. 

Limited in Bechtel v. Evans, 10 Idaho, 150, 77 Pac. 213, allowing 
appeal from order for costs though final judgment has been satisfied. 

36 Tex. 120-127, WELLS v. POLK. 

Irregnlarity in Sale of Land in Probate Oourt, not making sale 
void, cannot be collaterally attacked. 

Approved in Robertson v. Johnson, 57 Tex. 64, Perry v. Blakey, 5 
Tex. Civ. 336, 23 S. W. 807, and Hubermann v. Evans, 46 Neb. 791, 

2 Tex. Notes— 20 



36 Tex. 127-147 NOTES. ON TEXAS BEPOETS. 306 

799, 65 N. W. 1047, 1050, reaffirming rule; Davis v. Touclistoiie, 45 
Tex. 497, provision requiring order to sell land to de6<:ribe same is 
directory; Knowlton v. Dolan, 151 Ind. 86, 51 N. E. 100, order of 
court directing commissioner to convey real estate, not subject to 
collateral attack. 

36 Tez. 127-129, GBEOO ▼. FITZHUOH. 

It is Error for District Oourt to exclude receipt from evidence 
because the required amount of revenue stamps had not been af* 
fixed thereon. 

Approved in Shipman ▼. Fulcrod, 42 Tex. 249, reafirming rule. 

36 Tez. 129-131, BEYNOIJ)S T. McFADDEN. 

Where Testator Provided in Will that estate should be adminis- 
tered out of court, and executor had turned estate over to devisee, 
held proper for creditor to bring suit directly against devisee. 

Approved in Moore v. Kirkman, 19 Wash. 608, 54 Pac. 26, notice 
to creditors not necessary where deceased executor is authorized to 
administer estate outside court. 

36 Tez. 133-138, BBADSHAW ▼. APPEBSON. 

In Suit Against A, B, and 0, as partners on note signed by B as 
agent of A, defendants denying partnership, held error to charge 
that if B and C are secret partners of A, and B signed notes for 
fraudulent purpose, all defendants are liable for full amount, re- 
gardless of authority of B to act for A, or whether any payments 
made on notes. 

Approved in Cleveland v. Anderson, 2 Tex. Ap. Civ. 139, parties 
to contract having a communion of interest in profits, are partners 
SB to third persons. See note, 18 L. B. A. (n. e.) 1082. 
. Party Beceiving a Certain Percentage of profits of firm as com- 
pensation for services is not -a partner, and is not liable for 
partnership debts. 

Cited in notes, 56 Am. Dec. 150; 18 L. B. A. (n. s.) 1019, 1033. 

36 Tez. 139-142, OGBEB T. HABT. 

Vendee Paying Large Portion of Purchase Money and going into 
possession had a right to retain possession and withhold balance 
of purchase money until vendor tendered good and valid title. 

Cited in following notes: 56 Am. Dec. 58; 70 Am. Dec. 341. 

36 Tez. 144-146^ GATES ▼. JOHNSON OOUNTT. 

Court Jodicially Knows That in 1869 government of Texas was 
administered by military authority, under reconstruction acts of 
Congress. 

Approved in Daniel r. Hutcheson, 86 Tex. 63, 22 S. W. 938, mili- 
tary government in Texas was proclaimed to be at an end on April 
16, 1870. Cited in notes, 89 Asl Dec. 670; 4 L. B. A. 44. 

36 Tez. 147, MUBPHY v. WENTWOBTH. 

Alternative Writ of Mandamus sued out in vacation should be 
made returnable at next term of district court. 

Approved in Fisher v. Mayor, 17 W. Va. 636, reaffirming rule; 
Shepard v. City Council (Tex. Civ.), 42 S. W. 863, order of district 
judge in vacation denying peremptory writ of mandamus, is not an 
appealable judgment. 



307 NOTES ON TEXAS BEPOBTS. 36 Tex. 148-177 

36 Tex. 148-149, THOMAS t. CHIIJ>S. 

Service of Citation in error is absolutelj necessary in order to 
give jurisdiction to appellate conrt. 

Approved in Western Union Tel. Co. v. O'Keefe, 87 Tex. 426, 28 
S. W. 945, notice of appeal is necessary to the exercise of juris- 
diction of appellate court. 

S6 Toe. 151, IiEEB ▼. BUTHERLAHn). 

Wtesn Instrnment Sued on did not Oall for coin, and court ren- 
dered judgment nihil dicit for coin, held erroneous. ' 

Approved in Orrill ▼. Talbott^ 44 Tex. 195, reaf&rming rule. 

86 Tez, 152-158, DILLON T. BOOEBS. 

In Damage Suit Verdict was, <<We, the jury, And for the plaintiff 
one hundred dollars impunitive damages"; held to be iinintelligible, 
and was reversed. 

Approved in Lindsay v. State, 1 Tex. Ap. 333, verdict was, "We, 
the jury, find the defendant guilty of the crime, and fix his punish- 
ment at five yeare in the penitentiary," held sufficient; Taylor v. 
State, 5 Tex. Ap. 672, holding verdict, <<We, the jury, find the de- 
fendant guilty, ft etc.," held not vitiated by bad spelling. 

86 Tez. 154-155, BOBEBTSON v. LACKEY. 

Oases Appealed tnm Justice's to District Ooorts shall be tried 
de novo, and such trials shall be final without appeal to the supreme 
court. 

Approved in Bice v. Basbury, 41 Tex. 422, reaffirming rule. 

86 Tez. 156-156, STATE T. FBANEUN. 

Indictment for Aggravated Assault need not allege the assault was 
made under circumstances not amounting to an intention to kill or 
maim. 

Approved in State v. Cocke, 87 Tex. 156, failure of grand jury to 
indict accused does not excuse him and his sureties for nonappear- 
ance at term of court. 

Pistol Used as Bludgeon may be deadly weapon. 

See note, 21 L. B. A. (n. s.) 501. 

86 Tez. 157-167, SOOTT T. MANN. 

Agent to Sell cannot Purchase at own sale. 

Approved in Clendenning v. Hawk, 10 N. D. 95, 86 N. W. 117, 
agent with authority to lease property cannot lease to himself. See 
note, 80 Am. St. Bep. 558, 563. 

Agent Selling Property at Public Auction in manner usual at judi- 
cial sales may purchase as agent for third person. 

See note, 20 L. B. A. 508. 

When Vendee Indorsed Porchase Money Note, lien is lost. 

See note, 13 L. B. A. 187. 

86 Tez. 167-177, WILLIAMS T. MUBPHY. 

Judgment With Foreclosure on Land was entered in 1861; no exe- 
cution was issued until 1869, and judgment was not registered as pro- 
vided by law to, preserve liens; held, that such judgment was not dor- 
mant under act of February 14, 1860. 

Approved in Boggess v. Howard, 40 Tex. 157, was not necessary for 
plaintiff in judgment to have execution issued whUe stay laws were 



36 Tex. 181-201 NOTES ON TEXAS REPORTS. 308 

in force'; Black ▼. Epperson, 40 Tex. 186, holding judgment was kept 
alive by the war and stay laws, from 1861 to 1899; Sampson v. Wy- 
ett, 49 Tex. 632, judgment becomes dormant within twelve months 
from rendition, where no execution is issued. 

36 Tez. 181-187, HAYS ▼. STONE. 

Where Defendant at Trial withdraws his general and special pleas 
to the merits, and then files plea in abatement on ground of being 
sued in wrong county, plaintiff is entitled to judgment non obstante 
veredicto. 

Cited in Brownwood v. Noel (Tex. Civ.), 42 S. W. 1015, as being 
correct practice in Texas, where facts warrant it. 

Distinguished in Templeman v. Gibbs (Tex. Civ.), 25 S. W. 737, 
where evidence supports verdict for plaintiff, judgment non obstante 
veredicto on ground that undisputed facts show transaction within 
statute of fraud should be overruled. 

36 Tez. 190-192, LLOYD v. BABNETT. 

Where Certificate Filed With Motion to affirm on certificate de* 
scribed judgment at variance with judgment described in transcript 
and with appeal bond filed by appellant, the cause was stricken from 
the docket. 

Approved in House ▼. Williams, 40 Tex. 348, 353, 360, reaffirming 
rule. 

86 Tez. 193-197, BA08DALE v. GREEN. 

On Adjournment of Term at which judgment was rendered, district 
court loses jurisdiction and any order made at a subsequent term 
without some action in the nature of original proceeding is void. 

Approved in Chisholm v. Day, 1 Tex. Civ. 264, reaffirming rule; 
Eddleman v. McGlathery, 74 Tex. 281, 11 S. W. 1101, judgment, after 
expiration of term of rendition, can only be reopened by a direct pro- 
ceeding for that purpose. 

Cited in note, 67 Am. Dec. 653. 

86 Tez. 198-200, JOHNSON T. STATE. 

Indictment for Playing Oards in house kept for retailing spirituous 
liquors, under article 409 of the Penal Code, need not allege with 
whom defendant played. 

Approved in State v. Shult, 41 Tex. 549, reaffirming rule; State r. 
Shult, 41 Tex. 548, indictment charging defendant with playing ''a 
game of cards," instead of "a game with cards," held sufficient. 

86 Tez. 200-201, GALBBEATH v. STATE. 

Indictment Jointly Charging Defendants playing cards in house 
used for retailing spirituous liquors must charge defendants with 
playing together. 

Approved in State y. Shult, 41 Tex. 549, and State v. Homan, 41 
Tex. 156, reaffirming rule. 

Indictment for Playing Oards in house used for retailing spirituous 
liquors is not supported by proof that playing took place in room 
rented by another party and disconnected with liquor room. 

Approved in Harcrow v. State, 2 Tex. Ap. 512, playing cards in 
house fortv feet from saloon not sufficient to constitute crime of 
playing cards in saloon. 



309 NOTES ON TEXAS EEPOBTS. 36 Tex. 203-281 

36 Tez. 203-254, WALKEB t. MYEBS. 

Wliere Becord Shows That Probate Ooart had no jurisdiction over 
subject matter, such cannot be counteracted by presumptions in favor 
of jurisdiction. 

Cited in following notes: 58 Am. Dec. 149, and 86 Am. Dec. 653. 

36 Tex. 260-269, UET v. HOUSTON. 

It is Error to Permit Deed to be proved by certified copy, without 
accounting for original. 

Miscellaneous. — Blythe v. Houston, 46 Tex. 71, and Houston r* 
Blythe, 60 Tex. 509, both referring to former appeals of same case. 

36 Tez. 270-272, JOHNSON v. HAMILTON. 

Party Haying Claim to Title to Land who tells another party that 
he had no title to the land, and did not expect to be able to get the 
title, is estopped from asserting any claim thereto against the one 
purchasing on faith of such representations. 

Approved in Shattuck y. McCartney, 1 Tex. Ap. Civ. 2S0, party 
making representations is estopped from denying the truth thereof. 

Measnre of Damages for Breach of Warranty of Title is value of 
land less unpaid purchase price and damages for loss of title and pos- 
session. 

Approved in Boberts v. McFaddin, 32 Tex. Civ. 55, 74 8. W. 110, 
measure of damages for breach of warranty in contract for sale of 
land is purchase price with interest. See note, 106 Am. St. Bep. 971, 
975. 

36 TflS. 272-275, CHANDLEB T. SAPPINOTON. 

Appeal Bond must State Names of all appeHees. 

Approved in Putnam y. Putnam, 3 Ariz. 186, 24 Pac. 321, following 
rule. 

36 Tex. 275->276, MOBBILL v. FITZOEBALD. 

In Allowing SherifF to Correct Betom, the court exercises a power 
which belongs to it, and not to a jury. 

Cited in following note: 13 Am. Dec. 178. 

86 Tez. 277-278^ McMAHAN T. OHAMBEBS. 

Where Appeal Bond from Oonnty Oonrt misdescribes term when 
suit was brought, fails to show county where brought, and where 
judgment was rendered, district court properly dismisses the appeal. 

Distinguished in Nelson v. Hart (Tex. Civ.), 23 S. W. 832, where 
bond taken in connection with the petition and writ of certiorari 
sufficiently described the suit and judgment. 

36 Tez. 27»-270, WATSON Y. MATHEWS. 

When Ezception is Taken to rejection of written document offered 
in evidence, it must set out the document, and disclose the reasons 
for the exclusion. 

Approved in Kelley v. Highfield, 15 Or. 293, 14 Pac. 757, biU of 
exception to ruling of court sustaining objection to interrogatory to 
witness should show evidence expected to be elicited thereby. 

36 Tez. 280-281, OLIOK v. STEWABT. 

Injunction Lies Against Ezecution Sale where landlord has lien by 
distress warrant issued after execution, but which has priority. 

See note^ 30 L. B. A. 129. 



36 Tex. 282-307 NOTES ON TEXAS REPORTS. 310 

86 Tez. 282-285, BROWN ▼. STATE. 

In Actions of Escheat No Olaim for improvements can be allowed. 

Approved in Ellis v. State, 3 Tex. Civ. 172, 21 S. W. 67, reaffirming 
rule. See note, 12 L. R. A. 530. 

Where Citation on Declaration for Escheat was by publication, and 
party appeared and answered, and after answering fled motion to 
quash citation, held that motion came too late. 

Approved in Hamilton v. Brown, 161 U. S. 273, 16 Sup. Gt. Rep. 
591, 40 L. 698, constitution of 1869, article 4, section 20, did not 
affect pending proceedings for escheat. 

36 Tez. 285-286, HERRON T. STATE. 

Indictment Charging Defendants with playing at a game with 
cards, but failing to charge that they played together, is fatally de- 
fective- 
Approved in State ▼. Homan, 41 Tex. 156, State t. Shult, 41 Tez. 
' 549, reaffirming rule. 

36 Tez. 286-289, RAOSDALE T. GOHLKE. 

Where One, by His Words or Conduct^ willfully causes another to 
believe the existence of certain state of facts, and induces him to 
act on that belief, thereby altering his former position, he is estopped 
from denying such a state of facts. 

Approved in Garden v. Short (Tex. Civ.), 31 S. W. 248, where hus- 
band and wife, in procuring loan, make affidavits designating other 
property than that offered as security as their homestead, they are 
bound by such statements. 

86 Tez. 293-295, HUTCHINSON ▼. STATE. 

Indictment Under Article 1870 of Paschal's Digest, failing to 
specifically charge that defendant accepted a bribe, is insufficient. 

Distinguished in Olover v. State, 109 Ind. 395, 10 N. E. 284, where 
prosecution of school trustee was for accepting money as bribe, and 
under different statute to ours. 

An Offer by Officer to receive a bribe is not punishable by law. 

Approved in State v. Bowles, 70 Kan. 838, 79 Pac. 731, following 
rule. See notes, 97 Am. Dec. 712, 713, 717; 5 L. R. A. 815. 

Distinguished in People v. Hammond, 132 Mich. 425, 93 N. W. 1085, 
upholding indictment charging solicitation of bribe by member of 
legislature; Schutz v. State, 125 Wis. 456, 104 N. W. 91, upholding 
bribery indictment charging receiving of promise to pay money in 
future. 

To Constitute Bribery gift or emolument must be bestowed to in- 
duce officer to do act in violation of law or in manner forbidden by 
law. 

See note, 116 Am. St. Rep. 39, 40, 45. 

36 Tez. 295-296, SEWARD v. L'ESTRANGE. 

Note Oiven by One Partner after dissolution of partnership in 
settlement of a partnership debt does not extinguish the debt. 

Cited in note, 76 Am. Dec. 127. 

36 Tez. 305-307, FRANK v. EAIOLEE. 

An Indorsement of Part of Note is ineffectual to transfer the title 
to the note, or to invest the indorsee with a right of action upon 
it in his own name. 



311 NOTES ON TEXAS EEPOETS. 36 Tex. 307-320 

Approved in Harris Co. ▼. Campbell, 68 Tex. 29, 2 Am. St. Bep. 
472, 3 8. W. 247, and Avery v. Popper (Tex. Civ.), 34 S. W. 326, both 
reaffirming mle. 

Diatinguished in Goldman ▼. Blum, 58 Tex. 641, where suit was by 
one owning interest in note and lien. 

If Bearer or Indorsee of note holds it without consideration and 
in trust for payee, the maker is entitled to any defense against the 
note which he could make if the payee was plaintiff. 

Approved in Steagall v. Levy, 3 Tex. Ap. Civ. 569, reaffirming rule. 

36 Tez. 307-314, aATLES v. TATLOU. 

Wliere Sureties on SherifiTs Bond were compelled to pay judgment 
through failure of sheriff to return execution, such sureties were held 
to be subrogated to rights of judgment creditor. 

Approved in Faires v. Cockerell, 88 Tex. 437, 31 S. W. 194, 28 
L. B. A. 528, surety paying debt of principal obligor is subrogated to 
securities and liens held by creditor. See note, 14 L. B. A. (n. b.) 
156. 

86 Tez. 315-317, THOMAS v. STATE. 

When Defendant's Oase was Galled Out of Its Order in advance of 
some forty other cases, and defendant forced to trial unprepared, it 
was held erroneous. 

Distinguished in Nichols v. State, 3 Tex. Ap. 547, court postponed 
ease for a few days, over objection of defendant, to enable state's 
witnesses to be present at trial, held not error; Wright v. State, 
10 Tex. Ap. 479, held not error where court term was limited to one 
week, and defendant's case was the only jail case, and no injustice 
was shown by being forced to trial. 

When the Biile Laid Down In the Statute with reference to the 
challenge of jurors is complied with, nothing further is demanded. 

Approved in Bowman v. State, 41 Tex. 418, where bill of exceptions 
failed to show defendant exhausted his peremptory challenges, his 
objection to juror for cause was not considered; Bothschild v. State, 7 
Tex. Ap. 543, an impression, though derived from the evidence, does 
not disqualify juror; State v. Walton, 74 Mo. 282, an impression or 
opinion which would readily yield to evidence, held not to disqualify 
juror; State v. Bryant, 93 Mo. 292, 6 8. W. 110, opinion of juror 
formed from rumor or hearsay, held not to disqualify him; dissenting 
opinion in State v. Culler, 82 Mo. 636, majority holding jurors who 
had read evidence taken before coroner were* disqualified. See note, 
68 L, B. A. 877. 

Juror not Disqualified because he served at trial of one jointly 
indicted with defendant. 

See note, 68 L. B. A. 877. 

Juror Wlio lias Formed Oondnslon on Hearsay whicb it would re- 
quire evidence to reverse is competent where he would decide case 
on law and evidence. 

Digtinguished in People ▼. Mol, 137 Mich. 695, 100 N. W. 914, 68 
L. B. A. 871, where several defendants charged with bribery arising 
ont of same facts, jurors sitting on prior trial of some of conspirators 
(disqualified. 

96 Tez. 319-320, HOWE ▼. MBBBELL. 

Where Plaintiff in Error Failed to get proper service of writ of 
error before defendant in error filed remittitur of excessive judg- 



36 Tex. 321-326 NOTES ON TEXAS REPORTS. 



312 



ment, held that plaintiff in error was not entitled to recover costs of 
appeal. 

Approved in Pearce v. Tootle, 75 Tex. 150, 12 S. W. 537, where 
defendant in error remitted excess on judgment after filing of writ 
of error, judgment reversed and on appeal rendered for judgment be- 
low, less remittitur, at defendant's costs. 

36 Tez. 321-322, PEBBYMAK v. STATE. 

Indictment for Murder Need not Allege that the person murdered 
was a reasonable creature in being. 

Approved in Perry v. State, 44 Tex. 475, Bohannon v. State, 14 
Tex. Ap. 299, and Ogden v. State, 15 Tex. Ap. 459, all reaffirming 
rule. 

Distinguished in People v. Lee Look, 137 Cal. 594, 70 Pac. 662, 
indictment merely stating that defendant accused of felony in that 
he killed A B is insufficient, as it does not state human being was 
killed. 

When the Oonrt Failed to Charge on Murder in the first and second 
degree, held not reversible error where the jury only found de- 
fendant guilty of murder in the second degree. 

Approved in Sharpe v. State, 17 Tex. Ap. 508, indictment charging 
defendant with murder with "malice aforethought, by shooting the 
deceased with pistols," etc., held this allegation charges any kind of 
murder in the first degree. 

36 Tez. 323, EVANS Y. STATE. 

In Action by State Against an Assessor and OoUector on his 

official bond, it was held proper to allow the state interest on amount 
of taxes held by such collector after first of January. 
Approved in Dean v. State, 54 Tex. 316, reaffirming rule. 

36 Tez. 324, OASTELLO v. STATE. 

Indlctmoit Charging Defendant With Theft of three head of neat 
stock or beeves was held defective for uncertainty. 

Approved in Countryman v. State, 52 Tex. Cr. 24, 105 S. W. 181, 
indictment charging unlawful carrying of knuckles "on or about" 
instead of "on and about" defendant's person is insufficient; Terri- 
tory V. Christman, 9 N. M. 587, 58 Pac. 344, use of statutory de- 
scription "one neat cattle" in indictment for larceny is sufficient. 

Distinguished in Thomas v. State, 18 Tex. Ap. 222, where indict- 
ment was for forgery, and instrument claimed to have been forged 
was set out in indictment. 

36 Tex. 325, STATE v. PETEBS. 

Indictment for Assault With Intent to Murder, held to contain 
every necessary averment. 

Approved in State v. Walker, 40 Tex. 486, and Porter v. State, 1 
Tex. Ap. 395, both reaffirming rule. 

36 Tez. 325-326, STATE v. DAVIDSON. 

It is Proper to Quash indictment charging commission of offense 
after date of finding of indictment. 

Approved in State v. Ingalls, 59 N. H. 89, reaffirming rule; United 
States V. Borncmann, 13 Saw. 361, 35 Fed. 826, a misrecital of date 
of finding the indictment, with caption, held not to be a fatal error.. 



313 NOTES ON TEXAS REPORTS. 36 Tex. 326-351 

86 Tex. 326-332, THOMPSON v. STATE. 

Indictment for Murder is sufficient without alleging the murder 
was unlawfully committed. 

Approved in Morrison v. State, 40 Tex. Cr. 488, 51 S. W. 361, and 
Bean v. State, 17 Tex. Ap. 68, both reaffirming rule. 

The Jnry are the Exdusiye Judges of the credibility of witnesses, 
and the truthfulness or falsity of their statements. 

Approved in G. C. & S. P. Ry. v. Holt, 1 Tex. Ap. Civ. 480, re- 
affirming rule. 

36 Tex. 33^-333, BARNES ▼. STATE. 

Recognizance not Requiring Defendant to Appear at any particular 
place to answer the indictment is fatally defective. 

Approved in Williamson v. State, 12 Tex. Ap. 170, and Wegner t. 
Stete, 28 Tex. Ap. 421, 13 S. W. 609, both reaffirming rule; Pill v. 
State, 43 Neb. 26, 61 N. W. 97, holding bail bond miilit state court 
to which the prisoners shall appear. 

Distinguished in Ray v. State, 16 Tex. Ap. 270> when recognizance 
was conditioned that defendant should appear before district court 
then in session; Thrash v. State, 16 Tex. Ap. 273, ^here all the 
requisites of code were complied with. 

36 Tex. 334-335, OILLMORE v. STATE. 

In Felony Oases Oourt should instruct as to law applicable to 
facts in case, and it is left to its sound discretion to determine the 
character and extent of charge. 

