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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 Posseflrton, 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.
Sttretyshlp 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. HUFF.
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 Preeentatlon 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, HDTomKS 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, 0 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 void; First National Bank v. Citizens' State Bank, 11 Wyo. 57, 100
AnoL St. Bep. 925, 70 Pac. 728, cashier of bank who was also stock-
holder therein cannot take acknowledgment of mortgage given to
bank; dissenting opinion in Horbach v. Tyrrell, 48 Neb. 529, 532, 67
N. W. 491, 492, 37 L. B. A. 434, majority holding notary, who is secre-
tary of a mortgagee corporation, and not shown to be a stockholder,
is not disqualified from taking the acknowledgment in mortgage to the
corporation. See notes, 32 Am. Dec. 757; 41 Am. Dec. 170.
Distinguished in Titus v. Johnson, 50 Tex. 239, 240, where the cer-
tificate of acknowledgment was on its face as required by law;
Mundee v. Freeman, 23 Fla. 537, 3 So. 157, where affidavit of attest-
ing witness was made before clerk of circuit court, who executed
the tax deed in his official capacity.
CommissiODa of a Trustee is sufficient interest to disqualify him
from taking the acknowledgment of the trust deed.
Approved in Sample v. Irwin, 45 Tex. 573, Morton v. Lowell, 56 Tex.
647, Bothschild v. Daughter, 85 Tex. 333, 34 Am. St. Rep. 812, 20 S.
NOTES ON TEXAS EEPOETS. 38 Tbt. 638-659
U. B. A. 719; Bwter t. Howell, 7 Tex. Cit. SOI, 26 8. W.
. Kelly, 16 Tex. Qt. 153, 40 8. W. 802, Green t. Abraham,
. and Holden t. Brimage, 72 Uias. 231, 18 So. 3S3, all re-
le; Long t. Crews, 113 N. C. 258, 18 B. E. 500, where the
» preferred creditor under tbe trust deed; Bowden v. Per-
119, 19 Am. St. Bep. 874, 9 6. E. 617, where acknowledgment
benefleiary of the trust deed; Taveoner v. Barrett, 21 W.
ere tniit deed was acknowledged before one of the two
ein. See notea, 56 Am. St. Bep. 798, 799; 33 L. B. A. 339.
-669, BTEPEBNB T. HIX
til Parttea OUlm TlUs under common aonree, and plaintiff
ind that defendant ia in posaeSBioa, defendant must prove
a to rebut ptaintiS'B prim& facie caBe.
in Simmons etc Co. v. Davis, 87 Tex. 148, 27 S. W. 63,
)37, reafflrming rnle.
OH Below waa I>at«niiiii«d by the conrt, appellate court
aaeh jadgmeut aa ahonld have been rendered below.
in St. Louis etc. By. v. Adama, 24 Tex. Civ. 237, 58 a.
ifflnning mla; Oood v, Galveaton etc. By. (Tox. Sup.), 11
where a demurrer to the evidence has been sustained by
appellate will render tb» proper judgment.
NOTES
ONTBB
S EEPORTS.
!S IN 39 TEXAS.
B of electiva office U bntb propertr
incumbent can only be deprived of hia office
DuffnB, 68 Iowa, 199, 23 N. W. 398, Civil
tovidea for truBp«naion of elective officer bf
le'ppard, 192 Mo. 497, 91 8. W. 480, under
lid not remove clerk from office because he
t for morder wholly diaeomnected with office.
»j Aarama the exi«tene» of a vaeancj in an
idjndge the office forfeited.
Board of Commiaaionera, 11 W. Ya. 477, 23
7, chapter 7, of the code anthoriaiag county
linat jnatice of the peace, and remove him, la
' eziata in forfeitore of office, and governor
mme judicial functions not granted to him
Lehman, 60 Hiaa. 977, holding circnit court
aneb eonrt ezeapt upon conviction of an -^
, 17 Or. B51, 21 Pac. 881, 5 L. B. A. 115, goT-
oad commiaaioner for eauae, except on notice
vata Taeanciea eziata only where be has the
currenes by the aanate or popular election,
undeflned by law.
mith, S5 Neb. 30, 52 N. W. 705, 18 L. B. A.
governor can only remove Are oommisnionen
, after trial,
idonsuat of OfllM without the intention to
[ opinion in Uaddoz v. York, 21 Tei. Civ.
' holding aheriff taming over office at end of
eommiaeionera' court abaodona it
(373)
39 Tex. 31-66
NOTES ON TEXAS EEPOKTS.
374
The Bight to an Electiye Office may be lost by nonuser or misuser,
though a party continue to assert it, but the determination of the
question is for the judiciary.
Approved in dissenting opinion in Flatan v. State, 56 Tex. 107,
majority holding county commissioners' court may declare sherifTs
office vacant and fill vacancy on failure to give bond. See note, 83
Am. Dec. 376.
39 Tex. 31-34, BBTAK ▼. JOHNSON.
Purchaser cannot Besist Payment of price aa to part only of land