Approved in Elliston v. State, 10 Tex. Ap. 366, the law requires 
court to charge all the law applicable in felony cases. 

36 Tex. 337-344, LINDSAY ▼. STATE. 

Where Defendant and Deceased bad Been Traveling Companions^ 
and apparently friendly up to few minutes before killing, held sui'- 
licient to justify charge of murder in second degree of manslaughter. 

Approved in Hamby v. State, 36 Tex. 529, Luera v. State, 12 Tex. 
Ap. 261, reaffirming rule; Williams v. State, 7 Tex. Ap. 398, in case 
of doubt in mind of judge as to propriety of submitting charge of 
manslaughter, prisoner should have benefit of the doubt. 

36 Tex. 345, JENKINS ▼. STATE. 

Indictment Laid Venue in Brozoria Oounty, and court charged 
jury if they did not believe offense was committed in Brozoria 
county, but within boundaries of Texas, to find defendants guilty, 
held erroneous. 

Approved in Moore v. State, 2 Tex. Ap. 351, proof of venue should 
not be left to intendment or presumption. 

36 Tex. 346-347, ROBERTSON v. STATE. 

Where Person is Arrested for felony in county other than where 
crime is committed, habeas corpus does not lie until preliminary 
examination before a justice of county where offense was committed. 

Approved in Ex parte McCorkle, 29 Tex. Ap. 20, 13 S. W. 991, 
Ex parte Krug (Tex. Cr.), 60 S. W. 39, both reaffirming rule. 

36 Tex. 350-361, GADSON v. STATE. 

To Constitute Theft Property must have been fraudulently taken 
from possession of owner, or from possession of some person holding 
same for owner. 



36 Tex. 352-365 NOTES ON TEXAS BEPORTS. 



314 



Approved in Watts v. State, 6 Tex. Ap. 264, and Case v. State, 
12 Tex. Ap. 230, both reaffirming rule; Thomas v. State, 1 Tex. Ap. 
296, holding proof of theft of gelding from possession of owner^s 
servant supported indictment of theft from owner. See notes, 88 
Am. St. Rep. 566; 57 Am. Dee. 271. 

36 Tex. 35^-353, STATE ▼. WILLIAMS. 

Indictment for Murder wholly failing to state the manner and 
means hy which deceased came to his death is insufficient. 

Approved in Hamby v. State, 36 Tex. 529, Drye v. State, 14 Tex. 
Ap. 191, and Brown v. State, 43 Tex. Cr. 297, 65 S. W. 531, all re- 
affirming rule. 

36 Tex. 353-356, OOBLETZ ▼. STATE. 

Where Clerk Employed by Merchant who slept in store at nights 
took money lind goods therefrom, held to be theft, and not em- 
bezzlement. 

Cited in following note: 98 Am. Dec. 139. 

Olerk in Mercantile House has qualified possession as to strangers, 
but as against his principal he has no possession. 

Cited in Minor v. State, 55 Fla. 87, 46 So. 300, holding clerk mis- 
appropriating goods of employer, guilty of larceny and not of em- 
bezzlement. See note, 98 Am. Dec. 128. 

36 Tex. 356-363, BABNES T. STATE. 

Confessions Made by Party while under arrest, induced by promises 
or threats, cannot be used in evidence against him; neither can they 
be used unless he was cautioned immediiately preceding confession. 

Approved in Walker v. State, 7 Tex. Ap. 263, reaffirming rule; 
Maddox v. State, 41 Tex. 208, voluntary confession by defendant of 
theft of two mules and buggy, made after being cautioned, is ad- 
missible; Baker v. State, 25 Tex. Ap. 26, 8 Am. St. Rep. 430, 8 S. 
W. 25, caution need not immediately precede the confession; Barth 
V. State, 39 Tex. Cr. 383, 73 Am, St. Rep. 938, 46 S. W. 229, confession 
must be within reasonable time after warning; Coffee v. State, 25 
Fla. 512, 23 Am. St. Rep. 533, 6 So. 496, illegal influences prompting 
confessions will be presumed to follow and taint subsequent confes- 
sions unless contrary is shown; Murray v. State, 25 Fla. 533, 6 So. 
499, error for court to admit evidence of confession, over objections 
of defendant, and leave question of its materiality to jury. See 
note, 18 L. R. A. (n. s.) 792. 

Presumption is That Influence of Threats or promises once made 
continued to operate. 

See note, 18 L. R. A. (n. s.) 858. 

36 Tex. 364-365, STATE ▼. MANSKEB. 

Indictment Charging Defendant with permitting game of cards to 
be played in house under his control, known as the "Occidental 
Saloon," held insufficient as not defining place where spirituous 
liquors were retailed. 

Approved in State y. Shult, 41 Tex. 548, indictment for playing 
"a game of cards," held sufficient indictment for playing "a game 
with cards"; Tummins v. State, 18 Tex. Ap. 14, indictment for 
playing cards in "quirt shop," a place commonly used for gaming, 
held insufficient; Early v. State, 23 Tex. Ap. 366, 5 S. W. 122, proof 
of playing cards in room over saloon, insufficient to support indict- 



315 NOTES ON TEXAS BEPOKTS/ 86 Tex. 366-382 

ment for plajing cards in saloon; Snow ▼. State, 50 Ark. 561^ 9 S. 
W. 306, saloon is a place where eider, birch beer, ginger ale, and 
like refreshments are served; Merced Co. v. Helm, 102 Cal. 167, 36 
Pae. 401, saloon may be kept for many other purposes than retail- 
ing liquors; Cardillo y. People, 26 Colo. 359, 58 Pac. 679, statute 
prohibiting saloon-keepers from keeping open on Sundays held to 
be constitutional; Brewer etc. Go. ▼. Boddie, 181 111. 623, 55 N. E. 
49, corporation leasing premises for saloon purposes, which was 
only authorized to sell soda water, cannot defeat action for rent 

by plea that it exceeded its chartered rights. 

• 

86 Tez. 366-375, BYBEE v. STATE. 

State Should not be Compelled separately to try a defendant 
whose acquittal may depend upon technical grounds, merely that 
if acquitted he may be used as witness in favor of his codefendant. 

Approved in Boothe y. State, 4 Tex. Ap. 207, where two defendants 
are jointly indicted, and one demands severance, the state has right 
to elect which case shall be tried first. 

Where Two or More Defendants are tried together and there is 
little or no evidence against some of them, latter may demand jury 
to pass upon their ease before other defendants have opened their 
defense, so that they may not be deprived of the evidence of code- 
fendants inculpated by the state's evidence. 

Approved in Tucker y. State, 7 Tex. Ap. 557, reaffirming rule. 
Cited in note, 62 Am. Dec. 562. 

Distinguished in State v. Johnny, 29 Nev. 217, 87 Pac. 7, where 
two persons jointly indicted were jointly tried and after state rested 
defendant rested and moved that case be given to jury before any 
testimony offered on behalf of codefendant| motion properly denied. 

36 TSZ. 375-377, JOHNSON T. STATE. 

Defendant waa Oonvicted of Horse Theft for taking up and using 
horse that had been running on range for years, which people used 
st pleasure and owner was unknown; held, evidence was insufficient 
to support conviction. 

Approved in Wilson v. State, 18 Tex. Ap. 273, 61 Am. Bep. 310, 
reaffirming rule. Cited in notes in 57 Am. Dee. 274, 275; 88 Am. St. 
Bep. 604. 

In Larceny Taking most be with Felonions Intent of permanently 
depriving owner of property. 

See note, 4 L. B. A. 291. 

86 Tex. 379-382, HUGHES T. BB00K8. 

Upon Finding tliat Attachment was wrongfully sued out, without 
farth'er finding that it was malicious and without probable cause, 
defendant was not entitled to recover attorneys' fees. 

Cited in following notes: 73 Am. Dec. 255; 77 Am. Dec. 156; 81 
Am. Dec. 473; 68 Am. St. Bep. 274; 93 Am. St. Bep. 466. 

Where Judgment was for Actual Damages and attorney's fees, and 
plaintiff was not entitled to recover her attorney's fees, held that 
remittitur would not cure defect in judgment. 

Approved in Hoskins v. Huling, 2 Tex. Ap. Civ. 143, remittitur does 
not lie where action is for damages for tort. See note, 26 L. B. A. 
394. 

Distinguished in International etc. B. B. v. Wilkes, 68 Tex. 622, 
2 Am. St. Bep. 519, 5 S. W. 493, where amount assessed by jury was 
entirely for actual damages. 



36 Tex. 382-520 NOTES ON TEXAS BEPORTS. 



316 



36 Tex. 382-448, HOUSTON ETC. B. B. Y. KUECHLEB. 

Acts of Iiegifilatare of January 30» 1854, donating to Tail roads 
sixteen sections of land for every mile of railroad built, held to 
apply to companies already chartered, as also to those chartered 
subsequent to such acts. 

Approved in State v. Hoijston etc. By. Co., 95 Tex. 528, 68 S. W. 
785, following rule; Quinlan v. Houston etc. By. (Tex. Civ.), 24 S. 
W. 695, act of 1854 donating lands to railroads continued in force un- 
til adoption of constitution of 1869; Houston etc. By. v. State (Tex 
Civ.), 39 S. W. 403, 404, constitution of 1869, article 10, section 6, 
did not revoke act of 1854, donating certain lands to railroads. 

Overruled in Quinlan v. Houston etc. By., 89 Tex. 369, 373, 34 S. 
W. 740, 742, holding act of January 30, 1854, donating lands to rail- 
road companies, did not apply to railroads thereafter chartered. 

Mandamus is Maintainable against commissioner of general land 
ofBce at instance of railroad company, to compel issuance of land 
certificate to which such company was entitled. 

Approved in Johnson v. Campbell, 39 Tex. 87, holding mandamus 
would lie to compel county treasurer to pay voucher presented to 
him properly approved; Kuechler v. Wright, 40 Tex. 624, 667, 669, 
673, holding mandamus would lie to compel the commissioner of 
general land office to perform a ministerial duty; Galveston etc. By. 
V. Gross, 47 Tex. 432, in issuance of land certificates to railroads, 
the commissioner of general land office is beyond judicial control; 
dissenting opinion in Bledsoe v. International B. B., 40 Tex. 586, 
592, majority holding district court had no authority to issue writ 
of mandamus to comptroller of state. Cited in following notes: 
55 Am. Dec. 807; 98 Am. Dec. 511; 3 L. B. A. 54. 

Overruled in Galveston etc. By. v. Gross, 47 Tex. 434, district court 
has no jurisdiction by mandamus or otherwise to control action of 
commissioner of general land office in issuance of land certificates. 

Distinguished in Bledsoe v. International B. B., 40 Tex. 567, 569, 
comptroller cannot be compelled by mandamus to countersign and 
register the bonds provided under act of 1870. 

36 Tex. 511-618, SPUBLOCK v. SUUJVAN. 

Where Purchaser Takes Mortgage to secure pre-existing demand, 
he is not entitled to protection accorded bona fide purchaser for 
valuable consideration. 

Approved in Steffian v. Milmo etc. Bank, 69 Tex. 517, 6 S. W. 
824, and Sweeney v. Bixler, 69 Ala. 542, both reaffirming rule; 
Jackson v. Waldstein, 10 Tex. Civ. 165, 30 S. W. 51, burden of proof 
rested upon mortgagee to prove consideration that would support 
his mortgage; Bice v. Soders, 1 Posey U. C. 618, 619, creditor taking 
property in payment of debt due by vendor, sufficient valuable con- 
sideration to support conveyance, where vendee had no notice of 
prior equities; Dunlap v. Green, 60 Ped. 248, surrender of note as 
consideration of conveyance without notice of prior equities entitles 
grantee to protection as purchaser for valuable consideration. See 
note, 2 L. B. A. 530. 

36 Tex. 518-520, BEBNHABD v. DE FOBBEST. 

Tbe Act of the Legislature dispensing with seals and scrolls to 
certain instruments is applicable to attachment bonds. 

Approved in Gasquet v. Colling, 57 Tex. 340, reaffirming rule. 



NOTES ON TEXAS BEPOBT& 86 Tax. 521-539 

n-523, BEOOBD T. STATE. 

nt hu Leg&l Kigbt to Object to being pnt upon trial until 
in aervsd with copj of indictment. 

d in McDnff v. State, 4 Tex. Ap. 61, where no copy of 
had been served on either defendant or his attome; up 
Id error to force defendant to trial at 



!3-eZ9, HAUBT t. STATE. 

rat ObAtglog Defendant with having iliot deceased in the 
lat, and lide, giving him one mortal wound of which he 
;here initantly died, i> good on demurrer. 
d in State v. Sanders, 76 Uo. 3S, realErming rule. See 
B. A. (n. B.) 1022, 1023. 

a Identifying Bod; aa that of peraon who had stated that 
certain description had escaped from him, and who on 
that defendant had such horse, said that defendant was 
wished to see, and thereupon went in search of defendant, 
tile in murder case to show relationa between deceased and 



aomicide hu Been Proren, that fact alone aathorUes pro- 
of malice and will sustain verdict of murdar in second 
t to conviet of murder in Bret degree express malice must 

id in Aguilar v. Territory, 8 N. M. 506, 46 Pac. 344, re- 
rule; State v. Gibson, 43 Or. 187, 73 Pac. 334, statute de- 
:ent to murder is conclusively presumed from use of deadly 
lusing death within year, applies only where there are no 
' or justifying circumstances or excuses. Cited in follow- 
18 Am. Dec. 784, and 7S Am. Dec. 529. 

»-631, WADE ▼. WADE. 

BxecDtor, Acting as Snch, purchases widow's Interpst in 
1 in part payment indorsss, in blank, as eiecutor, certain 
otes executed by third parties to decedent, indorsement 
pursuance of contract whereby no stipulation for indorse- 
ecourse was made, held that indorsement was mere trans- 
ht of action on. notes, and did not bind either executor or 



. Alexander, 51 Tex. 502, reaffirming rule. 



11-639, KOia Y. CA8SIDT. 

*art7 Contracted to Pay Encumbrances on property wltbin 

, in conKlderatioD of a conveyance of the property, but 
n the two years, without paying encumbrances, held vendor 
ireseat encumbrances to vendee's administrator. 
d in McLane v. Paschal-, 47 Toi. 370, sale of homestead 
1 of trust is forced sale. See note, TO L. B. A. 142. 



3C Tex. 542-592 NOTES ON TEXAS BEPOBTS. 



dlS 



36 Tez. 542-544, 14 Am. Bep. 380, ANOELIf ▼. STATE. 

Where Party Besistlng arrest attempts to kill officer, but acei- 
dentallj kills a third person, the killing is murder. 

Approved in McGonnell v. State, 13 Tex. Ap. 401, if appellant, 
while assaulting his wife with intent to murder her, accidentally kills 
their child, he is guilty of murder in the second degree. Cited in 
notes, 19 Am. Bep. 3; 90 Am. St. Bep. 583; 8 L. B. A. 536. 

Where Officer is KiUed while attempting to arrest one disturbing 
peace, crime is murder. 

See note, 66 L. B. A. 363, 365. 

36 Tex. 544-^45, BODOEES ▼. FEBGUSON. 

Sheriff may be Liable to Exemplary Damages for abuse of powers. 
See note, 86 Am. St. Bep. 410. 

36 Tex. 546-547, COLLINS T. TBACT. 

Oonstitations are Made With Beference to existing laws, which are 
not changed by the constitution except so far as they may be incon- 
sistent with its provisions. 

Approved in Hunt v. State, 7 Tex. Ap. 234^ reaffirming rule. 

Where Governor Appointed County Treasurer under act of June 
28, 1870, held that such county treasurer had vested right in the 
office, and could not be removed except for cause. 

Approved in Territory v. Ashenfelter, 3 N. M. 575, 12 Pac. 898, 
state executive has no power to remove officer at will; Yerger v. 
State, 91 Miss. 823, 45 So. 853, under code, section 3598, fixing term 
of penitentiary employees, incoming board cannot dismiss employee 
on ground that board deemed it to best interest of public service to 
remove employees selected by old board. See note, 15 L. B. A. 98. 

Power of Bemoval ftom Office is incident to power of appointment 
only where office is held at pleasure of appointing power. 

Approved in Petets v. Bell, 51 La. Ann. 1628, 26 So. 445, and Ter- 
ritory V. Ashenfelter, 4 N. M. 104, 12 Pac. 898, both reaffirming rule; 
Dullam V. Willson, 53 Mich. 421, 51 Am. Bep. 151, 19 N. W. 126, 
governor's power of removal of state officer can only be exercised for 
specific causes mentioned in constitution. 

36 Tex. 548-553, TOWNSEND v. QTHNAN. 

Petition to Enjoin Judgment and to establish offsets against same, 
acquired before notice of assignment of judgment does not disclose 
sufficient equities unless it allege absolute insolvency of defendant, 
and that petitioner had bought and paid for offsets before notice of 
assignment. 

Cited in Townsend v. Quinan, 47 Tex. 6, historically while referring 
to former appeal of same case. See note, 30 L. B. A. 570* 

86 Tex. 554-592, KINNEY v. ZIMPLEMAN. 

The One Per Cent School Tax levied by the board of school direc- 
tors under section 5 of an ''Act to organize and maintain a system 
of public free schools," approved April 24, 1872, was a special tax, 
and was not repealed by act of April 22, 1871. 

Approved in State v. Bremond, 38 Tex. 119, 120, 123, Peay v. Talbot, 
39 Tex. 344, and Willis v. Owen, 43 Tex. 48, 71, all reaffirming rule. 

Legislature may Delegate the Power to district the state for educa- 
tional purposes. 

Approved in Boss v. Board of Supervisors, 128 Iowa, 437, 104 N. W. 
509, 1 L. B. A. (n. s.) 431, upholding code, title 10, chapter 2, as 



N0TI3 ON TEXAS EEPORTa '36 T«i. 592-637 



-602, PIiAMTEBS' BAITK T. SVAN a 
ind Holder «f Imtnunotit made payable to maker and in- 
im, and also iDdorsed bj acceptor, may treat same a» bill 
1, and SQB drawer and acceptor, or treat it aa note and 

in Blum t. Logging, 53 Tex. 137. indorsee of assignee of 
natniment, presumed to be bona flde owner ol same when 
evidence by Mm; Hice v. Soders, I Posey XJ. C. 819, vendee 
or existing debt due by vendor, ss cnnsideration for con- 
land, without notice of equities of third parties, held to 
nt consideration. See note, 60 Am. Dec. 1S8. 

-829, WHins ▼. poi;k. 

Made Between Two Parties living in Texas daring tlie 
o freight cotton to Mexico, being in aid of the Bebellion, 
nforced. 

in Lewis v. Alexander, Gl Tex. 5B2, Pfenffei r, Haltby, 
I, and Lane v. Thomas, 37 Tex. 15S, all reafQrming rale; 
nnett, 39 Tex. 310, contract for transportation of coin into 
Mexico, dnring the Civil War, cannot form basis of cause 
Uexauder v. Lewis, 47 Tex. 490, allegation that contract 
nsportation and sale of cotton in Mexico for purpose of 
iplies to Confederate army constitutes good defense. See 
E. A. (n. s.) 583. 

Bgal Contract Fnllr Executed, court will not litigate claims 
ijured thereby. 

in Jones v. Williams, 41 Tex. 401, applying mle where 
lonfederate government bought cotton from part owner 
)wned by him and plaintiff and latter was minor. 

-634, BOUSE ▼. 80DEE. 

t Employer intended to evade blockade and revenue taws 
Dg point of destination is no defense to action on contract 
of freight from one point to another in Texas dnring the 

in Gerhard v. Neese, 36 Tex. 636, reafBrming rule; Illinois 
'. Pacific By., 117 Cal. 314, 49 Pac. EOl, bonds issued by 
apany in contravention of law are valid in hands of par- 
id nothing to do in promoting issuance thereof; Hanover 
I. First Nat. Bank, 109 Ped. 425, a banking contract in the 
n and psrforniBnce of which there is nothing illegal is en- 
ough siding violater of law. 

-637, QEBHABI) T. NEESE. 

s Contract to Hani Cotton from one point to another in 
S5 was not illegal, because the cotton owner may have had 
t or illegal intent to take it into Mexico. 
in Hanover Nat. Bank v. First Nat. Bank, 109 Fed. 425, 
lat a banking contract, the consideration and performance 
'e lawful, aids another in evading a law is no bar to its 

n OuTlor la Bound to reasonable expedition if no partie- 

flxed upon. 



36 Tex. 638-650 NOTES ON TEXAS KEPOBTS. 



820 



Approved in Haker v. Boedeker, 1 Tex. Ap. Civ. 582, price that 
crop would probably have sold for if planted and mature, too remote 
damages, in suit for breach of contract. Cited in note, 11 Am. St. 
Eep. 366. 

36 Tex. 638-639, JENKINS T. STATE. 

Indictment for Unlawfully Oarrying a Pistol need not negative cir- 
cumstances under which defendants could lawfully carry same. 

Approved in State v. Rupe, 41 Tex. 34, indictment for destroying 
child while in act of being born need not negative circumstances 
under which such acts would be justified; Johnson v. People, 33 Colo. 
233, 108 Am. St. Rep. 85, 80 Pac. 136, in charging crime of murder 
in procuring abortion, indictment need not negative exceptions stated 
in statute as justification. 

Overruled in State v. Duke, 42 Tex. 461, holding indictment for un- 
lawfully carrying deadly weapons should negative circumstances under 
which accused might lawfully carry same. 

36 Tex. 639-641, BARNES T. STATE. 

Tbe Appellate Court cannot Revise the discretionary power of the 
trial court in refusing a change of venue. 

Approved in Buie v. State, 1 Tex. Ap. 454, court may have wit- 
nesses sworn, and testify as to their knowledge of matters deposed 
to by them in support of application for change of venue; Houillion 
V. State, 3 Tex. Ap. 544, counter-affidavits will be received and con- 
sidered by court in considering application for change of venue. 

36 Tex. 641-642, INTERNATIONAL R. R. 00. v. THE CONTROL- 
LER. 
Supreme Court lias No Original Jurisdiction in mandamust 
See note, 58 L. R. A. 846, 854. 

36 Tex. 642-644, MURRAY v. STATE. 

Act of Accused in Ooing Off and Arming Himself to renew diffi- 
culty, amounts to provocation of difficulty. 

Approved in State v. Short, 121 La. 1034, 46 So. 1007, following 
rule. See notes, 5 L. R. A. (n. s.) 814; 45 L. R. A. 697. 

36 Tex. 644-645, SHORT T. STATE. 

Indictment Cliarglng Defendant With Theft of one beef steer, held 
to sufficiently describe the property. 

Approved in Camplin v. State, 1 Tex. Ap. 109, indictment for theft 
of two work oxen, held sufficient description; Pullen v. State, 11 Tex. 
Ap. 91, indictment for unlawfully branding "colt," held sufficient de- 
scription; Sanders v. State, 86 Ga. 724, 12 S. E. 1060, indictment for 
converting or otherwise disposing of fifteen head of beef cattle, held 
insufficient. 

36 Tex. 645-646, JAMES v. STATE. 

Under Indictment for Assault with intent to murder, defendant 
may be convicted of aggravated assault and battery. 

Approved in Porter v. State, 1 Tex. Ap. 395, and Davis v. State, 20 
Tex. Ap. 303, both reaffirming rule. 

36 Tex. 648-650, BARTEE ▼. HOUSTON ETC. R. R. 

Action for Trespass may be brought in any county wherein the tres- 
pass is committed. 



NOTES ON TEXAS KEPOHTS. 36 Tei. 652-665 

a Houston etc. Rj. t. Oram, 49 Tex. 344, and Houston 
Graves, 50 Tex. 201, both reaffirming rule. 
Oompaiiy !■ an Artiflcl«l Penon, and for many purpoeei 
1 law as aabject to the same responaibilitiea as natural 

n Fleming t. Teisa Loan Agency, 87 Tex. E40, 27 8. W. 
A. 2S0, reafflriuing rule; Fagan t. Boyle Ice etc. Co., 6S 
word "person" held to include "corporation." See note, 

;s. 

54, ANDEB80N V. 0A8SADAT. 

on Hota and to Set Aalde Ftaadnlant Ooarerance was 
lO district court, the land was sold on execution on an- 
it in justiee'a court; held purebaser at such tale acquired 

D Cassaday v. Anderson, 53 Tax. 537, reaffirming rule; 
LUderson, S3 Tex. 535, second suit in treapaas to try title 
I purtiee and for same laud is not subject to defense of 
I, where it is a new and different suit. 

57, SPBAQUE t. IBELAND. 

Cy ExecntWt Two Deeds of Trust on same property to 
■bts, a sale by trustee under first deed of trust passed 
rty, notwithstanding the debt was barred by limitation, 
n Gold/rank v. Young, 64 Tax. 437, reaffirming rule; 
ler, 6T Tex. 279, 3 S. W. 274, statutes of limitation op- 
remedy of enforcement in courts solely. Cited in notes, 
i39; 95 Am. St. Bep. 687; 13 L. R. A. (n. s.) 12H. 
ed in Blaekwell v. Barnett, 52 Tex. 331, when debt 
limitation, and limitation was specially pleaded. 

ei, HOUGH T. HAMMOND. 

mKj be Granted after term npon equitable grounds, 
shows sufficient legal excuse for not having made appli- 
n trial in term. 

n Hammond T. Hough, 52 Tex. 72, Chisholm v. Day, 
V. 264, and McCorkle v. Everett, 19 Tex. Civ. 560, 41 S. 
eafflnaiug rule; Dallas Oil etc. Co. t. Portwood (Tex. 
W. 1018, judgment set aside, though motion not filed 
ays after judgment where moving party had no notice 
• til) after judgment and used due diligence in present- 
lill T. Bodgers, 37 Tex. 631, statute requiriog motions 
to be filed within two days from rendition of judgment 

See note, 67 Am. Dec. 653. 
Ement Is Bendered Against Tenants without notice to 

landlord, by sufficient allegations, may have judgment 
ubsequent term, and appear and defend same. 
n Moser v. Hussey, 67 Tex. 457, 3 S. W. 689, following 
. Allen, 56 Tex. 181, judgment against tenant without 
llord Is not conclusive against landlord. Cited in notes, 
173; 112 Am. St. Bep. 25. 

66, IaACBY T. CLEMENTS. 

se to a Besnltlng Trust the money must be paid at the 

luiehase of the land. 

!. Notes— 21 



36 Tex. 666-677 NOTES ON TEXAS REPORTS. 



322 



Approved in Clements v. Lacy, 51 Tex. 157, Parker v. Coop, 60 Tex. 
118, Oury v. Saunders, 77 Tex. 280, 13 S. W. 1031, Arnold v. Ellis, 20 
Tex. Civ. 269, 48 S. W. 886, and Swaney v. Hutchins, 13 Neb. 269^ 
13 N. W. 283, all reaffirming rule. 

The Domicile of the Husband is, in contemplation of law, the domi. 
cile of the wife. 

Approved in Prater v. Prater, 87 Tenn. 84, 10 Am. St. Rep. 626, 9^ 
S. W. 364; reaffirming rule; Clements v. Lacy, 51 Tex. 158, the domi- 
cile of the husband draws to it the domicile of the wife. Cited in 
note, 96 Am. Dec. 413. 

The Homestead Interest of the Wife held to attach to husband's un- 
divided one-half interest in land. 

Cited in notes, 63 Am. Dec. 124; 12 L. R. A. 519. 

Wife Voluntarily Abandoning Husband forfeits homestead rights. 

See note, 8 L. R. A. (n. s.) 566. 

36 Tex. 666-668, KOSCHWITZ ▼. HEALY. 

Two Years After Filing Suit to establish account against adminis- 
trator, party filed plea of intervention, claiming account, held such 
plea was in effect original suit, and account was barred by limitation. 

Cited in note, 65 Am. Dec. 145. 

36 Tex. 668-670, MOOBE ▼. CUBBY. 

Vendee In Second Deed Which is Becorded must be a bona fide pur- 
chaser for value without notice of prior, unrecorded deed, to entitle 
him to hold over first deed. 

Cited in note, 17 Am. St. Rep. 290. 

A Party Who has npt Paid the Purchase Money cannot claim pri- 
ority over one who has an older, unrecorded deed. 

Approved in Stanley v. Schwalby, 162 U. S. 277, 16 Sup. Ct. Rep. 
763, 40 L. 968, reaffirming rule. 

36 Tex. 670-672, MANNING ▼. STATE. 

The Penalty Prescribed by Act of December 1, 1871, for nonpay- 
ment of any occupation tax, is the only penalty now enforceable 
against a party for selling liquors in quantities less than a quart. 

Approved in Gorman v. State, 38 Tex. 166, and County v. State, 
41 Tex. 52, both reaffirming rule. 

Distinguished in State v. Pery, 44 Tex. 101, where prosecution was 
for selling intoxicating liquors in quantities more than a quart. 

36 Tex. 675-676, MATHEWS ▼. STATE. 

Indictment Charging Burglary at Night by breaking and entering 
house, held sufficient. 

Approved in Sullivan v. State, 13 Tex. Ap. 464, indictment for bur- 
glary, charging that defendant "did break and enter," held sufficient. 
Cited in note, 2 Am. St. Rep. 383. 

Indictment for Burglary charging entrance was made with intent 
to steal, held sufficient. 

Approved in Simms v. State, 2 Tex. Ap. 114, the felony or crime 
which defendant intended to commit must be set forth in Indictment 
for burglary. 

36 Tex. 676-677, OILLELAND v. DBAKE. 

A Principal Who Neither Authorizes nor Batifies a willful tres- 
pass committed by his agent is not liable therefor. 



NOTES ON TEXAS BEPOETS. 38 Tex. 878-892 

>d in O'NeU v. D&via, 1 Tex. Ap. Civ. 184, Teaffinniug rule; 
Bridgea, 70 Tex. 684, 8 S. W. 603, error for eoart to charge 
tiir was on\y entitled to reeover damages for injuries that 

IsUtotlon in BoeoKDiBiUg JnaUceB of the peace as ei-officio 

nblie does not abolish the office of notarr public as created 

1848. 

)d in Oillelaud t. Drake, 2 Posey U. C. G09, and Brown t. 

Tex. 479, both reafGrming rule. 

'S-6B4, JOKES T. HUF F. 

Igfttioa to Make "a Good and Bofflclent, full and gSDaral, 

deed," binds obligor to execute Bomethiiig more than a bara 

I following notes; 11 Am. Dec. 38; 60 Am. Dee. 172. 
ibator'B Deed, made under order of conrt in accordance with 
>etweeu deceased and vendee, is yalid, though at time of 
I contract deceased was aubject to statute prohibiting alien- 
!e after repeal of statute he ratified contract. 
ed in Houston t. Killough, 80 Tex. 306, 16 S. W. 57, hold- 
te courts of 1S37 had no power to enforce specifie perform- 
Bale of land. 

10-688, MOBSHJ. V. H0PKIM8. 

12 Puent niAT Oliaiiga Homeetead irreipeetiTe of wishes of 
. abandoned place then becomes subject to same laws aa 

es, S8 L. B. A. 87, 82; 8 L. B. A. 820. 

ig Hnsbaiid may Sell Homestead in community property to 

unity debts inespectiTe of wishes of beirs. 

5, 56 L. B. A. 74. 

t Wife's Deatti two-thirds of piece of community property 

omeBtead, her issue entitled in equity te half of two-thirds 

7- 

), S6 L. B. A. 4S, 47. 

.Iter Wife's Deatb last third of price paid by husband with 

r funds and he took deed in own name, he held halt af 

n trust for children. 

), 66 li. B. A. 71. 

I9-6S0, QAZLET r. WATHE. 

t Mftde Jointly by S«vatal Freedmen ts cultivate lands, in 
ther party was to be held responsible for acts of the other, 
I a contract with each, and each freedman may enforce it 

ly- 

lished in Texas etc. By. v. Pollard, 2 Tex. Ap. Cir. 428, 
joinder of husband and wife in enit for personal injuries 
e waa held not to be reached by general demurrer. 

0-692, UII£S ▼. DAVI8. 

on Bepl«Tlii Bond may enjoin exeentioB tot excess STer 

«, 31 L. B. A. 63; 30 L. B. A. 706. 



36 Tex. 693-695 NOTES ON TEXAS EEPOETS. 



324 



36 Tex. 693» CABTEB ▼. CABTEB. 

Plea in Intervention by party claiming title in property in eontro- 
versy must be sworn to, and must be accompanied by bond. 

Approved in Ryan v. Goldfrank, 58 Tex. 358, reaffirming rule; Whit- 
man v. Willis, 51 Tex. 426, parties should be confined in trial of right 
of property to mode provided for under the statute; Lang v. Dough- 
erty, 74 Tex. 229, 12 S. W. 31, claimant to property pursuing his 
remedy under the statute waives his privilege of suit at common law; 
Williams v. Bailey (Tex. Civ.), 29 8. W. 835, where goods were at- 
tached as a security, intervener must put right of third parties to the 
goods in issue to sustain his plea. 

36 Tex. 693-695, OABNEB ▼. STATE. 

Indictment for Theft of Money which failed to charge the money 
was in the possession of the owner, or some other person, is defective. 

Approved in Watts v. State, 6 Tex. Ap. 264, reaffirming rule; Mad- 
dox V. State, 14 Tex. Ap. 447, indictment for theft of horse failing 
to allege the ownership ia fatally defective. See note, 88 Am. St. 
Bep. 566. 



NOTES 

ON THE 

rEXAS EEPORTS. 



CASES IN 37 TEXAS. 



r-9, BIiUMBEBa T. UAUEB. 

Luid la CoiiTB7ed by eammon vandor to one vendee which 

ve been conveyed to prior T«adee, held equity will not grant 

linit former. 

Jd in White v. KingsbuTy, 77 Tei, «J4, 14 8. W. EOl, holding 

t eommon vendor could not recover from other vendee when 

t with notice; Holland v. Thompeon, 12 Tex. Civ. 475, 35 8. 

ding one purchaser disclaiming certain land estopped against 

I mod OoDTsM, known and marked, will control calls Id deed, 
ed in Jones v. Andrews, 62 Tex. 660, holding where other 
I corner more certain, should have gone to jury. 

^12, PBATT T. PHILLIP8. 

On^ IJftblo for Statatorr PMulty where there is such neg- 

i shows diehonest lootive in withholding money collected on 

ed in Bickards v. Bemis (Tex. Civ.), 78 S. W. 241, when 
of execution fund exhibited agreement with plaiDtiffi, whereby 
I have percentage of proceed*, iberifl not liable to statutory 
or failure to pay same. 

S~1S, UIMS ▼. SWABTZ. 

' ASBlgUM In Bankruptcy cannot be eollsterally impeached 

ed in Howard v. Eopperl, 74 Tex. 500, 5 S. W. 631, affirming 
agister in bankruptcy; Curdy v. Stafford, 88 Tex. 125, 30 S. 
ustaining private sale by assignee; State v. Qramelepacber, 
03, 26 N. £. S3, holding auditor could sue for waste on lands 
ted by Congress to Indiana University. See notes, 11 Am. 
89 Am. Dec. 670; 49 Am. Rep. 205. 
« or PurdiMer of Account of bankrupt may sae in his own 

d in CongreM Cons. Co. v, Farson etc Co., 199 HI. 400, 65 
, upholding right of substitution by amendraent of name of 
(325) 



37 Tex. 19-30 



JJOTES ON TEXAS EEPOBTS. 



326 



assignor for ereditors suing in behalf of transferee of claim in suit, 
for that of assignee who has been discharged; Udal v. School Dis- 
trict No. 4, 48 Yt. 589, upholding suit bj bankrupt who purchased 
chose in action from assignee. 

Judicial Notice is Taken of the bankruptcy act. 

See note, 4 L. B. A. 39. 

37 Tex. 19-20, DE CORDOVA t. KK0WI£S. 

Power to Sell "Claims and Effects" is not a power to sell lands. 

Approved in Houston etc. B. B. t. McKinney, 55 Tex. 186, where 
agent to procure right of way contracted that principal should build 
depot, held not bound; Mitchell v. Balderas, 2 Posey U. C. 20, con- 
struing power not to authorize sale of land. See note, 12 L. B. A. 
(n. B.) 665. 

37 Tex. 20-22, GXTBLET T. WABD. 

Funeral Expenses, Expenses of Last Illness^ and family allowance, 
take priority of claims. 

Followed in McLane v. Paschal, 47 Tex. 370, holding wife entitled 
to homestead before execution of deed of trust; Thaxton v. Smith, 
90 Tex. 596, 40 S. W. 16, holding trustee could recover from creditor 
after death of assignor without proceeding against estate. 

S7 Tex. 23-24, MOBTOK T. MAKNIKG. 
One Who Pays Note to Payee at request of maker may sue in his 

own name. 

Followed in McDonnell ▼. Bums, 83 Fed. 869, holding purchaser 
from bank of note after maturity entitled to its benefits; Zeigler ▼. 
His Creditors, 49 La. Ann. 161, 21 So. 673, holding bank taking up 
note of creditor of estate subrogated to his rights; Marquardt Sav. 
Bank ▼. Freund, 80 Mo. Ap. 664, construing payment of note as pur- 
chase. 

Indorser Signing Name in Blank on note is a guarantor. 

Upheld in Heidenheimer ▼. Blumenkron, 56 Tex. 312, where party 
signed on back when note was made, held indorser. See note, 72 Am. 
St. Bep. 680. 

37 Tex. 24-27, FBANK8 T. WILLIAMS. 

AflLdavit for Continuance failing to state that applicant expects to 
obtain the testimony of the absent witness at any future term of 
court is insufficient. 

Beaffirmed in Doxey v. Westbrook (Tex. Civ.), 62 S. W. 788. 

Where Land not Wholly Paid for was surrendered to yendor under 
agreement to sell and give surplus orer money owed to vendee, held 
vendor charged with trust. 

Approved in McCreary v. Gervinner, 103 Ga. 536, 29 S. E. 963, con- 
struing conveyance to husband as express trust to devise to daughter. 

37 Tex. 27-30, McOEE ▼. FITZEB. 

Cropper Cultivating for One-half the Crop, less advances by owner, 
can only mortgage part of crop to which he is entitled. 

Followed in Cook v. Steel, 42 Tex. 59, holding cotton planted be- 
fore mortgage subject to it; Silberberg v. Trilling, 82 Tex. 526, 18 
S. W. 592. holding crop gathered on homestead could be sold under 
mortgage; Beard v. State, 43 Ark. 286, sustaining conviction of felony 



M0TE3 ON TEXAS EEPOETS. 37 Tax. 30-42 

mortgaged crop. Seii notes, 46 Am. Dee. 713; 76 Am. Dee. 

) of Tenant is sabject to cropping agreement with Und 
idvances where mortgagee has notice of agioement, though 

S3 L. B. A. 470. 

enaat Oftvo "Special Lien and Uoitgage" on crop, apeelally 
>p for pajment of advancea for making same, inBtrument 
>ugh not in ordinal? form of mortgage. 
, 23 L. B. A. 468, 477. 

-31, BANOmi T. HEABNE. 

Acknowledslng Acceptanea and receipt of engine cannot 

lent except for defectg fraudulently concealed. 

1 in Banger T. Eearne, 41 Tex. 261, where engine painted 

defecta. 

^, COTTON T. JONSB. 

miut-bs Bead and anbmitted as evidence before It will go 

in Marx t. Freeman, 21 Tex. Civ. 431, 52 S. W. 648, hub- 
nurrer where amount less than Sve hundred dollars. 
ished in Bauman v. Chambers, 91 Tex. Ill, 41 8. W. 472, 
swer setting up deed as trust admitted execution of deed 
Ldiog auHwer. 

I Date of Conunencemeot of a Suit, plaintiff's petition and 
rks thereon mast be offered in evidence, 
i in Wilkinson v. Stanley (Tex. Civ.), 43 3. W. 609, in re- 
in a sequestration bond, the bond, affidavit, and writ with 
urn thereon must be offered in evidence; Texas etc. By. v, 
rex. Civ.), Sfi 3. W. 574, where record is silent as to date 
F original petition and recital in amended petition shows 
rtain date, the qnestioQ is for the jury, 
ved in Texas etc. By. v. Speights, 94 Tex. 354, 60 S. W. 
g trial court takes notice of true date of filing from date 
on original petition on file in the case; Stewart v. Bob- 
)x. Civ. IM, 65 S. W. 8B9, where original pleading super- 
imendment and hag been omitted from record, it may be 
on question of limitations though not introduced in evi- 

t be BTOtUCbt on rejected claim within three months. 

1 in Ennter v. Laniue, 82 Tex. 6S0, 18 B. W. 202, sustain- 

ought ninety days after day of rejection of claim; Walker 

Tex. Ap. Civ. ID, foliowiug rule. 

cation and P reeentatlon of claim is commencement of 

. of the claim. 

I in Morrill v. Hoyt, 83 Tex. 60, 29 Am. St. Bep. 632, 18 8. 

iwing ten per cent attorney's fees on presentation of claim 

-42, OKAITT T. BTAK. 

lattle to be Paid in Confederate money is void. 

. 31 L. B. A. 759. 



37 Tex. 42-72 



NOTES ON TEXAS EEPOBTS. 



328 



37 Tex. 42-47, BUBFORD v. BOSENFIELD. 

Where Verdict i£ Only for Amount, but judgment includes fore- 
closure, if latter not appealed from, cannot be collaterally impeached. 

Followed in Parks v. Hartford Ins. Co., 100 Mo. 381, 12 S. W. 1060, 
construing note as mortgage of homestead; Meyer v. Smith, 3 Tex. 
Civ. 41, 21 S. W. 996, holding promise to pay for land in goods not 
waiver of lien. See notes, 62 Am. Dec. 550; 73 Am. Dec. 218. 

Distinguished in Preston v. Breedlove, 45 Tex. 50, reversing w^here 
verdict only found for amount of note. 

Where There 'Is a ''Lis Pendens," a sale while suit is pending is nul- 
lity. 

Approved in Punchard v. Delk, 55 Tex. 307, binding purchaser "pen- 
dente lite" to agreement waiving misjoinder of actions; Hair v. Wood, 
58 Tex. 78, holding purchaser of homestead pendente lite bound by 
judgment, although not made party; Ferris v. Streeper, 59 Tex. 314, 
dismissing appeal by purchaser "pendente lite." See note, 64 Am. 
Dec. 120. 

Vendee not Paying Price acquires no homestead right. 

See note, 86 Am. St. Kep. 175. 

37 Tex. 50-53, BUBNS v. JONES. 

Service by City or Town Constable is sufficient within county. 

Distinguished in Robinson v. Schmidt, 48 Tex. 17, holding citation 
could not be served by town marshal, although sheriff disqualified. 
See notes, 87 Am. Dec. 281; 98 Am. Dec. 494. 

Homestead Ceases to Exist where no member of family remains 
though last owner left married children or orphaned grandchildren, 
not living with him at time of his death. 

See notes, 4 L. B. A. (n. s.) 396; 56 L. B. A. 55, 56. 

37 Tex. 53-54, BINE ▼. CBOUCH. 

Execution on Dormant Judgment may be enjoined where complain- 
ant shows he is prejudiced thereby. 

See note, 30 L. B. A. 142. 

37 Tex. 56-59, ALSTON v. BOBINETT. 

A Discharge in Bankruptcy cannot be impeached in a state court 
for fraudulent concealment of property. 

Approved in Brown v. Causey, 56 Tex. 343, 345, holding discharge 
under act of 1841 could not be impeached on ground of willfully omit- 
ting plaintiff's debt from schedule; Thurmond v. Andrews, 10 Bush, 
405, following rule where plaintiff alleged failure to publish notice. 

Distinguished in Fields v. Bust, 36 Tex. Civ. 351, 82 S. W. 332, 
under bankruptcy act of 1898, discharge did not bar debt of one who 
was without actual notice of proceedings where debt not properly 
scheduled. 

37 Tex. 59-66, BATTS v. SCOTT. 

Statement of Intention to Occupy Land as homestead will not pre- 
vent conveyance by husband. 

Approved in Blum v. Carter, 63 Ala. 240, enforcing execution where 
only intention to occupy land as homestead offered in defense. 

37 Tex. 67-72, FIiANAOAN v. CABY. 

Discharge in Bankruptcy is bar to action of implied assumpsit. 

Followed in Rowland v. Carson, 28 Ohio St. 629, holding judgment 
for seduction could not be collected against discharged bankrupt; 



NOTES ON TEXAS REPORTS. 37 Tex. 73-30 

Clark, 25 Gratt. 684, boldjng piirrliaser at bonds from ex- 
large discount guilty of implied fraud. 

•3, AIKEH T. CASBOLI.. 

'ndgment cuuiot bo Bend«ced in vacation oi at etiatnberfl. 
>d in Ei parte Ellis, 37 Tex. Cr. 542, 66 Am. St. Rep. 834, 
276, holding judgment for contempt rendered in vacation 
gner v. Edminaton, 1 Tez. Ap. Civ. 371, holdiof petition for 
a could not be dismissed in vacation. 

r3-75, BtntEE T. MATHEWS. 

10 Oonzt will not BotIm Ita Jadgment after close of term 

T clerical errora or mistakeH. 

led in Bums v. Ledbetter, 56 Tex. 2S3, holding award of 
jncTB eonelusive as to questions settled by them; Lowell v. 
Tex. 567, refusing to reconsider where supreme court had 
entry of a judgment in court below. 

I on Former Appoid will not be revised where lower court 
decision on first appeal, whether former decision was right 

;e, 34 L. R. A. 327. 

7-81, JOHNSON V. HOGAN. 

mlnistrator "Da Bonis Hon" cannot sae former administrator 

ivastavit." 

d in Brown v. Franklin, 44 Tex. S65, applying rule to action 
de sale by former administrator; Court of Probate v. Smith, 
147, 17 Atl. 57, applying rule to suit to recover money appro- 
o own use by former administrator. See note, 40 L. B. A. 

^uished In Johnson v. Uorris, 45 Tex. 465, sustaining suit for 
unadministered in hands of former administrator; Ward v. 
Poiey U. C. 125, sustaining suit by heirs for breach of bond. 
:uished and criticised in Todd v. Willis, 66 Tex. 711, 712, 1 
7, holding Johnson t. Hogan not applicable to suit to set 
udulent sale by an administrator. 

12-83, EOWTCZ T. WBiaHT. 

)ok Is not Admtasiblo to establish items of account without 

their correctness. 

tes, 15 Am. Dec. 196; 52 L. R. A. 588. 

4-85, FETT7 t. BABBETT. 

irlll bo Enforced where homestead is abandoned. 

i-ed in Inge v. Cain, 65 Tex. 78, where no evidence of aban- 

betd, lien eould not be enforced. 

ruiahcd in McLane v. Paschal, 47 Tex. 370, setting apart 

d to widow over deed of trust. 

in cannot Sncceed to Homestead Bights of parents unless 

'e remained together as family and occupied premises as 

d. 

te, 56 L. R. A. 56. 

S8-90, GATOSO SA VINOS INST. T. BUBBOW. 
at of Foreign Corporation may intervene to defeat attach- 
nonresident cruUiLuts. 



37 Tex. 90-133 NOTES ON TEXAS EEPOBTS. 



330 



Limited in Mosebj ▼. Burrows, 52 Tex. 405, holding receiver ap- 
pointed by Tennessee court could not claim lands in Texas. 

37 Tex. 90-92, HABTMAK T. THOMAS. 

Surviving Husband cannot Sell Interest of children acquired in 
homestead from mother. 

Approved in Wright v. Doherty, 50 Tex. 40, sustaining recovery by 
heirs of mother's community conveyed by father. See note, 56 L. B. 
A. 73. 

Children cannot Control surviving parent in sale of homestead. 
See notes, 4 L. B. A. (n. s.) 799; 56 L. B. A. 34. 

Purchaser of Homestead in Community Property on sale under trust 
deed is tenant in common with children of deceased wife and is en- 
titled to partition. 

See note, 56 L. B. A. 74, 80. 

37 Tex. 121-122, THOMPSON ▼. STATE. 

On Trial of Criminal Case where only witness of state testified 
without being sworn, it is reversible error to allow him to be recalled, 
after close of argument, to testify. 

Distinguished in Ogden v. State (Tex. Or.), 58 S. W. 1021, failure 
to swear witness is not reversible error where his testimony is imma- 
terial and defendant permitted him to testify without objection. 

37 Tex. 127-130, WALKEB v. JOHNSON. 

Where Tmst Deed Delivered to Beneficiary, held delivery to trus- 
tee not essential. 

Affirmed 'in New South Building etc. Assn. v. Gann, 101 Ga. 681, 
29 S. E. 16, where trustee wrote acceptance on back of deed, held de- 
livery shown; Thompson v. Marshall, 21 Or. 178, 27 Pac. 960, constru- 
ing deed of trust as mortgage; Mason v. Bumpass, 1 Tex. Ap. Civ. 
781, construing note as mortgage of mules. 

Possession and Ultimate Bight of property remain in grantor in d^ed 
of trust to secure debt. 
See note, 7 L. B. A. 276. 

37 Tex. 130-133, WILLIAMS v. WETHEBED. 

Homestead may be Acquired by tenant in common on common es- 
tate. 

Approved in Clements v. Lacy, 51 Tex. 161, 162, following rule; 
Griffie v. Maxey, 58 Tex. 214, citing rule in action to enforce lien 
against homestead; McGuire v. Van Pelt, 55 Ala. 360, holding con- 
veyance of homestead by trust deed by tenants in common, valid as 
against prior purchaser under mortgage; Sentell v. Armor, 35 Ark. 52, 
holding homestead exempt from mortgage on partition of common es- 
tate; In re Swearinger, 5 Saw. 57, Fed. Cas. 13,683, applying rule to 
homestead in Nevada; Cummins v. Denton, 1 Posey U. C. 185, hold- 
ing sale by administratrix void. See notes, 63 Am. Dec. 124, 125; 12 
L. B. A. 519. 

Instance Where Family Acquired No Homestead Bights, being mere 
tenants at will. 

Distinguished in Birdwell v. Burleson, 31 Tex. Civ. 36, 72 S. W. 
449, property rightfully and peaceably held in possession and occu- 
pied as home of family is exempt from forced sale though possession 
be merely permissive. 



NOTES ON. TEXAS BEP0BT8. 87 Tex. 133-158 

S3-134. HOOBE ▼. STATE. 

Ung Hftglrtnta cumot Appior* bail bond after sdjaurn- 

oved in Cmnipeeker t. State, M T«x. Ci. 134, 79 8. W. 664, 
istable having defendant in cuatodj accepted bia bond and 
nd with magiitiate, aceeptanee b^ latter when court not in 
lea not yitiate bond. 

34-135, MATS T. BCTLZDGE. 

S«T«nii» Stamps Pnt oa Hot* hj indorsee Instead of maker, 

idmiaaible. 

ed in SMpman v. Fulcrod, 42 Tex. 249, following rule. 

35-137, BUBOH T. WATTS. 

I on Beplnr Bond not bound where defendant fraudnlestlj 
Iged debt, and atfldavit of attachment defective, and they 
rvene b^ moving to qnaah attachment. 

ed in Hodde v. Susan, SS Tex. 393, holding jnatiee court 
orisdiction where Buretj on claim bond related to joitlce; 
V. Bloom, 91 Tex. 937, 49 8. W. 598, holding miTetiea not 
replevy bond where writ quashed tor defeeta. See note, B8 
42; 89 L. B. A. 779. 

11-146, KOBWOOS r. COBB. 

tra not Personallr Liable for eonvereion of ilaves by an- 

it onlj for value of elaves received hj them. 

ed in Eerr v. Paschal, 1 Pose; IT. C. 708, holding error 

Igment against heir not limited to aaieta. 

.46-151. BUSBT v. LTNN. 

Iriud and Negro DevlBed to Bon as compensaMon for main- 

istator's brother, held a trost created in favor of the biotheT. 

rd in Ljnn v. Busbj, 46 Tex. 601, where same beneficiary 

istead, held eonid not claim support from other heira. 

of TeatMor may be eipreesed by word "wish." 

)d in Barney v. Hayes, 11 Hont. 570, 23 Am. St. Bep. 497, 

84, construing letter aa olographic will. 

B2-154, ELEMMTWq T. BEBD. 

win not Enforce Omtract to convey after thirty-three years. 

in Doll V. Blum, OS Tex. 301, 4 B. W. 490, interpreting 
TCBcission of right to select land where not availed of for 
ears; Wilson v. Bimpson, 6S Tex. 310, 4 S. W. S41, holding 
insufficient for recovery by heira after forty-eight years. 

SS Am. Dee. 144. 

L65-16B, STATE t. COOKE. 

a on Bail Bond cannot plead defective indictment to "scire 

ed in State v. Ake, 41 Tex. 167, following rule, though 
It for swindling defective; Martin v. State, 16 Tex. Ap. 
ing safeties althoagh indictment for theft and convicUon 
Ling; State v. Kyle, 90 Ala. 259, 13 So. 539, holding sure- 
gh indictment not found; State v. Sureties of Erobne, 4 
I, 34 Pac. 5, holding aureties, although both ^ 
on defective. , 



37 Tex. 157-202 NOTES ON TEXAS REPORTS. 



33! 



Distinguished in Smallej v. State, 3 Tex. Ap. 203, discharging 
sureties where bail bond named different offense from indictment. 

37 Tex. 167-159, LANE v. THOMAS. 

One Partner cannot Sue Other for accounting of dealings of lawful 
character so blended with unlawful ones as to be impossible to 
separate. 

See notes, 115 Am. St. Rep. 410; 99 Am. St. Rep. 329; 23 L. R. A. 
(n. 8.) 484, 485. 

37 Tex. 160, REED ▼. HERRINa. 

Declarations of Assignor after assignment of claim are inadmissible 
against assignee. 

Approved in Hinson t. Walker, 65 Tex. 106, holding declarations 
of lender after loan not admissible to show loan not in good faith. 

Wliere Remittitur is Made by Appellee in supreme court he must 
pay costs of appeal. 

Upheld in Pearce y. Tootle, 75 Tex. 150, 12 S. W. 537, charging 
costs to appellee where excessive interest was granted on account. 

37 Tex. 162-165, lANOBEIN ▼. STATE. 

Under the Statute Defendant may waive trial by jury in criminal 
case in justice court. 

Approved in Moore v. State, 22 Tex. Ap. 119, 2 S. W. 636, holding 
defendant could not be forced to jury trial for misdemeanor. 

Distinguished in separate opinion of Wood, J., in State v. Cottrill, 
31 W. Va. 198, 6 S. E. 447, the court, however, being equally divided 
as to waiver of jury in misdemeanor. 

37 Tex. 16&-167, STATE v. RHODIUS. 

Sureties on Recognizance cannot question indictment without pro- 
ducing principal. 

Followed in State ▼. Ake, 41 Tex. 167, holding sureties, though 
indictment for swindling defective; Martin v. State, 16 Tex. Ap. 
267, holding sureties although indictment for theft and conviction 
of swindling; State v. Sureties of Krohne, 4 Wyo. 354, 34 Pac. 5, 
holding sureties although warrant and information defective. 

Distinguished in Smalley v. State, 3 Tex. Ap. 203, discharging 
sureties where bail bond varied from indictment; Wells v. State, 
21 Tex. Ap. 596, see 2 S. W. 807, discharging sureties where indict- 
ment found by thirteen persons. 

37 Tex. 171-173, COLEMAN ▼. BUNOE. 

A Tenant may Plead breach to repair against action for rent. 

Followed in Bacon v. Lloyd, 1 Tex. Ap. Civ. 116, sustaining re- 
covery on note in reconvention. See note, 89 Am. Dec. 490. 

37 Tex. 173-202, FLEMING v. DAVIS. 

Owner of a Head Spring cannot exhaust the water for irrigation 
purposes. 

Approved in Clements v. Watkins Land etc. Co., 36 Tex. Civ. 347, 
82 S. W. 669, one riparian owner may not lawfully exhaust stream 
for irrigation purposes as against rights of lower owner to sim- 
ilar use; Baker v. Brown, 55 Tex. 380, holding use unlawful where 
CO proprietor injured; Barrett v. Metcalf, 12 Tex. Civ. 253, 254, 33 
S. W. 760, holding water could not be used for irrigating to injury 



NOTES ON TEXAS REPORTS. 37 Tex. 202-226 

u*e hj otbers; Mad Creek IrrigatioD etc. Co. v. Vivian, 
I, 11 S. W. 10T9, boldiDg defendaoti had right to divert 
>aQt for irrigating. See notes, 7B Am, Dec. 64S, 643; 
. 545; 41 L. R. A. 742; 30 L. B. A. 668. 
eon B.— Baker v. Brown, 55 Tex. 382, cited as furnishing 
ts as to commencement of adverse poiaession of one of 



rely evidence to be eabmitted 

d in Martinez t. State, 41 Tex. 165, holding similar charge 
n to theft of money erroneona; McCoj v. State, 44 Tex. 
ring mle to charge on posMeeion of hogs; and in Watkins 
2 Toi. Ap. 74, to theft of coat and vest; Brsgg v. State, 
\p. £21, holding pOEseMion of horse six month* after loss 
presumption that party stole it; Lehman v. State, IB Tex. 
51 Am. Bep. 302, nor does poBspsBion after year raise such 
on; State v. Pomeroy, 30 Or. 25, 46 Pac. 800, holding find- 
ads in barn bnt slight evidence. See note, 70 Am. Dee. 448. 

04-210, KNiaHT t. McKETNOLDS. 

Vondee Pa^ Partly In Note of Another which be indorses 

vendor has lien on land for its amount. 

ed in Seott v. Farmers' etc. Nat. Bank (Tex. Civ.) 66 S. 
■rhere purchasers of railroad agreed to extend road certain 

performance of which would benefit directors of vendor 
lly only, latter may recover damages for breach. 

111^10, AOKEBMAN V. SMILEY. 

PnrcbaeOT of Fm subsequently buys intervening lease, lease 

in fee. 
ed in Smith v. Olson, 23 Tex. Civ. 465, 56 8. W. 572, pur- 
laud sued for by defendant at sheriff's aale under eiecution 
Jain tiff, eitinguished plaintiff's claim in pending suit for 
for coal mined by defendant before purchase, 

1&'224, HcOOT T. STATE. 

steosM to Snietiw on Forfeited Ball Bond are those ennmer- 

iction 413, Code of Criminal Procedure. 

ed in State v. Akc, 41 Tex. 167, hglding sureties though 

t for swindling defective; Martin r. State, 16 Tex. Ap. 

ng sureties under rule. 

d in Smalley v. State, 3 Tex. Ap. 203, 204, discbargiag 

rhere bail bond varied from indictment 

26-226, FIEGZAB ▼. TWOHIO. 

Uoney Dno on Note tendered, held prayer for general relief 

ntitle to forecloHure of lien. 

uished in Morris v. Holland, 10 Tei. Ov. 475, 31 S. W. 691, 
g lien where only general prayer for relief. 
iftnnot Sign Statemeot of facta after close of term. 
d in Long v. State, 4 Tex. Ap. S5, refuging to consider 
filed after term, by agreemrrt; Hardcmyer v. Young, 1 
Civ. 60, rejecting statement not signed until after term. 



37 Tex. 227-265 NOTES ON TEXAS EEPOBTS. 



334 



37 Tex. 227-228, DAVIS V. STATE. 

In Prosecution for Theft, testimony of witnesses to altercation 
between owner's servant and thief is hearsay and inadmissible to 
show want of consent. 

Approved in Parris v. State, 43 Tex. Cr. 371, 66 S. W. 300, in 
prosecution for theft testimony by 'state's witness, to show owner's 
want of consent, that owner of property testified as prosecuting frit- 
ness at preliminary examination, is inadmissible as hearsay. 

37 Tex. 240-242, BENN ▼. 8AM0S. 

Wliere Heirs Successfully Contest Will, held estate is not liable 
for attorney's fees and costs. 

Sustained in Bonn v. Samos, 42 Tex. 106, referred to for facts in 
revising costs and receiver's account on appeaL 

37 Tex. 245-247, BOYOE ▼. WOODS. 

Codefendant Jointly Bound cannot enjoin execution sale of his 
property because of prior levy on property of another who died 
prior to sale, and because he had indemnified him to assume whole 
judgment. 
> See note, 30 L. B. A. 103. 

37 Tex. 247-256^ SMITH ▼. BUSSELL. 

Katnral MoaumentB will Control Calls for courses and distancen. 

Afirmed in Cooper v. Austin, 58 Tex. 503, and Coleman v. Smith, 
55 Tex. 260, both sustaining agreed boundary. See note, 67 Am. 
Dec. 620. 

Dietinguished in Bussell v. Hunnicutt, 70 Tex. 660, 8 S. W. 501, 
holding declarations of deceased surveyor who had not surveyed 
the ground inadmiesible; Hunnicutt v. Peyton, 102 U. S. 366, 26 
L. 120, rejecting declarations of surveyor which were not "res gestae." 

Declarations of Deceased Persons having knowledge are admissible 
to fix location of comers and lines of survey. 

See note, 94 Am. St. Bep. 678. 



37 Tez. 256-260, MAYFIELD ▼. WHEELEB. 

Notice of Acceptance of conditional future guaranty must bo 
given. 

Approved in Wilkins v. Carter, 84 Tex. 442, 19 S. W. 999, holding 
guarantor not liable where his guaranty conditioned on extension of 
time; German Savings Bank v. Drake Boofing Co., 112 Iowa, 187, 
84 Am. St. Bep. 335, 83 N. W. 961, 51 L. B. A. 758, instrument re- 
citing that to induce named bank to extend credit to named prin- 
cipal, signers guarantee bank payment of all indebtedness which may 
accrue from principal to bank within certain period, requires notice 
of acceptance to bind guarantors; Milroy v. Quinn, 69 Ind. 413, 35 
Am. Bep. 232, where general guaranty to pay, but no amount or 
date stated, held notice necessary. See notes, 98 Am. Dec. 547; 16> 
L. B. A. (n. s.) 376. 

37 Tex. 261-265, WABD ▼. NEWELL. 

Individual Liability of Partner cannot be set off against partner- 
ship demand. 
See note, 12 Am. Dec. 154. 



NOTES ON TEXAS BEPOBTS. 37 Tex. 267-310 

7-269, MAOUANUS T. OAMFBEUb 

may Acqolrs HoiiMstead aftfr jodgmenti against him. 

d in Wolfa V. Buckley, 52 Tex. 650, citing, hut not applying 
I widow acquired homestead after judgmeot by adopting 
inson y. Hughes, 117 Ind. 296, 10 Am. St. Sep. 47, 20 N. 

L. B. A. 383, where man married before property sold 
r, held exempt; Munro r. Jeter, 24 S. C. 37, suataining 

in widow and children nnder agreement to purchase, al- 
ie not executed; Nevada Bank v. Treadway, 8 Saw. 467, 
5, where declaration of homcBtead made before sale, bold- 
oid.' See note, 70 Am. Dec. 345. 

ished in State t. Bay, 3 Ind. Ap. 163, S» N, E. 439, dia- 
inioD, majority holding partner could not claim as exempt 
et apart on diRSolutioo. 

<ad mv be Enlarg«d to maximum allowed by law. 
d in W^ka t. Vaughan, 73 Ark. 174, 83 S. W. 815, foHow- 

e-272, OKATTON V. HAMILTON. 

rabnuUT, 1860, legalized regiatratioa of deed proTod in dif- 

nty, and eertifled copy of aueb deed held admiasible. 

d in Fletcher v. Ellison, 1 Poaey U. C. 686, admitting copy 

om record in Gonuilet county. 

rS-SOS, PASOHAZ. T. DANOEBFIELD. 
Owning Tnct in severalty cannot join for recovery. 
1 in Texaa etc. By. v. Pollard, 2 Tex, Ap. Civ. 428, liolding 
of husband and wife could not be attacked by general 

Eannot ba Maintained on inchoate title emanating from 

remment. 

:, 76 Am. St. Bep. 439. 

neouB.— Cited in Hardy t. Abbott, 32 Tex. Civ. 69, 73 S. 

in injunction to abate nuisance and enforce regalationa 

by owners of oil field, court could not on petition of inter- 

ler owners appoint receiver to collect waste oil and sell 

iflt of interested parties. 

I6-30S, HTTBOBISON ▼. PATNE. 

Fmstee BeceiTed Fonda for investment, he is liable for 
tiere he fails to invest after two years. 

d in White V. AfSeck, 1 Posey IT. C. 82, holding money 
ly agent and interest measure of damages for failure to 
See notes, 58 Am. Dec. 134; 65 Am. Dec. 140. 
ia Qneatlon of Fact not revisable on appeal unless dearly 

d in Lncas T. American-Hawaiian etc. Co., 16 Haw. 88, 
lay of two months after award of public contract before 
ijoin its performance as illegal not laches. 

B-310, FUOEETT T. SEED. 

Conrt cannot Seconaider its rulings after term. 

1 in Linn v. Le Compte, 47 Tex. 442, sustaining denial 

al after two days, but reversing for denying first motion 



37 Tex. 311-320 NOTES ON TEXAS EEPOBTS. 



336 



where judgment against evidence; Bryorly v. Clark, 48 Tex. 353, 
holding bill to set aside judgment not proper practice where secon*! 
motion for new trial possible; Blum v. Wettermark, 58 Tex. 127, 
holding appeal taken during term not returnable to supreme court 
until after expiration of term; Worthington v. Tuohy, 2 Tex. Ap. Civ. 
284, where default set aside during term, sustained where no abuse 
of discretion; Missouri etc. Ry. v. Houston Flour Mills Co., 2 Tex. 
Ap. Civ. 505, holding appeal bond must be filed within ten days of 
overruling motion for new trial; Metcalf v. State, 21 Tex. Ap. 174, 
17 S. W. 142, sustaining correction of judgment to make it ag^a- 
vated assault. See note, 67 Am. Dec. 654. 

Distinguished in Grisham v. State, 19 Tex. Ap. 512, holding crim- 
inal court could not set aside conviction after ordering defendant 
into custody until fine paid. 

District Court may Beconsider a previous order refusing a new 
trial, if done within the term. 

Affirmed in Hume v. John B. Hood etc. Veterans (Tex. Civ.), 69 
S. W. 643, trial court may rescind order awarding new trial, and 
reinstate judgment; Homes v. Henrietta (Tex. Civ.), 46 S. W. 872, 
court may grant a second motion for rehearing during the same 
term, although first motion was denied. 

The Discretion of District Court in granting new trials during 
term will not be reviewed on appeal. 

Beaffirmed in Belknap v. Groover (Tex. Civ.), 56 S. W. 251. 

87 Tex. Sll, WYATT ▼. McLANB. 

Heir Taking Possession Without Administration is liable to extent 
of property received, for debts of decedent. 

See note, 112 Am. St. Bep. 1023. 

87 Tex. 312-313, MILLS ▼. STUHL. 

Where Unliquidated Credits indorsed on note, it is error to render 
default judgment without jury. 

See note, 20 L. B. A. (n. s.) 30. 

87 Tex. 315-320, LEWIS ▼. PASCHAL. 

Compound Interest is not Prohibited in Texas, and may be re- 
covered where stipulated in note. 

Followed in Miner v. Paris Exchange Bank, 53 Tex. 561, sus- 
taining recovery of twelve per cent and ten per cent attorney's fees; 
Boane v. Boss, 84 Tex. 48, 19 S. W. 340, granting principal and 
ten per cent interest, and eight per cent on interest unpaid; Crider 
T. San Antonio Loan Assn., 89 Tex. 600, 35 S. W. 1048, granting 
interest at twelve per cent on principal and interest due at matur- 
ity; Yaws V. Jones (Tex. Sup.), 19 S. W. 446, agreement to pay 
compound interest is not usurious or illegal; Martin v. Land Mort- 
gage Bank, 5 Tex. Civ. 171, 23 S. W. 1035, where notes stipulated for 
twelve per cent after maturity held not usurious. See note, 46 Am. 
St. Bep. 190. 

Distinguished in Vermont Loan etc. Co. v. Hoffman, 5 Idaho, 389, 
95 Am. St. Bep. 186, 49 Pac. 318, 37 L. B. A. 509, coupon notes for 
interest of principal which by their terms draw interest after ma- 
turity, contravene statute, and no interest is recoverable; Hoyle 
V. Page, 41 Mich. 535, 2 N. W. 666, holding compound interest could 
not be recovered; Mathews v. Toogood, 23 Neb. 538, 8 Am. St. Bep. 
132, 37 N. W. 266, holding contract for interest on coupons usurious. 



NOTES ON TEXAS REPOETa 37 Tei. 320-347 

-337, ALLEN ▼. HOXBT. 

'0KUOT7 "St«t« Auytbing £1m ;oa know of beucAt to de- 

1 improper. 

in St. Louii etc. Hy. t. Whitaker, 68 Tex. 637, 5 S. 
jeetiug (rimilBr iDterrog&tory in actiaii for recDvety of 



-340, UnUJNS V. STATE. 

■t b« ft Fiandnlent and intentional taking of property. 
in Johnson v. State, 1 Tex. Ap. 120, reversing whera 
,heft insufflcient; Loza v. State, 1 Tei. Ap, 491, diamias- 
jefendant ho dnick as not to know what he waa doing; 
ite, 14 Tei. Ap. 211, where corn taken without consent 
lemeot for debt, held not theft; also Madison v. State, 
. 443, where some hogs running loose taken in belief of 

See notes, 57 Am. Dec. 274; 88 Am. St. Bep. 601. 
il Should not bo GrMit«d where there is clear absence of 
! nvceatity to eonviet. 

in State t. Howser, 12 N. D. 496, 98 N. W. 353, upholding 
w trial in prosecution for conspiracy, 
itont Forms Mateilal Part of offense, it must be proved 
lonable doabt. 

13 L. B. A. 135. 

I-S41, STATE V. TEUBMONS. 
No Appeal from a commitment for contempt. 
in Taylor v. Goodrich, 25 Tei. Civ. 126, 40 8. W. 524. s 
for contempt is not a "criminal case"; Stale v. New- 
. S21, boldiDK witness on trial for contempt not entitled 
>f venue. See notes, 12 Am. Dec. ISl; 22 Am. St. Bep. 

■bed in Ex parte Degener, 30 Tex. Ap. 574, 17 8. W. 
labeas corpus" releasing grand jury from contempt for 
it of attachment as a witness on judge during session 



:-S46, COOK T. EUOHEa 

may Baad Aniver of defendant to prove Bdmiasiona. 
)hed in Bauman v. Chambers, 91 Tei. 112, 41 S. W. 473, 
ecessary for plaintiff to read the anawer. 
cons.— Bauman v. Chambers, 91 Tei. Ill, 41 8, W. 473, 
I conflicting decisions in stating certified question, 

-347, BIOHABSSON' V. STATE. 

tuts AdnltMr, parties must live together. 

in State v. Chandler, 132 Mo. 163, 53 Am. St. Bep. 487, 

B9, holding DO adultery althougli act was frequent. See 

.m. St. Bep. 276. 

. Parks V. State, 4 Tex. Ap. 135, sustainiug adultory whera 

eated number of times. 

ei. Notes — 22 



37 Tex. 348-358 NOTES ON TEXAS EEPOETS. 



333 



S7 Tex. 34a-349, POWELL ▼. STATE. 

Eyidence That Accused was of Lower Order of mentality than 
other members of family does not require charge on law of insanity. 

See note, 10 L. B. A. (n. s.) 1001. 

I 

37 Tex. 349-351, LINTHICUM ▼. MABCH. 

Plaintiff cannot Prove Title of defendant from common source 
where defendant disclaims it. 

Distinguished in Keys t. Ma&fon, 44 Tex. 143, holding unnecessary 
for defendant to show title from sovereignty, when plaintiff averred 
common source; Burns v. Goff, 79 Tex. 239, 14 S. W. 1010, holding 
defendant could not set up disclaimer to plea of common source; 
Smith T. Davis, 18 Tex. Civ. 568, 47 S. W. 104, denying rule where 
defendants attempted to set up defective title from another source. 

37 Tex. 351-352, WADDELL ▼. WILLIAMS. 

Creditor may in One Action establish claim against debtor's estate 
and set aside debtor's fraudulent conveyance. 

See note, 23 L. B. A. (n. s.) 85. 

37 Tex. 363-354, MUKDEN ▼. STATE. 

A Beasonable Afvprehension of Danger will justify use of force. 

Approved in Cheek v. State, 4 Tex. Ap. 449, charge that killing 
must be in fear of death, held erroneous; Bichardson v. State, 7 Tex. 
Ap. 493, reversing for insufficient charge under rule. 

Verdict of Jury as to Onilt or innocence of defendant should be 
determined by the evidence, not by their belief. 

Followed in Coates v. State, 2 Tex. Ap. 18, in trial for rape hold- 
ing charge that jury might acquit on "reasonable doubt'' good; 
Smith V. State, 9 Tex. Ap. 151, reversing for erroneous charge on 
reasonable doubt; La Norris v. State, 13 Tex. Ap. 43, holding charge 
"if they believed defendant not guilty," erroneous. 

37 Tex. 354-356, WADDELL ▼. STATE. 

Mere Oarrsring of Pistol from store to home does not constitute 
offense of carrying deadly weapon. 

Approved in Mays v. State, 51 Tex. Cr. 35, 101 S. W. 234, where 
defendant merely stopped at lunch counter to eat, there was not de- 
flection from journey home to authorize conviction for carrying pistol; 
Pressler v. State, 19 Tex. Ap. 53, 53 Am. Bep. 384, reversing where 
pistol carried home from place of purchase; Bines v. State (Tex. 
Cr.), 38 S. W. 1017, where man of high character, not in habit of 
carrying firearms, carried his pistol from his home to store, to get 
cartridges, it is not sufficient to aupport conviction. See note, 25 Am. 
Bep. 656. 

Distinguished in Wilson ▼. State, 68 Ala. 42, holding defendant 
liable, although about to journey forty miles^ 

37 Tex. 357-358, STATE ▼. ANQELL. 

In Action on Ball Bond, sufficiency of indictment cannot be inquired 
into, but if the bond is defective, sureties cannot be held. 

Followed in State v. Ake, 41 Tex. 167, holding sureties where in- 
dictment for swindling was defective; Martin v. State, 16 Tex. Ap. 
267, holding sureties, where indictment waa for theft and judgment 
for swindling. 



NOTES ON TEXAS BEPOBTS. 87 Tez. 35B~3Sfl 



B-S61, BOTI.B T. STATE. 

^tmont Vndeh Dom not All^a the tbIoo of eoiu stolen is 

in H&Ttin«E t. St&te, 41 Tex. 165, where indictment 
eft of "one hunderd uid eigbtj-two dollars United Statea 
Lavarre v. State, J Ter. Ap. 887, wheie indie tment was 
hundred gold dollars"; Cadf v. Stats, i Tex. Ap. 239, 
vhore no proof of ralue of stolen bieaat-strap; State t. 
Ark. lis, 10 8. W. IS, qaaahing indictment for theft of 
<illai bills," etc. See note, 51 Am. Dec. 234. 
Bhed in Wells t. State, i Tex. Ap. S4, snstaining indiet- 
e value and denomination of monej stated; Sansburj v. 
ex. Ap. 103, sotftaiuing indictment tor theft of national 
I and treasury notes; MaJcolmson v. State, 85 Tex! Ap. 
'. 469, snstaining indictment for embezzlement of five hnn- 
s, where money eoold not ba described. 

2_S64, OABTEB T. STATE. 

[oo«7 auim In LonlsiaoA was brought into eounty where 

was laid by stranger ignorant of th« transaction, held 

not be maintained. 

shed in Sntton t. State, 16 Tex. Ap. 49Z, where stolen 
ht into state by agent of defendant, conviction affirmed, 
ins Sbonld not be Heard by the jnry until eoart has ds- 
heir admisEihility. 
It Hamlin v. State, 3B Tez. Cr. 699, 47 B. W. 659, admitting 

of defendant nnder facts; SUte v. Kelly, 28 Or. 228, 

Bep. 779, 4S Pac. 218, holding in discretion of jndga to 
y from preliminary hearing of admissibility of confession. 
73 Am. St. Bep. 944; 18 I* B. A. (n. s.) 777. 
in of Accnsed made while in eastody is inadmissible unless 
t cautioned. 
, 18 L. B. A. (n. B.) 792. 

6-368, HABVET T. STATE. 

ntness nur ha BecaUed by defendant In order to Impeach 

ny. 

in Fuller v. State, 30 Tex. Ap. 563, IT S. W. 1100, sns- 
^1 of witness; Stst« r. Bronn, 111 La. 700, 3S So. 819, 
lie where witness Tecalled wa» accused himself. 
ished in Treadway v. State, 1 Tex. Ap. 669, holding recall 
in discretion of judge. 

. Puty BecaUs Opponent's WltncM and then proponnds 
ucbing new matters not called out. on the ezaminatiOD in 
nakes the witness his own. 

rd in Hodge v. State, (Tex. Cr.), 64 8. W. 242. Approved 
. State, 49 Tex. Cr, 175, 90 8. W. 1018, where defendant's 
iBB-eiamined as to new matter, state e4Uiuot put on wit- 
mpeach ai to such new matter. 



37 Tex. 366-392 NOTES ON TEXAS EEPOETS. 



340 



37 Tex. 36&-389, WALKEB ▼. STATE. 

It iB Error for Court to charge that dying declarations are "highest 
tsstimony known." 

Approved in Black v. State, 42 Tex. 379, reversing for error in 
same charge; People v. Thomson, 145 Cal. 725, 79 Pac. 438, instruction 
assuming that declarations aro dying declarations is erroneous; 
Campbell v. State, 38 Ark. 509, refusing instruction asked by defend- 
ant as to weight of declarations; Gamer v. State, 28 Fla. 146, 147, 29 
Am. St. Bep. 247, 9 So. 843, holding statements by judge that no overt 
act was committed error, where there was some evidence to that 
effect; State v. Reed, 53 Kan. 778, 42 Am. St. Rep. 332, 37 Pac. 179, 
holding error where court instructed that statements were made in 
belief of immediate death; State v. Vansant, 80 Mo. 79, holding in- 
struction on weight of dying declaration error; also State v. Reed, 137 
Mo. 139, 38 S. W. 577, to same effect. See notes, 14 Am. St. Bep. 
43, 44; 56 L. R. A. 447. 

An "Alibi" is a Good Defense, if proven. 

Approved in State v. Crowell, 149 Mo. 396, 73 Am. St. Rep. 404, 50 
S. W. 894, reversing for instruction that alibi "well-worn defense." 

Burden of Proying Alibi is on defense. 

See note, 41 L. B. A. 530. 

Separation of Jury and reading newspaper accounts of trial will 
vitiate their verdict. 

Upheld in Early v. State, 1 Tex. Ap. 275, 28 Am. Bep. 412, grant- 
ing new trial where jury separated on account of fire; Porter ▼. 
State, 1 Tex. Ap. 400, reversing where jury separated by consent of 
parties; Hunnicutt t. State, 18 Tex. Ap. 523, reversing where jury 
permitted to read newspaper; People t. Murray, 85 Cal. 361, 24 Pac. 
669, holding newspaper article attacking jurors should have been 
admitted in support of new trial; State v. Caine, 134 Iowa, 156, 111 
N. W. 446, setting aside verdict where jurors reading newspaper ac- 
counts of trial; dissenting opinion in State t. Williams, 96 Minn. 
378, 105 N. W. 275, majority holding reading of newspaper accounts 
of trial by some of jurors not prejudicial. 

Distinguished in Williams v. State, 33 Tex. Or. 135, 47 Am. St. Bep. 
23, 25 S. W. 630, where nothing prejudicial to defendant in news- 
paper, sustaining verdict. 

Miscellaneous. — Ex parte Walker, 3 Tex. Ap. 670, 674, same case 
on habeas corpus for bail; Walker y. State, 13 Tex. Ap. 639, same 
case again on appeal. 

37 Tex. 389-392, WARD ▼. WARD. 

The Act of November, 1871, authorizing appeals from interlocutory 
judgments, is void, because it cannot be exercised under law of ap- 
peals from final judgments of district court. 

Approved in City of Paris v. Mason, 37 Tex. 451, following rule; 
Dial V. CollinE;, 40 Tex. 374, dismissing appeal from motion to over- 
rule motion for new trial; In re Henricks, 60 Kan. 807, 57 Pac. 969, 
holding act creating county court and defining jurisdiction of justice's 
courts void; School District v. Palmer, 41 Or. 488, 69 Pac. 454, under 
Sess. Laws 1899, p. 216, sec. 19, subd. 1, authorizing district boundary 
board to change boundaries when petitioned to do so in the "manner 
herein b^ciiied," and no manner of petitioning is specified, board 
cannot change boundaries; State v. West Side St. By., 146 Mo. 169, 
47 S. W. 961, holding act regulating securing of franchises void; 



NOTES ON TEXAS KEPOKTS. 37 Tex. 392-12» 

St. Paul eU. Bj., 23 Mont. 241, 58 Pac. S55, holding sec- 
i( Politi^^al Code relating to levy of school tares void, 
islied in State v. Durein, 70 Kan. 42, 80 Pac. 996, 15 L. 
i.) 903, upholding proviBionB of statute authorizing appeal 
dings in error from action of probate juilge in refusing 
irmit to sell liquor. 

1-304, BICE T. PEACOCK. 

« of Conveyance by married woman must state that ahe 

led separate and apart from husband. 

] in Smith t. Elliott, 39 Tex. 210, holding certificate de- 

lere nut stated frif« "willingly signed." See note*, il 

80; 108 Am. Bt. Bep. 569. 

^-404, 14 Am. Rep. 3S2, JONES V. KEITH, 
ire IIW7 Qraiit Bight to erect toll-bridge oyer public high- 
it eompeDEfttion to riparian owners of ferry though riparian 
operating terry at crossing. 

1 in Hudeon r. Cuero Land etc. Co., 47 Tex. 72, 26 Am. 
There had been public terry for thirty years, held no corn- 
tor toll-bridge. Bee notes, S9 L. B. A. 542; SS L. B. A. 



B-4D7, OHANBI^B T. DEATON. 
I not Liable for torts of children. 

i in Bitter ■». Thibodeauz (Tex. CIt.), 41 S. W. 493, 
ot liable for tort of son in carelessly and purposely bhoot- 
panion, where he does not permit son to use a gun, and 
owledge of the act; O'Leary v. Brooke Elevator Co., 7 
7S N. W. 922, where child led into danger by guardian, 
not recover. See notes, 74 Am. Dec. 778; 60 Am. Bep. 
a. St. Bep. 801, 802; 10 L. B. A. (n. s.) 933. 

)7-40g, WHITE ▼. GABDNEB. 

ItirrlTing Fartoer a» administrator eonverted asivts into 

e bonds, held liable for a devastavit. 

d in Scudder v. Ames, 89 Ho. 514, 14 B. W. 528, charging 

th inventory price where be took poweesion of goods. See 

m. St. Bep. 714. 

.3-420, COLE V. BOAOH. 

L Qln an not FIzttires, and may be remcved by tenant. 

1 in Uejunkin v. Dupree, 44 Tex. 501, permitting removal 

pu and mill. 

» in Bankruptcy is bar to action ot wrongful conversion. 

n Borden v. Bradvhaw, 68 Ala. 364, holding claim for in- 

■rse and wagon assets ot bankrupt; Weaver v. Voile, 68 

holding judgment against bankrupt could not be set ofE 

empt chose in action of bankrupt. 

1 to Hoko AitldA A permanent flxtnre nmst affirmatively 

, S L. B. A. 596. 

S-429, HcOBIHMIK v. OOOPEB. 

Court may B«Terse Judgment of district court and render 
lent. 



37 Tex. 429-441 NOTES ON TEXAS EEPOETS. 



342 



Followed in Pait v. McCutxshen, 43 Tex. 297, referring to cited ease 
decisive. See note, 2 L. B. A. (n. 0.) 364. 

Where Appellate Court on Beversal rendered judgment whieh was 
erroneous, lower court could not enjoin it. 
See note, 30 L. B. A. 701. 

37 Tex. 429-430, SMITH ▼. DESOHAUBAES. 

Homeetead may be Establislied on lands owned in common. 

Approved in Clements v. Lacy, 51 Tex. 161, holding where property 
capable of partition, homestead could be established; McGuire v. 
Van Pelt, 55 Ala. 361, sustaining conveyance of home&tead held in 
common; Sen tell ▼. Armor, 35 Ark. 52, where common property par- 
titioned, and homeetead established, held exempt from mortgage; 
McGrath v. Sinclair, 55 Miss. 93, sustaining homestead in partner; 
In re Swearinger, 5 Saw. 57, Fed. Gas. 13,683, following rule in 
Nevada. See notes, 63 Am. Dec. 124, 125; 12 L. B. A. 519. 

Distinguished in Smith v. Chenault, 4$ Tex. 462, holding partner 
could not aieert homestead in entire tract. 

37 Tex. 431-433, DYEK Y. DEMENT. 

In Absence of Assignment of BrroxB, appeal dismissed. 

Approved in Putnam v. Putnam, 3 Ariz. 187, 24 Pac. 322, and 
Wolfley V. Gila Biver B. I. Go., 3 Ariz. 178, 24 Pac. 257, both following 
rule. 

37 Tex. 436-437, PETEB80N ▼. JOHNSON. 

District Court is Court of Last Resort on appeal from justice's court. 
Followed in Bice v. Banbury, 41 Tex. 422. 

87 Tex. 427-489, HOLLIDAT ▼. CBOMWELL. 

Where Military Order of 1842 compelled both parties to leave 
country, defendant cannot set up the absence in support of adverse 
possession. 

Approved in Scott v. Mills, 49 Ark. 275, 4 S. W. 912, where claim- 
ant left premises after seven years, but paid taxes, held not adverse; 
Gould V. Carr, 33 Fla. 535, 15 So. 263, 24 L. B. A. 130, holding posses- 
sion lost where another person permitted to enter under writ. 

87 Tex. 439-440, BAUMGABTEK Y. SMITH. 

Vendor may Becorer Land where purchase price has not been fully 
paid. 

Followed in Webster t. Mann, 52 Tex. 425, where deed recited con- 
sideration, held vendor could not recover. See note, 107 Am. St. Bep. 
725. 

87 Tex. 440-441, STATE ▼. STAUA. 

Word "Unlawfully" cannot be Used for "knowingly," where statute 
requires the latter. 

Followed in Tynes v. State, 17 Tex. Ap. 126, holding indictment 
for "unlawfully" sending threatening letter, instead of "knowingly," 
defective; Hathaway v. State, 36 Tex. Cr. 276, 36 S. W. 470, hold- 
ing indictment against agent of trust defective for not alleging 
knowledge of conspiracy; State v. Perry, 109 Iowa, 354, 80 N. W, 401, 
where indictment for resisting officer was held insufficient. 



NOTES ON TEXAS EEP0BT3. 87 Tex. 442-483 

Z_143, TEEBELL V. STATE. 
Jnattflc&tlon of Aaunlt th&t hoaae in which it wu eom- 
Ittempting to tak« forcible poseesBion wsb proportj of da- 

, 22 L. B. A. (9. B.) 729. 

r-462, PABI8 T. MASON. 

not Tako Trinu liaad for pablie hn withont eompeuiat- 

1 in BobinBOtt v. Soothern Cal. By., 129 C»l. 11, 61 Pac. 
ig railroad for trMpais where it laid traeka before con- 
; Hull V. Chicago etc. B. B., 21 Neb. 3T5, 32 H. W. 164, 
fective eondemnatioii proceedinga no defense to trespasB; 
Cotton Press etc. Co. v. Oalvestoii Whaif Co., 3 Tex. Ap. 
oldiog compensation ahoald be in money, not benefits. See 
^m. Dec. SOT; 45 Am. Dec. S35. 

S-4S4, HOLLIMON T. GRIFFIN. 

rhere la Competent BrldaiiM to anatain petition, it ia erior 

judgment on demurper to evidence. 

1 in International etc. By. v. Davia, 17 Tez. Civ. 343, 43 

eoataining overruling demnTrer to evidence. 

cannot bs Oftiet against valae of land condemned for 

, g L. B. A. (n. a.) 820. 

t-46S, 0AI.H017N V. FACE. 

tofeadutta, Snod for Bent^ recovered damagea for failnre 
1 to repair cotton-gin, held error to allow damagea for their 
a clean cotton for others. 

i in Cheuvront v. Bee, 44 W. Va. 106, 28 8. B. 732, per- 
[lant to offset repaire to rent. 

EzitresalT fitlpnlatlng for Coin may be enforced, bnt judg- 
:oin cannot be rendered on unliquidated demand without 
palation therefor. 
, 29 L. B. A. 620, 596. 

B-47S, WAUdlCE T. HUDSON. 

Fife and Hnaband Executed Mortgage In consideration of 

of time of payment of hntband'e debt, but snit brought 

abend, held wife guarantor and discharged. 

ished in Denn; v. Seeley, 34 Or. 366, 55 Pae. 977, where 

at request of debtor, and credited, held surety not released. 

5-476, OHBISTtAN t. STATE. 

Plato] Home after purchase ia no crime. 
i in Prcaaler v. State, 19 Tex. Ap. 53, G3 Am. Bep. !tS4, 
nilej Mays v. State, 51 Tei. Cr. 35, 101 8. W. 234, where 
merely vtopped at lunch eoanter to eat, eame not deflection 
ey home, authorizing conviction for carrying pistol; Bines 
Tex. Cr.), 38 S. W, 1017, where defendant carried pistol 
sme to store to get cartridges for it, and on rfttuin showed 
al pereona, held no crime. 

}-4B3, M08EI.ET v. LEE. 

na on Suits for BecoTery of Land were suspended by stat- 

ibruary, 1863, and eoubtitution of 1S69. 



37 Tex. 483-522 NOTES ON TEXAS REPORTS. 



344 



Sustained in Wood v. Welder, 42 Tex. 409, affirming constitution- 
ality of section 43, article 12, in action of trespass; Kennedy v. Briere, 
45 Tex. 311, barring action for damages for breach of trust; Camp- 
bell V. Holt, 115 U. S. 630, 6 Sup. Ct. Rep. 214, 29 L. 487, holding 
repeal of limitations on personal debts not unconstitutional. See 
note, 45 L. R. A. 609. 

37 Tex. 483-502, MAOEE ▼. BICE. 

Where Wife Died In 1854, held husband could not file inventoix 
and sell community property under act of 1856. 

Followed in Johnson v. Burford, 39 Tex. 248, where wife died 
thirteen day& before passage of the act; Yancy t. Batte, 48 Tex. 57. 
sustaining recovery of mother's interest by heirs; Yancy v. Batte^ 
48 Tex. 76, dissenting opinion, majority affirming recovery by heirs; 
Johnson v. Harrison, 48 Tex. 266, following rule; Wright v. Doherty, 
50 Tex. 40, 41, where sale of homestead, permitting recovery, although 
guardian acted for heirs. See notes, 70 Am. Dec. 341; 73 Am. Dec- 
217; 76 Am. Dec. 80; 56 L. B. A. 74. 

If Community Property was Homesteaded at wife'v death, children 
took her community interest subject only to rights of creditors and 
husband's right to occupy homestead for life. 

See note, 56 L. R. A. 46. 

87 Tex. 503-510, QENTBT ▼. LOCKETT. 

Where There was No Judgment for value of property against surety 
on a claim bond, held he was only liable in damages. 

Approved in Bond v. Carter (Tex. Civ.), 73 S. W. 45, in suit by 
landlord against tenant for advances in which no seizure made under 
distress warrant which was issued, and judgment was merely personal,, 
failure to foreclose landlord's lien was waiver thereof; Wise v. Oif^, 
57 Tex. 515, where landlord obtained judgment for value of cotton 
seized, held lien waived. 

Where Judgment In Bight of Trial of Property was against surety 
of claimant for damages only, surety may enjoin execution against 
him for value of property. 

See note, 31 L. B. A. 63. 

37 Tex. 511-514, COBZINE ▼. MOBBISON. 

Where No Evidence of Fraud, held error to charge it. 

Approved in Campbell v. H. & T. etc. R. R., 2 Posey IT. C. 476, 
sustaining charge on actual damages only in action for death. 

37 Tex. 515-518, BiAXWELL v. McCUNE. 

Where Note Given for Bent to lessor of homestead, who assigned 
the note and went into bankruptcy, held assignee could recover. 

Su&1;ained in Gay v. Randall, 71 Ala. 473, where note not set up 
as exempt in bankruptcy court, held could not recover in state court. 

37 Tex. 519-^20, WALKEB v. YOUNO. 

Surviving Husband cannot Sell children's interest in homestead. 

Upheld in Wright v. Doherty, 50 Tex. 40, setting aside sale of wif e*a 
interest in homestead. See note, 56 L. R. A. 73, 80. 

37 Tex. 520-522, HEWETT v. THOMAS. 

Where Petition on Note amended setting up mortgage, held de- 
fendant must be served. 



NOTES ON TEXAS EBP0BT8. 37 Tex. 327-576 

in Hewitt t. Thomas, 46 Tez. 233, revereing where, on 
publication, record eontainod no Etat«n]eDt of facta. 

528, SOBUiUMlNO T. DUri'Y. 

ITlOW does not lie for «rror apparent. 
in Talbert v. Barbour, 16 Tei. Civ. 63, 40 8. W. 187, 
of review not proper for error under article 1349, Ee- 

««. See note, 76 Am. Dec. 124. 

-549, DOUaiASS ▼. VTEIL. 

ifenduits Pletd to Merita of an attachment, their gar- 
lot traverse the affidavita. 
13 Am. Dec. 341} 100 Am. Dec SIL 

UNGEB T. ANDE^KIN. 
Principal and OoBuietj not made parties to action on 

nor to allow plaintiff to diemin aa to them. 

Hooks T. BmnilettA, 1 Tez. Ap. Civ. 501, holding not 
lontinne aa to eniet}- not served. See note, 78 Am. Dec. 

.fiSe, OOLEMAN V. OOTNE. 

or InJnilctlaD cannot be diamimed in vacation. 

ia Wagner v. Edmiston, 1 Tei. Ap. Civ. 371, reaffirming 

win not be Enjcrtnad when petitioner alleges lie bad good 
>art of creditor's demand, but did not set it up at law 
;hought creditor would give bim benefit of it after jndg- 

38 L. B. A. 323; 31 L. B. A. 771, 39. 

£71, TUULEBUSYUU v. JONSa. 
t Lost by Taking "euperBedeaB" bond and appeal. 
in Semple v. Eubanks, 13 Tex. Civ. 421, 35 8. W. 610, 
not lost, where snpersedeaa taken. 
I>lan Attacbes to Prt^Mrty acquired after judgment, 
in Barron v. Thompson, 64 Tez. 238, following rule. See 
I. Dee. 240. 

-676, BELL v. SCHWABZ. 

Ensband cannot Bell children's Interest in homestead. 

n Wright V. Doherty, 50 Tex. 40, setting aside sale of 
Fe'B interest; Texas etc. Htg. Co. v. Cooper (Tex. Civ.), 
'5, arguendo. 
rvlvor In Conimunlty Homestead abandoned same, heirs 

may partition'. 

4 L. B. A. (n. s.) 799; 56 L. B. A. 70. 
of Connubial Partner, homeetead remains subject to 
omeHtead rights. 
56 L. B. A. 46. 



'rigg V. State, 49 Tex. 673, sustaining aetibn to re- 
toroev for drunkenness under aection 24 of article 
1 of 1S76. 



37 Tex. 576-594 KOTES ON TEXAS BEPOBTS. 



346 



37 Tex. 576-577, STEWABT ▼. STATE. 

A Bail Bond wmch Does not Name the offense bf accused is bad. 

Upheld in Riviere v. State, 7 Tex. Ap. 57, dismissing where recog- 
nizance omitted essen'tial part; Bryant v. State (Tex. Or.), 58 8. W. 
1022, defect in recognizance cannot be eapplied bj parol. 

37 Tex. 578-580, LOHFF ▼. GEBBCEB. 

A Deed la not Void for Uncertainty in description if evidenee of 
contemporaneous facte render it certain. 

Approved in Abercrombie v. Simmons, 71 Kan. 541, 114 Am. 8t. 
Bep. 509, 81 Pac. 210, 1 L. B. A. (n. 8.) 806, applying rule to deed 
of land for railroad right of way. 

Deed "Out of Bespect of Love" borne by donor toward donee^ ae- 
companied by possession, vests absolute title in donee. 

See note, 21 L. B. A. 694. 

37 Tex. 581-684, HABBIS ▼. CATUK. 

Administrator cannot Besdnd Contract of eale without restoring 
purchase money received. 

Approved in Clay v. Hart, 49 Tex. 436, holding error to give vendee 
interest on rescission; Harris v. Catlin, 53 Tex. 8, enforcing payment 
of purchase money by vendee's purchaser; Goddington y. Wells, 59 
Tex. 53, following rule. 

37 Tex. 589-591, GABBETT ▼. MULLEB. 

Dormaiit Partners are not Necessary Parties to suit by partnership. 

Followed in Tynburg v. Cohen, 67 Tex. 222, 2 S. W. 735, enforcing 
judgment against dormant partner; Piatt v. Iron Exchange Bank, 
83 Wis. 360, 53 N. W. 737, holding dormant partner not necessary 
plaintiff in suit for damagee. See note, 56 Am. Dec. 151. 

87 Tex. 591--593, HOWELL ▼. STATE. 

An Alteration of an Instmment that has no pecuniary value on its 
face does not constitute forgery. 

Approved in Anderson v. State, 20 Tex. Ap. 597, rever«ing where 
order for goods invalid; Baymond v. People, 2 Colo. Ap. 346, 30 
Pac. 510, where invalid warrant on treasury changed, held not forgery; 
Wilson V. State, 85 Miss. 690, 38 So. 47, under code, section 1106, it 
is not forgery to alter figures "$2.50" in corner of draft to read 
"$12.50," where words "two and 50/100 dollars" are written in body 
and words "Ten Dollars or Less" are tramped across face. See notes, 
22 Am. Dec. 316; 8 Am. St. Rep. 469. 

Distinguished in Davis v. State (Tex. Cr.), 69 S. W. 74, holding in- 
strument not complete in itself, but explanatory statements shown to 
create legal liability, is subject of forgery. 

37 Tex. 593-594, COUNTS ▼. STATE. 

A Defendant may be Convicted of willfully driving a cow from its 
accu6i;omed range under indictment for theft. 

Approved in Marshall v. State, 4 Tex. Ap. 551, following rule; 
Powell V. State, 7 Tex. Ap. 469, reversing where value of animal not 
alleged; Turner v. State, 7 Tex. Ap. 600, where facts showed cattle 
"rounded up," held error not to charge on "willful driving away"; 
Martin v. State, 9 Tex. Ap. 296, affirming conviction where court 
charged on receiving or concealing stolen animal; Vincent v. State, 



NOTES ON TEXAS BEPOBTa 87 Tex. 60S-626 

132, afSrintDg eonviction of receiving stolen hogs; Foite; 
Tex. Ap. S6, 17 S. W. 549, Buataining eonviction that 
I7 driven from accuBtomed range. 

Brown v. Stat«, IS Tex. Ap. 586, diaientiDg opinion, 
eriing conviction of receiving two stolen honea under 
t theft- 

i06, HOOBE T. OWSI£T. 

ma of AdmlnlBtrator'a Sal* call for ewA, held bid of 

he will pay Bnrplnf of hia claim ia not good. 

n Nebraska. Loan etc Co. t. Hamer, 40 Neb. 292, 68 H. 

iring rule. See note, 131 Am. St. Bep. 485, 4S2. 

(11, DATI8 T. WEUA 

bat* Court Sot Apart S«parat« PropoitF of deceased 
iatake, h«ld such order eonld not be eollaterall; attacked. 
17 Am. Dec. 698; 124 Am. St. Bep. 714. 

116, H DTo m KS T. OHAPHAN. 

.dor's Uan foreclosed against defendant who jealded In 

itj, Iield sale not void. 

1 Bonner v. Heame, 75 Tex. 252, 12 9. W. 40, aaataining 
of receiver of railroad hj eout of eonnlj where corn- 
have principal office. 

Innocent Purchaser for value nnleM consideration paid 
of prior equitiea. 

2 L. B. A. 63. 

lending Salt to foreclose vendor'ai lien is diargeable with 
notice thereof. 
2 L. B. A. 47, 60. 



)n Hota, it Is neeeasaij (o prodnee It. 

12 Am. Dee. 520. 

in Note calling for gold, jndgm»nt ma; bo rendered for 

9 L. B. A. 520, 594. 

124, JOHNSON T. BOWDEN. 

y Ono Bxecntoi Qualified, held sale hj other nnder a 

a Johnson v. Bowd«D, 43 Tex. 678, confirming sale by 
qnalifled; Hart v. Bnst, 46 Tex. 574, where both qnal- 
■ale by one void. 

chaM lIon«7 Paid and improvements made under parol 

: will be enforced. 

a Baker v. Wiwell, 17 Neb. 59, 22 N. W. 114, revoking 
nncerfcainty; Mitchell v. Nii, 1 Poiey D. C. 139, enforc- 

« of pre-empted land made before patent issued. See 

. Dee. 542; 12 L. B. A. 240. 

126, BOGEBS V. REN8HAW. 

mnot Alienate Homastead withont consent of wife, 
u Campbell v. Elliott, 52 Tex. 159, holding forced sale 
under mortgage void; Stallings v. Hullnm, 89 Tex. 434, 
holding wife entitled to entire recovery of homestead 
ithout coDfient. See note, 6Q Am. Dec 485. 



37 Tex. 626-674 NOTES ON TEXAS EEPOETS. 



848 



87 Tex. 62&-628, BOND ▼. BILL, 

Where Surviving Wife Bemarried, h«ld stepfather entitled to value 
of improvements to homestead. 

Sustained in Purrh v. Wifiston, 66 Tex. 525, 1 8. W. 529, reimbursing 
children for improvements by father; Branch v. Makeig, 9 Tex. Civ. 
403, 28 S. W. 1052, allowing for improvements to homestead by 
widow against heirs; Schwartzman v. Call (Tex. Civ.), 49 S. W. 116, 
reimbursing community for improvements made on wife's separate) 
estate; Legg v. Legg, 34 Wash. 140, 75 Pac. 133, where husband and 
wife occupied his land up to time of his death, she is entitled to 
credit for betterments they placed on land during coverture, before 
it can be divided between her and other heirs. See notes, 2 Am. Dec. 
725; 52 Am. St. Bep. Wl; 29 L. B. A. 454; 13 L. B. A. (n. s.) 517. 

One Making Improvements Under Belief that land is his own is 
entitled to compensation therefor. 

Approved in Cervantes v. Cervantes (Tex. Civ.), 76 S. W. 793, 
where, after wife's abandonment by husband,- she took' his land and 
improved same with community funds, husband, on her death, liable 
to her heirs for half cost of improvements. See note, 81 Am. St. Bep. 
168. 

37 Tex. 628-032, OILL ▼. BODOEBS. 

Motion for New Trial must be filed within two days. 

Approved in Svea Ins. Co. v. McFarland, 7 Ariz. 134, 60 Pac. 937, 
following rule; Davis v. Zumwalt, 1 Tex. Ap. Civ. 319, sustaining 
denial of motion filed after two days. See note, 67 Am. Dec. 653. 

37 Tex. 633-660, BBOWNINQ ▼. ATKINSON. 

In Establishing Boundaries, if natural calls are doubtful, calls for 
courses and distances will govern. 

. Approved in Castleman v. Pouton, 51 Tex. 88, correcting survey by 
reference to established lines and corners; Bobinson v. Doss, 53 Tex. 
507, where courses and distances most certain, followed; Jones v. 
Andrews, 62 Tex. 660, establishing survey from corners that could 
be identified; Williams v. Beckham, 6 Tex. Civ. 743, 26 S. W. 654, 
where tree unmarked, held lines could not be varied to reach it. See 
note, 129 Am. St. Bep. 993, 1007. 

37 Tex. 660-662, GOOD ▼. 8HEBMAN. 

Where Property of railroad sold under execution, held directors are 
trustees for creditors, who have priority of stockholders. 

Upheld in H. & T. etc. B. B. v. Shirley, 54 Tex. 144, holding under 
constitution of 1866 franchise of railroad could be mortgaged and sold; 
G. H. etc. B. B. v. McDonald, 53 Tex. 515, 516, holding judgment lien 
had priority over claims of stockholders. 

Where No Other Creditors Shown, held one creditor could proceed 
against trust fund. 

Followed in Galveston etc. B. B. v. Butler, 56 Tex. 512, holding 
certain creditors barred for not setting up claim with other creditors. 

37 Tex. 669-674, LA.WLE& v. YEATMAN. 

Where Suit on Note pending for ten years, and land set apart to 
widow and children, held lien could not be set up by amendment. 

Distinguished in Ball v. Hill, 48 Tex. 640, 641, sustaining action to 
enforce lien, though judgment already had on note. See note, 58 Am. 
Dec. 144. 



(0TE8 ON TEXAS EBPOBTS. 37 Tei. 674-735 
UF80N T. BELvnr. 

Aeceptad Scnlco and waived procesi, snbsequent 
lid not oust juTisdiction where guardian had not 



V. F&irfaz, 3S Tex. 223, where held negro woman 
in property at wife; State v. Wygall, 51 Tei. 
' T. Clark, res adjudicata to case at bar. See 
163. 

1 V. Mclver, 49 Tex. S64, holding mulatto woman 
homestead u wife of white; Clements v. Craw- 
holding ajtiele did not applj to white man and • 

[IJ.IASD T. HONS. 

it moat be strictlf construed. 

Blsang v. Mensing, 1 Tex. Ap. Civ. SS6, holding 
i of waggon not bound to pay twelve per cent 
See note, 55 Am. Rep. 702. 

r T. BURNS. 

applies to purchases at Kdministrstois' sales. 
Dee. 746. 

cEINNET T. NOBLE. 

; Only may Appoint by will guardian of minor 



. Dec. 631; 17 L. H. A. (n. a.) 155. 

:.ATO T. BBOD. 

ig Copies of original entries is not admissible to 

. A. 578. 

Cahn V. Salinas, i Tex. Ap. Civ. 539, reversing 

containing item of sale and deliveiy excluded, 
in the Stand, may refer to book of transcribed 

order to refresh his memory. 
!o Ice etc. Co. v, Wiggins (Tex. Civ), 32 3. W. 
ras allowed to inspect hia petition eoDtaining de- 

tbe items in questioo. 



NOTES 

ON THE 

EXAS EEPOKTS. 



CASES IN 38 TEXAS. 



I, FIATZEB T. KOBBia 

Tint Term 1b ExeniMd where drawer of bUl Ijecomei 
insolvent before flrat tenn after ite matnrit;. 
in Hunt v. Wiley, 1 Tex. Ap. Civ. 698, wh«T* maker 
lily inBolTent before first term. 

15, STATE ▼. OAXVESTOK OITT OOHPANT. 

)f Land by the repnblle of Texas i» prima fseie title, 
in Butherford v. Freneb, 2 Poeey V. C. 72S, patent is 

title. 

rr, aHOESB£OK T. OAJUFBELL. 

Timr 1b not Proper Remedy for an erroneoiu judgment. 

70 Am. Dee. 124. 

16, SESSUMS T. HENHY. 

r^ Acting as Agent or Partner pnrchues property and 
}te, all persona whom he representB are eqoally bound 

in Moore v. Boyd, 3i Tex. Civ. 411, 79 8. W. 648 (re- 
shearing), holding nndiecloaed principal in contiaot of 

is liable for unpaid purchase money. 
bed in New York Life In*. Co. v. Martindale, 75 Ean. 
:. St. Bep. 362, SS Pac. 560, person whose name does not 
lote cannot be charged as indorser by parol proof thnt 
ee in accepting and indorsing it waa acting as Mb agent 
Lg on face of note suggests ezistence of agency; Mc- 
ndBon (Tex. Civ.), 30 S. W. 4S9, holding surety of agent 
recover from principal where he is obliged to pay the 

«nylng Tbat Instraraent was executed by aothority of 
lUBt be verified by affidavit. 

in 8. A. ft A. P. By. v. Wilson, 4 Tex. Ap, Civ. 667, 19 
and City Water Works r. White, 01 Tex. 638, both re- 

titlon AllegM Defendant executed instrument sued on 
agent, though defendant's name not signed thereto, in 
(351) 



38 Tei. 45-85 NOTES ON TEXAS REP0BT8. 352 

abaeaee of pies of non est factum, burden is on defendant to abow 
1m did not autborize its execution. 
See note, 21 L, B. A. (n. •.) 1073. 

38 rCvx. <5-64, PEBiCINS V. BAKER. 

Wbera Hnsband, Wbo la MtuuginK wife'a tiott property, eon- 
tractf debts for b«neSt of the estate, wife cannot repudiate them. 

Approved in Harris v. Williams, 44 Tex, 126, reaffirming rule. 

38 TtOL 6i-«l, LBWIS t. HIOBOLS. 

Mora Provision In Will eiempting executor from bond will not 
authorize execution a gain M estate. 

Approved in Smithwick r. Kelly, 79 Tex. 572, 15 8. W. 488, re- 
affirming rule; Qray v. BuBaell, 41 Tex. Civ. 527, 91 B. W. 235, 
pro-vision in will relieving executor from giving bond does not au- 
tboTise sale by executor without order of court. 

Wliar* Ezecntoi Makes Valid CompTomlso of debt against estate 
in his individual capacity, he is subrogated thereto. 

Approved in Gray v. Oockrell, 20 Tex. Civ. 329, 49 8. W. 250, re- 
affirming mlo. 

38 Tex. 63-71, HOH£T T. DAVIS. 

Fending Appeal Involving Bl^t to Ofllco of state treasurer, party 
in whose favor the judgment of trial court was, is treasurer pro 

Approved in Flypaa v. Brown Co., 6 8. D. 639, 62 N. W. 963, re- 
affirming rule. 

38 Tex. 7&-79, LTLBS v. MUEPHT. 

Tenant In Posswaton cannot Sat Up Title in himself as against 
landlord under whom he entered. 

Approved in Allen r. Thompson, 2 Tex. Ap, Civ. 93, it is no de- 
fense that tenant attorned because landlord's attorney represented 
that title of tenant's wife was concluded by certain litigation. 8ee 
note, 120 Am. St. Bep. 57. 

Tanant in Possession PnrctaaBlng superior outstanding title before 
surrender of lease cannot resist payment of rent for term. 

See note, 89 Am. St. Bep. 97. 

38 Tex. 80, BtTBCH v. COBPOBATIOH OF BASTBOF. 

Vben Appeal Bond Falls to Show Nature of the judgment, ap- 
peal will be dismissed. 

Approved in Bradway v. Clipper, 1 Tex. Ap. Civ. 125, where bond 
misdeaeribed the judgment; In re Hubash, 9 Haw. 46, appeal bond 
failing to designate decision appealed from, and cause or court in 
which it was rendered, is insufficient. 

38 Tex. 81-86, MELTON v. TOBNEB. 

Unlnteirupted Peaceable POBsessltm for ten years gives possessor 
title to six hundred and forty acres without any evidence of title. 

Approved in Craig v, Cartwright, 65 Tei. 424, reaffirming rule. 

Becord In County Wbere Land It Situated is notice notwithstand- 
ing that upon subsequent diviaion of the county portion of land is 

Approved in Lumpkin v. Muncey, 66 Tex. 312, 17 S. W. 733, re- 
affirming rule. 



NOTES ON TEXAS HEP0HT8. 38 Tex. 85-112 

OUSTOH ETO. BT. 00. v. MITCHELL. 
Jontiact in Wilting to deliver hay "not to exceei 
.8," payment to be on delivery of de si go a ted in- 
>e avoided by either party by giving notice. 
iobiUBOn ete. Min. Co. v. Johuaon, 13 Colo. 281, 22 
. A. 769, Campbell v. Lambert, 36 La. Ann. 37, 51 

American etc. OU Co. v. Kirk, 68 Fed. 794, all re- 
antaello ft Co. v. Otto F. Lange Co., S5 Fed. 722, 
^r manufacturer to aell in future to defendant as 

brand aa be migbt deaire and to continue to do 
brand, as long aa defendant cared to carry them, 
BBt Transp. Co. t. Eansas City etc. Co., 114 Fed. 
iciple to contract for boltaj Fowler Utilitiea Co. v. 

120 Am. St. Eep. Eep. 344, 79 N. E. 898, 7 L. E. A. 
ying injunction to prevent breach of -contract to 
building at apecifled rate per year aa long aa de- 

aa contract ia void for want of mutuality; Blisa 

Norrit, 129 Mich. 13, 87 N. W. 1042, where, in re- 
ETa order for gooda to be manufactnrad, defendant 
d not guarantee aa to time, there ia no contract to 
ne mentioned. See note, 15 L. R. A. 219. 
n Moran Bolt ete. Co. v. St. Louia Car Co., 210 Mo. 
2, wbere written order for gooda waa "enter order 
.1 iron" at price apecifled, "speciflcationa to be fur- 
ear," which waa accepted in writing, refusal of 
and accept good* a» per order ia breach of con- 



CHBIMFF T. SETTEaAST. 

Uildren of Man declaring intention, but dying be- 
rtiflcate of citizenship, coming to Texas before at- 
become citizena on attaining majority, 
e Di Simone, 108 Fed. S44. 

KEMP T. STATE. 

tra Aitlela 3046, Paachal'a Digeat, of teatimony at 

aigumeat io criminal case, will not be reviewed 
if diacretion. 

'readwaj v. State, 1 Tex. Ap. 670, Oarza t. State, 
Bam y. State, 4 Ap. 673, McMillan v. State, 7 Tex. 
;er v. State, 7 Tex. Ap. 321, and Nolen v. State, 14 

reaffirming rule. 
KM D«fecidant's Acknowledgment to inspector that 
>f aale for cattle, and Ma turning them loose, to- 
tition of aame occurrence in another county, is suffi- 
rant of consent of the cattle owner in absence of 

n Caddell v. SUte, 49 Tex. Cr. 134, 122 Am. St. 
W. 1014, in burglary where ownership of house and 
different persona, and record doea not abow one of 
stand did not teatify as to want of Consent, such 
; Wiadom v. State, 42 Tex. Cr. S80, 61 3. W. 926, 
lence was attainable. 
»te«~33 



n 






38 Tex. 116-154 NOTES ON TEXAS KEPORTS. 



354 



88 Tex. 116-125, STATE ▼. BBEMOND. 

Where Law Authorizing Tax makes no provision from what source 
it is to be derived, it should be levied on all property subject to gen- 
eral taxation. 

Approved in Willis v. Owen, 43 Tex. 48, 71, reaffirming rule. 

38 Tex. 125-128, MUNNEBLYN ▼. ALEXANDER. 

Owner of Property Wrongfully Seized under attachment is en- 
titled to the damages sustained by deprivation of its use. 

Approved in Haverly v. Elliott, 39 Neb. 207, 57 N. W. 1011, plain- 
tiff is entitled to recover loss sustained by suspension of business 
during defendant's wrongful possession; Donahoo v. Scott (Tex. 
Civ.), 30" S. W. '386, damages for loss of milk from wounded cows 
while recovering are recoverable in suit for malicious wounding of 
them. See valuable note on damages for wrongful or malicious at- 
tachment in Tisdale v. Major, 68 Am. St. Bep. 269. 

38 Tex. 128-132, BASS ▼. HAYS. 

Undetermined Motion for New Trial is discharged by adjournment 
of the term of court. 

Approved in Carter v. Commissioners, 75 Tex. 286, 12 S. W. 986, 
reaffirming rule; James v. Appel, 192 U. S. 135, 24 Sup. Ct. Rep. 
222, 48 L. 379, under Arizona stalMtcc motion for new trial is deemed 
overruled at end of term though continued to another term by or- 
der in chambers made by judge who tried cause. 

After Term Court Loses Control over its final judgments, and has 
no power to vacate same, except by original proceeding for that pur- 
pose on equitable grounds. 

Approved in Roan v. State (Tex. Cr.), 65 S. W. 1069, failure to 
give notice of appeal in death penalty cases during the term for- 
feits right of appeal. 

38 Tex. 132-135, STEOOP ▼. McKENZIE. 

Apparent Principals to an Obligation, in order to show suretyship, 
must allege and prove that payee had knowledge of suretyship rela- 
tion. 

Reaffirmed in Coffin v. Loomis (Tex. Civ.), 41 S. W. 511. See note, 
17 Am. Dec. 416. 

38 Tex. 139-148, GBEOG ▼. ENGLISH. 

Where Time is not of Essence of Contract for sale of land, mere 
failure to pay purchase money is not such repudiation entitling ven- 
dor to recover the land. 

Approved in Morris v. Dun<*an (Tex. Civ.), 25 S. W. 48, and Frink 
v. Thomas, 20 Or. 270, 25 Pac. 719, 12 L. R. A. 239, both reaffirm- 
ing rule. See note, 30 L. R. A. 65. 

Vendor in Executory Sale should tender deed and demand pur- 
chase money before suing for recovery of the land. 

Approved in Kauffman v. Brown, 83 Tex. 48, 18 S. W. 428, reaffirm- 
ing rule. See note, 107 Am. St. Rep. 725, 728. 

38 Tex. 148-154, ADBIANCE ▼. CREWS. 

Court Should not Leave Jury to determine whether settlement be 
full and final between parties unless there be some evidence of fraud 
or mistake. 



NOTES ON TEXAS REPOBTS. 38 Tei. 155-173 

Taylor v. Taylor (Ter. Civ.), 54 S. W. 1049, whera 
i«n father sod his children was sustained, although 
. thau his share. 

— Adriance v. Crews, 45 Tex. 183, cited arguendo in 
r appeal of same case. 



jnt eanoot be estimated at 

. B. A. 759. 

ORACE ▼. aABNEII. 

nd FUce of Pnbllc Sila are prescribed bj lair, sale 

rise than as prescribed i» void. 

Sinclair v. Stanley, S4 Tex. 72, and Anniston etc. 

ml, lOe Ala. 331, 54 Am. St. Bep. S2, IS So. 112, 

rule. See note, 33 L. B. A. 9i. 

dered In 1861 is not invalid because rendered subae- 

ay law. 

km. Dec. 511. 

—Cited in Johnson v. Claldwell, 38 Tex. 219, where 

and at sberilTs sale made after return day when no 

las issued, he need not restore property till reim- 

KAI8E V. lAWSON. 
irents Immigrated to TexM and lived ai man and 

prima facie heinhip of their cbtldren. 
.m. Dee. £11. 

not ba Berersed, thongh charge be erroneous, un- 

that the verdict naa affected by such erroneous 

Texas etc. B. Co. t. Anderson (Tex. Civ.), 61 8. 



UAXWELL T. STATE, 
ig Carrying of DeMUjr VTmfoaa does not prohibit 
I in buggies upon public bighwaya from carrying 

hides. 

Davis V. State, 45 Ark. 361, where defendant waa 
eyond circle of his neighbort, and not within routine 
inesa, he was on a journey. See note, 23 L. B. A. 

in Darby v. State, 23 Tex. Ap. 40S, 5 S. W. 9i, 
; was going from his home to the county seat, in 
i intended to return next day. 
I not OoillpeU«d to lock his arms in bis trunk or 

in Lewis v. State, 2 Tex. Ap. 26, where defendant 
. in hia hand. 

UAXWELL V. STATE. 
Falling to Bind DafaUUnt to appear before any 

or place to abide judgment of supreme court does 
te court juriBdiction. 
lDI. St. Bep. 198, 



38 Tex. 173-202 NOTES ON TEXAS REPORTS. 



356 



38 Tex. 173-181, WHEELEB ▼. STATE. 

Fact That Principal, after conviction of another crime, escaped 
from sheriff while on way to jail to await judgment, is no answer 
to scire facias on bail bond for previons offense. 

Approved in State v. Crosby, 114 Ala. 14, 22 So. Ill, and Ha via 
V. State, 62 Ark. 507, 37 S. W. 959, both reaffirming role. See note, 
99 Am. Dec. 220. 

Retention of Defendant After Ocmvictlon is answer to scire facias 
on forfeited bail bond. 

Distinguished in Talley v. State, 44 Tex. Gr. 163, 69 S. W. 514, 
surrender by sureties of principal in recognizance on appeal ia no 
defense to forfeiture of bond. 

38 Tex. 181-186, OUSHMAN ▼. STATE. 

Scire Facias on Forfeited Bail Bond should describe the bond, 
showing when, where, and by what authority it was taken. 

Approved in Gowen v. State, 3 Tex. Ap. 381, reaffirming rule. See 
note, 122 Am. St. Rep. 96. 

38 Tex. 189-190, STATE ▼. OOLUKS. 

An Indictment Oharging Defendant with unlawfully obstructing 
a certain described public road by force and arms, by erecting a 
fence across the same, is sufficient. 

Approved in State v. PuUen, 43 Mo. Ap. 622, reaffirming rule. 

38 Tex. 190-192, HICKMAN ▼. STATE. 

On Issue of Insanity nonprofessional witness should not be al- 
lowed to give opinion, but should be confined to statements of 
demonstrations of the person. 

See note, 38 L. R. A. 726. 

Miscellaneous. — Gitation in 43 Mo. Ap. 622, is error for 38 Tex. 
189. 

38 Tex. 195-197, McKINNEY ▼. NOBLE. 

Mother Having Custody of Children under divorce decree cannot 
by will deprive father of guardianship of their persons. 

See note, 38 L. R. A. 195. 

38 Tex. 199-202, AIJiISON ▼. BBOOKSHIBE. 

Exemption of "Horses" from Forced Sale in the statute includes 
"mules." 

Approved in Robinson v. Robertson, 2 Tex. Ap. Giv. 194, hold- 
ing jackass is a horse for exemption purposes. See notes, 45 Am. 
Dec. 253, 255. 

An Execution Without a Judgment to support it is absolutely null 
and void. 

See note, 73 Am. Dec. 211. 

Statutes Ex6nii»ting Certain Property from forced sale should be 
liberally construed so as to meet the objects intended by the legis- 
lature. 

Approved in Haas v. Shaw, 91 Ind. 394, and Butner t. Bowser, 
104 Ind. 259, 3 N. E. 892, both reaffirming rule; Betz v. Maier, 12 
Tex. Giv. 221, 33 S. W. 711, holding iron safe of insurance agent 
to be included among tools and apparatus exempt; Kelley t. Mc- 
Fadden, 80 Ind. 538, holding unmarried man who, with a hired 
servant, occupies a house to be a householder; In re Smith, 96 Fed. 



S ON TEXAS BEP0BT8. 3S Tex. 305-229 

d aod Uttf dolUr diUDDBd Btnd exempt u 
litDalljr worn to futen the ahirt. 

▼. JONSS. 

V Tendsr to witnes* of Job feei npon appli- 
n kcconut of hig absence. 
I. Co. T. H^att, 54 Tex. 216, wheie it was 
ral nile that spplieatiDn should show tender 

T. MASON. 

1870, admin Utration could not be granted 
!rom death of intestate. 
439. 

Iridge, 98 Tex. 534, SB S. W. 10, admiDiitra- 
n Bled four jean alter death i* not void. 

' V. BUKLEBON. 

pacified Amount "in a good, BolTont, cash 
re to deliver the iitecifled note within rea- 
. demand for the amount. 

424, 425; 3 L. B. A. 50. 

TB EXEOVTOB ▼. UcKENZIE. 

lug Dne prior to end of war, mied aecond 

1, ij liable when good reaeon ihown for not 

(n. a.) 518. 

ON T. aAij>mii;L. 

Baal Estate at sherilTa sale after term to 

oable aeqniNe no title, etiU, in abeence of 

reimbunement before reitoration. 

r, Qrenet, S7 Tex. 281, Galveston etc. Ry. 

1, 11 8. W. 174, Ealsey v. Jonea, SO Tex. 

) T. Crawford, 1 Posey IT. C. 612, Terry v. 
23 B. W. 541, and Stepbenson v. Marsalis,' 
W. 388, all reaiBrming role. See notes, 76 

. 41. 

:T8 T. FBISBT. 

t^ HtulMnd for ose of wife, eonsideratioD 
ve with him, is not enforceable. 
V. Peaslee, 146 Mass. 462, 4 Am. St. Bep. 
Lesler's Estate, 143 Pa, 407, 24 Am. St. Bep. 
R. A. 581, both reaffirming mle. See notes, 

B. A. 412. 
ting opinion in Uerrill v. Peaslee, 146 Uass. 

16 N. E. 275, majority holding money con- 
if wife to lire with husband after cause for 



IN -r. WAUJS. 

U» Against FartnersUp Pisperty for aepa- 
r as long aa ho ia indebted to firm, or firm 



II 



38 Tex. 230-253 NOTES ON TEXAS BEPOETS. 



358 



Distinguished in De Forest r. Miller, 42 Tex. 37, 38, holding in- 
terest of partner may be sold under execution, subject to rights 
of third parties. 

Overruled in Longcope ▼. Bruce, 44 Tex. 437, holding partnership 
goods may be seized, and share of partner sold under execution 
for such partner's separate debt. 

Miscellaneous. — ^Warren v. Wallis, 42 Tex. 474, cited arguendo in 
referring to former appeal of same case. 

38 Tex. 230-234, MERCHANTS' INS. CO. ▼. BBOWEB. 

Stock in a Oorporation not Being Subject to attachment forms no 
basis for suit against a nonresident. 

Approved in Armendiaz y. Serna, 40 Tex. 303, where nonresident 
defendant had no property in the state. 

38 Tex. 234-237, CHRISTIAN ▼, BUNKER. 

Portable Steam-engine is not subject to sale under trust deed, made 
by vendee, until its purchase price is paid. 

Approved in Sanders ▼. Keber, 28 Ohio St. 640, reaffirming role. 

38 Tex. 237-241, BALL ▼. HILL. 

Mere Possession of Non-negotiable Note without written assign- 
ment is not evidence of ownership. 

See note, 70 Am. Dec. 330. 

38 Tex. 241-245, THOMPSON ▼. BOHANNON. 

Judgment Based on Contract payable on its face in Confederate 
bills is void, and may be enjoined. 

Approved in Wofford v. Booker, 10 Tex. Cir. 175, 30 S. W. 69, 
where petition shows that certain party was not a party defend- 
ant in the action, judgment against him is void. See notes, 31 L. 
R. A. 759; 30 L. B. A. 702. 

Action on Note Payable to Plaintiif individually not joinable with 
cause on note payable to him in fiduciary capacity. 
. Approved in First Nat. Bank v. Valenta, 33 Tex. Civ. Ill, 75 S. 
W. 1087, action for debt against one as surviving wife cannot be 
joined with action in tort against her for conversion of proceeds of 
husband's life policy. 

Executory Contract of Executor payable in Confederate money is 
enforceable, but defendant may reduce recovery to actual value of con- 
sideration of obligation sued on. 

Approved in Shearon v. Henderson, 38 Tex. 249, 250, following 
rule. 

38 Tex. 245-253, SHEARON ▼. HENDERSON. 

Administrator or Person Suing in Fiduciary Capacity may recover 
value of consideration in obligation payable on its face in Con- 
federate money. 

See note, 98 Am. Dec. 553. 

A Debt Barred by Limitations, if adequate in amount and trans- 
action is in good faith, may form consideration for conveyance of 
property. 

Approved in Burnham v. McMichael, 6 Tex. Civ. 499, 26 S. W. 
888, reaffirming rule. See notes, 14 Am. St. Bep. 740; 36 L. B. A. 
344. 



NOTES ON TEXAS BEPOBTS. 3S Tex. 253-2W 

25S-275, PLANTEBS- MWT. mS. 00. T. LTONS. 

mm luu Actiud Knowledga of other insurance on the risk 

ime it iBBues its palicy, it will be estopped from setting op 

b insurance was not indorsed on tbe polief. 

ved in Liverpool etc. Ins. Co. v. Ende, 65 Tex. 124, Mor- 

InsnrsDce Co., 6S Tex. 361, 5 Am. St. Rep. 66, 6 S. W. 
ernia Ins. Co. v. Malevinaky, 6 Tei. Civ. 86, 24 S. W. 806, 
I etc. Ins. Co. t. McLemore etc. Loan Agencj, T Tez. Civ. 
S. W. 929, Alabama Mut. Assur. Co. v. Long Clothing etc. 

AIb. 676, 26 So. 658, Farnum v.' Phoenix lue. Co., 83 Cal. 
Am. St. Bep. 244, 23 Pac. 873, Bivara v. Queen's Ins. Co., 

729, Liverpool etc. Ina. Co. v. Sheffy, 71 Miss. 926, 16 So. 
Istrake v. Cumberland Ins. Co., 44 N. J. L. 300, Osborne v. 
[na. Co., 23 Utah, 435, 64 Pao. 1104, Kahn v. Traders' Ins. 
Jjo. 462, 62 Am. St. Rep. 70, 34 Pac. 1072, and Fireman's 

Co. T. Norwood, 69 Fed. 78, all reaffirming rule; Swedish 

Co. y, KnutHon, 67 Kan. 74, lOO Am. Bt. Rep. 382, 72 Pae. 
vision of mutual 9ie policT- that procuring of additional 
e shall avoid policj unless written consent of company in- 
in policj is waived by company's failure to caoeel policy 
se consent within reasonable time after notice of other in- 

Phoenix Assurance Co. r. Coffman, 10 Tex. Civ. 635, 32 S. 

where insurance company were notified by owner of eiist- 
lien, and did not cancel policy; dissenting opinion in Fire- 
tc. Ins. Co. V. Norwood, 69 Fed, 82, majority reaffirming 
le notes, 59 Am. Dec. 146; 64 Am. Dee. 221; 20 Am. Rep. 
Am. Rep. 371; 107 Am. St. Rep. 149, 

Llmltatloiu oa Antboilty ol Agant are Dot binding on in- 

Its, 2 L. R. A, S24. 

!76-284, TENDIOE V. EVETTS. 

DBtmlng a WUl, tbe object, design, or purpose of teatator 

e ascertained by reason and consistency. 

ved in Weller v. Weller, 22 Tex. Cir. 250, 54 8. W. 654, 

rst clause vests fee title in devisee, and succeeding clause 

ie to life interest, the former will prevail where such in- 

Is manifest. 

laneons. — Evetts T. Tendiek, 44 Tex. 570, subsequent phase 



Z84^287, OOOK V. OABSON. 

laneoas. — Carson v. Cock, 50 Tex. 326, subsequent phas 



287-290, LTEHSEOKEB T. MABTIN. 

rendant DIm Befors Oltatloa has been served on him, it is 

r to serve citation and copy of petition on admiaistrator, 

lias not being suffleient. 
te, 50 Am. St. Rep. 742. 
Is not Besponslble for not making money on as execution, 
) was required to make a levy when in his power and failed 



ite, 95 Am. Dec. 441. 



38 Tex. 291-372 NOTES ON TEXAS REPORTS. 



360 



38 Tex. 291-296, OALLAGHEB ▼. BENNETT. 

Where Insolvent Landlord fraudulently obtains the lease, tenant 
may, while in possessiony purchase superior title in order to prevent 
eviction. 

Approved in Texas Land Co. v. Turman, 53 Tex. 622, and Cockett 
V. Althouse, 35 Mo. Ap. 412, both reaffirming rule. See note, 60 Am. 
Dec. 222. 

38 Tex. 296-301, NIXON ▼. ABMSTRONO. 

A Will Where Attesting Witnesses are interested is only void as 
to the legacies to such witnesses. 

Approved in Fowler v. Stagner, 55 Tex. 399, reaffirming rule. See 
note, 77 Am. St. Rep. 463, 466, 467. 

The Statutory Attestation of a Will by two or more credible wit- 
nesses means competent witnesses. 

Approved in Fowler v. Stagner, 55 Tex. 397, and Gamble v. But- 
chee, 87 Tex. 645, 30 S. W. 862, both reaffirming rule; Thomas ▼. 
State, 14 Tex. Ap. 72, construing "credible person" to mean a com- 
petent, as well as a credible, witness. 

38 Tex. 312-314, DUBLE ▼. BATTS. 

An Offer and Acceptance by Telegram, when acted on, form a con- 
tract under terms of the telegrams. 

Approved in Whaley v. Hinchman, 22 Mo. Ap. 486, reaffirming 
rule. 

38 Tex. 314-321, McOOBMIOK ▼. BUSH. 

An Agent or Trustee cannot Delegate his authority without an ex- 
press power to that effect. 

Approved in Bancroft v. Scribner, 72 Fed. 991, reaffirming rule; 
Tynan v. Dullnig (Tex. Civ.), 25 S. W. 466, authority to sell land 
does not empower agent to appoint subagent. See note^ 81 Am. Dec. 
777. 

38 Tex. 321-344, FBEDEBIOK ▼. HAMILTON. 

Article 10, Section 2, of the Constitution of 1869, declaring all 

surveys not returned to general land office in accordance with act 

of 1852, null and void, presents a rule of decision for such loca- 
tions. 

Approved in Jones ▼. Lee, 86 Tex. 34, 22 S. W. 391, reaffirming 
rule. 

Possession for Statntory Period is unavailable unless possessor has 
color of title. 

See note, 15 L. R. A. (n. s.) 1224. 

38 Tex. 344-372, EX PARTE BUST. 

Where a Person Is Charged With Contempt of Court not committed 
in presence of the court, no final punishment should be assessed un- 
til cited to show cause. 

Approved in Ex parte Kilgore, 3 Tex. Ap. 253, State v. Judges 
Civil District Ct., 32 La. Ann. 1262, State ▼. Clancy, 24 Mont. 364, 
61 Pac. 989, Ex parte Mason, 16 Mo. Ap. 44, and State v. Horner 
16 Mo. Ap. 195, all reaffirming rule; Campbell v. Chandler, 37 Tex. 
33, applying rule to judgment rendered in civil action. See note, 
10 li. B. A. (n. s.) 1099. 



NOTES ON TEXAS BBP0ET8. 38 lex. 382-416 

District Oomt impofling flne tot contempt. Tendered 
. tbe coQTt held no tessioD, is void. 
Ez parte Ellis, 37 Tex. Ct. 542, 66 Am. St. Bep. 834, 
reaffiiming mie.'. 

4, HAST T. STATE. 

ta Indictment, of fiasl letter to n&me of "Penans," 
nlted, is not sueti change in name aa vitiates the in- 

Bird V. State, 16 Tex. Ap. 531, where owner of etolen 
IB well known by name of "Sam McCassling" as hii 
m McCssland" the change is imniaterial; AtkioBOn v. 

Cr. 428, 30 S. W. 1065, reaffirmed where the word 

mbstituted for "intent" in an indictment; Si^ott v. 
. 205, 30 N. E. 330, construing the word "attempt" to 
," in an indictment. 

amity of Aaaanlt with "attempt to murder" ift euf- 
in indictment for assault with inteat to murder. 

Taylor v. State, 44 Tei. Cr. 155, 69 8. W. 149, in- 
ttempt to rape charging it was made l>y assault and 
; attempt made to ravish female is insufficient; State 
N. D. 125, 72 N. W. 929, verdict charging defendant 
ind battery with a sharp and dangerous weapon, with 
odily harm," is sufficient to sustain a judgment. 
1 in Taylor v. State, 5 Tex. Ap. 571, where jury found 
Ity." 

6, SCOTT T. ATCHISON. 

t Note Payable Two Tears After treat}' of peace be- 

States and Confederate states is not void- 

igbt T. UcBeynolds, 37 Tex. 209, following rule. 

B. — AtehesoD t. Scott, 51 Tex. 221, another phase of 

0, TABBOBO Y. BBEWSTEB. 

rt baa Ho Authority to order sale of homestead where 
iving family. 
OriffiD T. Harris, 39 Tei. Civ. 5B0, 88 8. W. 495, fol- 
randon v. Jensen, 74 Neb. 572, 104 N. W. 1056, home- 
value than $2,000 cannot be sold at administrator's 
r of probate court authorizing such sale is void; Mc- 
t, 47 Ark. 454, 2 B. W. 74, holding order of sale of 
to be a nullity where proceedings show tbe land to be 

6, HCMILI.AN r. WABNEB. 

I WM Abandonment of Homestead with fixed intentioD 
it may be sabjected to demands of creditors. 
Williama v. Moody, 35 Minn. 281, 28 N. W. 511, re- 
See notes, 60 Am. Dec. 608; 11 L. E. A. 705. 
(vner has Been Absent for an indefinite period from 
B not establisb abandonment unless accompanied with 
t not to return. 

Euper V. Alkire, 37 Ark. 285, reaffirming mle; Will- 
y, 35 Minn. 282, 28 N. W. 511, homestead may be 
hont any writing to tliat effect; Kimball y. Salisbury, 



38 Tex. 416-445 NOTES ON TEXAS REPORTS. 



362 



17 Utah, 395, 53 Pac. 1040, where owner continued absent from 
homestead for a year at a time on business, but with intent to re- 
turn; dissenting opinion in Andrus v. Davis, 99 Tex. 306, 89 S. W. 
774, majority holding where school, land awarded to purchaser as 
actual settler and after settlement and improvement, she left for 
eight months to attend normal school, abandonment shown. See 
notes, 40 Am. Dec. 465; 60 Am. Dec. 611; 70 Am. Dec. 374. 

Sworn Statement of Owner that he did not intend to abandon 
homestead, if credible, is prima facie evidence thereof. 

Approved in Cox ▼. Harvey, 1 Posey U. C. 276, reaffirming rule; 
Garden v. Short (Tex. Civ.), 31 S. W.'248, where husband and wife 
make affidavit in procuring loan that property other than that 
mortgaged is their homestead, they are estopped from disproving it. 

88 Tex. 416-423, COiiABK ▼. NOLAN. 

At Death of Wife, title to one-half of homestead vests in children 
of their marriage. 

Approved in Wright v. Doherty, 50 Tex. 40, reaffirming rule. See 
notes, 73 Am. Dec. 217; 76 Am. Dec. 80; 56 L. R. A. 46, 73. 

In Changing a Bural into a Town Homestead, the lots not used 
as a home, but merely for speculative purposes, become community 
property. 

See note, 70 Am. Dec. 352. 

Distinguished in Iken v. Olenick, 42 Tex. 202, qualifying the lim- 
its and uses of the homestead. 

The Legislature cannot by the Incorporation of a city, or other- 
wise, change, restrict, or control a homestead without consent of the 
owner. 

Approved in Barber v. Rorabeck, 36 Mich. 401, reaffirming rule. 
See note, 70 Am. Dec. 353. 

Distinguished in Waggoner v. Haskell, 13 Tex. Civ. 631, 35 S. W. 
712, where owner consented to the dedication of the streets through 
his homestead and its use as urban property. 

88 Tex. 425-428, ARNOLD v. ADAMS. 

Extension of Boundaries of a Town so as to include a rural home- 
stead does not change it from a rural to a town homestead. 

Approved in Barber v. Rorabeck, 36 Mich. 401, and Galligher v. 
Smiley, 28 Neb. 195, 26 Am. St. Rep. 324, 44 N. W. 189, both reaf- 
firming rule. See note, 87 Am. Dec. 467. 

Erection of Houses for Bent or other purposes does not subject a 
rural homestead to forced sale. 

See note, 70 Am. Dec. 351. 

Distinguished in Ashton v. Ingle, 20 Kan. 679, 27 Am. Rep. 201, 
where rented houses were held part of the homestead. 

Miscellaneous. — Chambers v. Perry, 47 Ark. 403, 1 S. W. 701, cited 
arguendo, noting conflict of authorities. 

88 Tex. 429-445, JORDAN ▼. PEAK. 

A Deed of Trust by Husband and Wife is such a "conveyance'* 
contemplated by article 1003, Paschal's Digest. 

Approved in Hall v. Dotson, 55 Tex. 524, 525, reaffirming rule. 
See note, 51 Am. Dec. 768. 

Husband and Wife may by Deed of Trust legally encumber the 
homestead to secure payment of a debt. 



NOTES ON TEXAS REP0ET8. 38 Tex. 445-458 

hodM V. Gibbs, 39 Tex. 446, applying rule to en- 
te't separate' property for huEbaud'a debts; Moran 
i^a. 368, S Am. St. B«p. 74, 4 S. E. 309, resffinning 
I eoDStitntional or atatutoij prohibition. See notes, 

62 Am. Dec. 550. 

Q Arto V. Maydole, 54 Tex. 246, where trust deed 
lent to coDStitutioD of 1876. 

» a«le by K TnutM under deed of trust by bus- 

the homestead is not a forced sale. 
:oran v. Clark, 30 W. Va. 374, 8 Am. St. Bep. 80, 
rming rale; Qoldfrank v. Young, 64 Tex. 437, hold- 
it to apply to Bale proceediugB under deed of truet. 

Dee. 4S3. 
n Black v. Bockmore, 60 Tex. 9S, where the sale 
leath of husband; Lacy v. Boiling, 74 Tex. S6S, 12 
tied man may encumber bomeatead with mortgage, 
not ba Bonnd by it Slortsago, which needs to be 

iga T. Cain, 65 Tex 78, 78, under constitution of 
ea could not be foreclosed by' foieed sale. 

BIOHABDS ▼. NEIdtS. 

Talaa of City Homeotead, where it is sought to ex- 

nprovementa most be included in its valuation. 

t. Louis etc. Assn. v. Walker, 23 Tex. Civ. 8, 54 

ike V. Boulware, 12 Tex. Civ. 662, 35 S. W. 25, botb 

Bee note, 44 L. B. A. 402. 

BATLOB T. SAN ANTONIO NATIONAL BANE, 
lad Dodlcated under former law, but has increated 
exceed amount i 
still protected a 
B. A. 402. 

UAIrfSNE T. KAtTFHAN. 

07 to Beltevo Homestaad from vendor's lien, who 

e notes for loan and deed of trust for security, is 

igated to vendor's lien. 

aylord v. Loughridge, 50 Tex. 578, and Panoill v. 

r. C. 100, botb reaffirming rule; Buhl v. EauCFmBn, 

re property was purchased with money loaned for 

: with no express lien for money so loaned. See 

c. 575, 576; 45 Am. St. Bep. 385, 386; 86 Am. St. 

n Flanagan v. Cushman, 48 Tei. 245, where pur- 
QOt paid and payee of new note was subrogated 
; Joiner v. Perkins, 59 Tex 303, holding that where 
96 money given to vendor's creditors at vendor's 
ewed, Ruch creditor was subrogated; State v. Ora- 
500, holding that transfer of purchase money note 
vendor's lien. 

licks T. Morris, 57 Tex. 664, subrogating lender, 
ney to pay purchase money, to vendor's lien. 



; Tex. 458-487 NOTES ON TEXAS REPORTS. 364 

: Tex. 458-474, BENTINOE ▼. FRANKUN & OAI.VEBTON OITT 

CO. 
Statutes of UmitaUon do not confer a veeted right. 
Approved in Lewis y, Davidson, 51 Tei. 257, and Campbell v. 
Dlt, lis U. 8. 630, 6 Sup. Ct. Rep. 214, 29 L. R. A. 487, both re- 
arming rale. See notea, 11 Am. Dec. 534; 95 Am. St. Rep. 659; 45 

R. A. 610. 

DistiDguiBhed in Board of Education v. Blodgett, 15S El. 448, Jfi 
n. St. Rep. 353, 40 N. B. 1027, 31 L. R. A. 70, holding right to set 
I bar of limitations ia a vested right. 

It Is Oompeteut for the Toofit, in adopting their organic law, to 
dare a Buspension of the statute of limitationa. 
Approved in Wood v. Welder, 12 Tex. 409, and Grigsby v. Peak, 

Tex. 151, both reaffirming rule. See note, SO Am. Dec. 391, 393. 
Land IiawB OonferrlnjC TlUo b; prescription are statutes of limita- 
)n, and coma within principle of section 43, article 12, of eonstita- 

Approved in Kennedy v. Briere, 45 Tex. 311, reaffirming rule. 
Tbere ia No Iiaw prohibiting champerty in Texas. 
ApprovBd in Stewart v. H. & T. C. Ry., 62 Tex, 248, Dnke' v. Harper, 
Mo. Ap. 9, Brown v. Bigne, 21 Or. 265, 28 Am. St. Rep. 755, 28 
ic. 13, 14 L. H. A. 745, Mercantile Trust Co. v. Texas etc. Ry., 51 
^d. 532, and Ross v. Fort Wayne, 64 Fed. 1007, all reaffirming rule; 
exican Nat. Coal etc. Co. v. Frank, 154 Fed. 224, where complalo- 
it and intervener had common interest in subject matter of suit, 
Teement between them wbereby interveaer agreed to sue at own 
pense, complainant to have percentage of net recovery, ii not 
ampertouB; Mossman v. Hawaiian Government, 10 Haw. 436, con- 
yance by disseizee to third party is not void aa against disaeizor; 

re Jones, 29 Utah, 344, 81 Pae. 164, refusing to disbar attor- 
17 who had entered into contract with client for purchase from him 

pending litigation relating to foreclosure of mortgage; Board of 
immiasioners v. Jameson, 86 Ind. 161, qualifying rale by force ot 
de. See notes, 15 Am. Dec. 318, 320; 13 Am. St. Sep. 300. 
See note in 3 McCrary, 68, for general state of the law concerning 
amperty in the United States. 

Tex. 474-482, HOLIdUn> t. STATE. 
Verdict of Oullty with assessment of life imprisonment at hard 
bor is sufficient to sustain indictment for murder. 
Distinguished in Buster t. State, 42 Tei. 316, 310, where verdict 
iding defendant guilty as charged and assessing his punishment to 
le hung by the neck until dead" was beld insufficient. 
Miscellaneous.— Woolbridge v. State, 13 Tex. Ap. 458, 44 Am. Rep, 
2, cited arguendo, but holding that worda "flst degree" do not 
!!an "Grit degree" in a murder case. 

Tex. 482-4S7, BROWN T. STATE. 

Where Defendant la Taken Seriouslr Sick during trial on charge 
felony, the cause should either be continued temporarily or juror 
ithiliawn and continued. 

Approved in Mapea v. State, 13 Tex. Ap, 90, reaffirming rale; 
awes V. Stats, 88 Ala. 62, 7 So. 310, applying rule to discharge of 
jnror who was discharged because of serious illness of eueh juror's 
ife. See notes, 78 Am. St, Rep. 782; 48 L. B. A. 440. 



ON TEXAS EEP0BT8. 38 Tex. 487-505 

cbol's Digest, separation o( jar; in ielonj 
cept by cODHent of defendant perBonally. 
tate, 1 Tex. Ap. 275, 28 Am. Bep. 412, re- 
13 Am. Dec. 82, 86; 103 Am. St. Sep 166. 
. Stoekhammer, 34 Wash. 2G3, 7S Pae. SIO, 
toneeut to eeparation of jury. 
T aliened by article 3070, Pascbal'a Dig«it, 
honid be under control of an officer, 
itate, 1 Tex. Ap. 400, EngliBb v. State, 28 
76, and MeCampbell t. State, 37 Tex. Cr. 
irming mle. 

ite OMuea redneing homicide from murder 
bose enumerated in article 2254, Paacbal's 

n T. State, 19 Tex. Ap. 273, reaffirming 

e thei« ia evidence of malpraettce on part 
deceased, jnr; ibould be instnicted not to 
from the malpractice and not the wound. 
State, 16 Tex. Ap. CSS, reaflBrming rule. 
I.) 849. 

lendant ahonld not only be within walla of 
may aee and hear, and be aeen and heard, 
annion. 19 Utah, 512, 75 Am. St. Bep. 756, 
18, reaffirming rule. See notea, 28 Am. Dee. 

r T. BomnsB. 

Bociirit7 other than Tendee'a note for par- 
Ddor'i lien. 
:ep. 931. 

T. BIOHABOSDN. 
Dn DockM at former term is auffleient to 
tea at Bubaequent term. 

V. State, 1 Tex. Ap. 084, cited arguendo, 

on the point. 

tep. 30, BTTLIiABD T. STATE. 

lered in criminal case by a jury of more 

an, 51 lows, SSI, 33 Am. Bep. 151, 2 N. W. 
B eleven jurora in criminal caie. See notea, 
330. 

Fwelve have been impaneled, and last juror 
y be dismiaaed, and the trial proceed. 
Itate, 9 Tez. Ap. 636, reaffirming rule; die- 
V. Grand Bapids etc. B. B., 93 Mich. 408, 
. 750, majority holding law allowing court 
)«r of jarora than originally impaneled uc- 

T. Orand Bapids etc. B. B., 93 Uieh. 407, 
L. 750, where one juror was discharged by 
igainst protest of defendant. 
Digest, provides for a jury of twelve men. 



i^' 



38 Tex. 505-535 NOTES ON TEXAS REPORTS. 



366 



38 Tex. 505-512, FULCHEB V. STATE. 

Appeal Does not Lie from Jadgment overruling motion for a new 
trial in criminal case. 

See note, 60 Am. Dec. 438. 

38 Tex. 513-517, HABT V. MILLS. 

Section 43, Article 12, of Constitation refers only to time when 
civil actions may be commenced in state courts, and does not apply 
to matters of practice relating to actions pending in the courts. 

Approved in McAnear v. Epperson, 54 Tex. 226, and Best v. Nix, 6 
Tex. Civ. 352, 25 S. W. 131, both reaffirming rule. 

Writ of Error is not a New or Original Suit, but a continuation 
of the original cause. 

Approved in Stephenson v. Texas etc. R. R., 42 Tex. 165, Harle v. 
Langdon, 60 Tex. 564, and Texas etc. By. v. Jackson, 85 Tex. 608, 22 
S. W. 1032, all reaffirming rule. 

38 Tex. 521-523, TATLOB ▼. BONNETT. 

An Adjudication of Bankruptcy against a defendant ousts the 
jurisdiction of the state courts over the bankrupt and his estate. 

Distinguished in Flanagan v. Pearson, 42 Tex. 6, 19 Am. Rep. 43, 
where appeal was pending when bankruptcy proceedings were in- 
stituted. 

Overruled in Elliott v. Booth, 44 Tex. 189, 190, 23 Am. Rep. 598, 
holding that discharge in bankruptcy does not release a prior lien; 
French v. Pyron, 2 Posey U. C. 720, holding that discharge in bank- 
ruptcy does not release property subject to mortgage. 

Miscellaneous. — Gillett v. McCarthy, 23 Kan. 671, cited arguendo 
to point that rule there was overruled. 

38 Tex. 523-^25, PFEIFFEB ▼. BiALTBT. 

Mere Fact That There was an Auditor in the case does not take 
away right of trial by jury. 

Approved in Kendall v. Hackworth, 66 Tex. 506, 18 S. W. 105, re- 
affirming rule. 

Fact That Firm Sold Goods to rebel authorities is no defense to 
accounting for profits by one partner. 

See note, 99 Am. St. Rep. 328. 

38 Tex. 526-530, JOPLIN v. FLEMING. 
Homestead Bight Does not Attach till land is paid for. 
See note, 86 Am. St. Rep. 175. 

38 Tex. 530-533, VAUQHAN v. QBEEB. 

Bona Fide Purchaser from Heir takes the estate as against holder 
of unrecorded deed from the ancestor. 

Approved in Holmes v. Johns, 56 Tex. 53, and Thorn v. Frazer, 60 
Tex. 263, both reaffirming rule; Branch v. Weiss, 23 Tex. Civ. 87, 57 
S. W. 903, applying rule where coheir purchases from other heirs. 

38 Tex. 533-535, ALEXANDEB v. THOMPSON. 

Amount of Judgment Prayed for is the test of jurisdiction of the 
suit, though aggregate of items of account exceeds jurisdictional 
amount. 

Approved in Stewart v. Thompson, 85 Ga. 831, 11 S. E. 1030, up- 
holding right to remit excess over jurisdictional amount; Yblcano 



NOTES ON TEXAS BEPORT8. 38 Tex. 535-580 

ti^. Co. V. Ha;aihi, 13 Haw. 696, in ftetion on bood amount 
^s claimed ind cot pcnaltj oamed thereiD determines juris- 
See note, 28 L. R. A. 224. 

uished in Times Pub. Co. v. Hill, 36 Tex. Civ. 390, 392, 81 
7, 808, in determining amount in controversy for jurisdic- 
rpoBes, amount shown hj alle^tions of petition and not of 



>35-637, HUDEBUBOH ▼. STATE. 

ropei Jodgment tbat the priioner be remanded into cuetody 

until his fine and costs be paid, 
:e, 12 Am. St. Rep. 202. 

37-512, TUUJS T. aCOTT. 

a cannot b« Amended after default is taken witbont having 

:t aside. 

ed in Bates v. Evans, 2 Tex. Ap. Civ. 165, reaflirmiDg rule. 

B Betnm Tbat He Dellveied "a copy of petition," without 

'hat petition, is insufficient. 

ed iu I. & G. N. E. R. v. Pape, 1 Tex. Ap. Civ. 98, Graves 

irse, 1 Tex. Ap. Civ. 464, and Cardwell v. Sabicbi, 59 Cal. 

reaffirming rule; H. E. t W. Tex. Ry. v. Erving, 2 Te.t. 

114, wbere date of filing of citation did not appear on its 

:e reporter's note in 2 Tex. Ap. Civ. 83, for case» bearing on 

' articles 1230-1233 of the Revised StatuteB relating to 

1 nonresidents. 

■43-648, STATE v. GABOIA. 

lent will not Lie for Violation of Act of May 22, 1871, pro- 
tock-raisers and granting one-half of fine to informer, but 
gs should be on relation of informer. 
ed in RawlingB v. State, 39 Tei. 200, reaffirming rule. 
led in Qibbs v. State, 39 Tex. -Cr. 477, 46 8. W. 646, holding 
)n for illegally fencing land should run in name of the 
be by indictment. 

59, FOWLER T. STATE. 

ot Essential that an indictment should charge tbe offense 

I language of statute. 

ed in Shubert v. State, 20 Tex. Ap. 330, where in prosecu- 

•r article 749 of tbe Penal Code, the word "deprive" was 

>ad of "defraud," but the animal was alleged to have been 

tly taken. 

l6B-67e, McCOBMICE v. ARNSFIOEB. 

■assage of Oongiesslonal Noulntercourse Act of July, 1861, 

amation thereunder of August, 1861, cammercial intercourse 

citizens of Dlinois and Texas was not illegal. 

e, 96 Am. Dec. 627, 628, 631. 

76-680, KEBBITT v. WALTEES. 

il will Lie for an Arbitrary disregard of party's right to 
e time for preseTitation and comment of facts to jury. 
ed in May v. Hahn, EE Tex. {.Iv. 366, 54 S. W. 417, reaflirm- 
Wetz V. Wetz, 27 Tex. Uiv. 599, 66 S. W, 871, bUl of ex- 



Tex. 591-606 ^OTES ON TEXAS BBP0BT3. 368 

ptioua to refusal of court to heai arpiment before deeidiug case 

neceasary to review refusal. 

Ol&lm foi Bona Fide ImpiovemontB will not be Bustsined b^ proof 

mistake as to boundary lines, wheie knowledge of such mietake 
18 had at purcbsse of liind. 

Approved in McKie t. Simpkint, 1 Tax. Ap. Civ. 115, where apecial 
swer did not allege' facta inducing alleged good faith. See note, 

Am. Dee. S29. 

Tex. 691-697, OHANBLEB t. BITBHINa. 

By Sale of Improved pottion of land in aetaal possession, vendor 

les constructive possession of the remainder nnlesa he take actual 

Bsesaion of it. 

Approved in State v. Earmvi, 57 W. Va. 4«4, 50 S. E. 835, Sharp 
Shenandoah Furnace Co., 100 Va. 33, 40 3. E. lOS, and Eendrick 
Latham, 25 Fla. 844, So. 877, all reaffirming rule; Feden ▼. 

enshaw (Tex. Civ.), 81 S. W. 372, actual poBsession by grantee of 

rt of premises conveyed gives eonattuctive poasesaion to extent of 

undariea of deed. 

Tex. 699-603, BAIIO) ▼. STATE. 

Pemilssion Oiven b? Iaw to bear armi "on his or her own prem' 
•.a" does not authorize carrying of weapons in the woods while 
ntieg stock or hogs. 
Approved in Titua v. State, 42 Tex. 679, reaffirming role; Beynolds 

State, 1 Tex. Ap. 619, where defendant used pistol to kill a wild 
arling beef, it was no defense. 

Berenal will Ue onlesa record shows that jury were sworn at 
al of criminal case. 

Approved in Berry ▼. State, 10 Tex. Ap. 317, Kelly v. State, 13 
X. Ap. 160, and Stewart t. State, 18 Tex. Ap. 626, all reaffirming 
le. 

Tex. S03-604, MOBBIS T. STATE. 

Keeping of Disorderly Hooh may be proved by its general rep- 
ation for that character in the community. 

Approved in Sylvester v. State, 42 Tex, 496, 4B7, Brown v. State, 
Tex. Ap. 190, Stone v. State, 22 Tex. Ap. 190, 2 S. W. 587, Cook v. 
ate, 22 Tex. Ap. 527, 3 8. W. 752, Sprague v. State (Tex. Cr.), 

S. W. 838, Demartini v. Anderson, 127 Cal. 35, 59 Pac. 207, State v. 
.mbron, 20 S. D. 287, 105 N. W. 243, and State v. Smith, 29 
inn. 195, 12 N. W. 524, all reafirming rule. See notes, SO Am. Bep. 
9; 20 L. E. A, 611; 4 L. B. A. 676. 

Distinguished in Allen v. State, 15 Tex. Ap. 322, where it was 
ight to prove by general reputation that defendant kept a certain 
wrderly honae. 

MiaeellaneouB. — Iiowe v. State, 4 Tex. Ap. 37, miscited ae to sufli- 
>ncy of indictment charging the keeping of a disorderly house. 

Tex. 604-606, BOYNTON r. UBA3SBEBJJHS. 

In Suit 0& am Account, petition shonld contain a bill of partii?ulara. 
Approved in Howell Cotton Co. v. Citizens' Nat. Bank, 81 Fed. 770, 
alBrming rule. 



IK TEXAS BEPORTS. S8 Tex. 606-636 



Bslnst NoniVBldeiit Defsnduita, t 

le of deleadants, in pleadiogB or proeeu, 

I.) 676. 

T. BYI£B. 

iither legal or eqaltable defenaei amount- 
iffered without being specially pleaded. 
imaey, 46 Tex. 3T6, and Quest v. Quest, 
itb reaffirning rule. 

B V. Chollar, 128 Fed. 903, 66 C. C. A. 
g in TexBi, equitable defense not main- 
title brought on law side. 
't Uen ID suit, which did not make party 
Ttj to it, ia not binding on the party in 

reedlove, 4S Tex. SI, where party in poa- 
Teyaneei was not made party to fore- 



. HABDIN. 

uestiouB of property between the parties 

imett, 9 N. M. 220, 50 Pae. 341, leaffirm- 
9 N. H. 220, 50 Pan. 341, divorce decree 
ipouse against other to enforce property 
il relation. See note, GO Am, Dec. 668. 
le T. Coffey, 4S Tei. 274, holding that 
eommunity property an issue in divorce 
vorced wife from afterward raising the 
'ex. 251, IS B. W. 723, holding failure to 
. does not bar divorced wife froin action 
veyances of husband made prior to the 

▼. STATE. 

mlnatlan seek* to draw oat new matter, 
or that purpose, and opposite party may 

;at« (Tex. Cr.), 64 S. W. 242. 

r. HAWKIKS. 

ired return by administrator of account 
lie ahould be certain, specific and strictly 

3wer, 3 Tex. Civ, 654, 22 S. W. 759, on- 
in 1S46, purchaser must show payment 
irith statute, where sale was not con- 
ec. 611. 

Deed from Orantor, who held under war- 
ed by vague recitals in remote quitclaim 
conveyance. 

iwkins, 1 Posey IT. C. S19, and Stanley t. 
Bup. Ct. Bep. 763, 40 L. 968, all reamrm- 



38 Tex. 636-648 NOTES ON TEXAS BEPORTS. 



370 



Wliere Qnardlan's Irregular Sale is confirmed by probate court it 
cannot be collaterally questioned. 

Approved in Holmes v. Johns, 56 Tex. 53, reaffirming rule. See 
note, 84 Am. Dec. 610. 

Miscellaneous. — Fletcher v. Ellison, 1 Posey U. C. 670, miscited 
to point that quitclaim deed conveys only grantor's interest, and 
cannot exclude operation of prior unrecorded deed (which was only 
arguendo in case cited). 

SB Tex. 636-640, COOLET ▼. STATE. 

Less Than Twelve Men will not constitute a jury in state cases. 

Approved in State v. McClear, 11 Neb. 61, reaffirming rule. 

See This Case for Bnle in Detail as to proper mode of selecting a 
jury. 

Approved in State ▼. Tvey, 41 Tex. 36, reaffirming rule. 

Overruled in Baker v. State, 3 Tex. A p. 531, holding rule to be over- 
ruled in Horbach v. State, 43 Tex. 242, which states the correct rule. 

Challenges to the Array must precede those made to the poll. 

Approved in State v. Wright, 45 Kan. 137, 25 Pac. 631, reaffirming 
rule. 

38 Tex. 641-643, OTJNDIFF ▼. STATE. 

In Absence of Proof to Contrary, presumption is that everything 
necessary to sustain a judgment was done in accordance with law. 

Approved in Whitman etc. Co. v. Voss, 2 Tex. Ap. Civ. 492, ap- 
proval of justice will be presumed from his filing and return of 
appeal bond to proper court; Taylor v. State, 16 Tex. Ap. 516, ap- 
proval of justice to appeal bond will be inferred from his return of it 
to district court. 

38 Tex. 645-648, BBOWK V. MOOBE. 

An Officer Interested in a Deed cannot take the acknowledgment 
of grantors in such deed. 

Approved in Merced Bank v. Bosenthal, 99 Cal. 47, 31 Pac. 852, 
Lee V. Murphy, 119 Cal. 370, 51 Pac. 551, Kothe v. Krag etc. Co., 
20 Ind. Ap. 301, 50 N. E. 597, and Davis v. Beazley, 75 Va. 495, all 
reaffirming rule; Ogden BIdg. etc. Assn. v. Mensch, 196 111. 563, 89 
Am. St. Bep. 330, 63 N. E. 1051, certificate of acknowledgment to 
mortgage before notary who was stockholder in mortgage company 
is vo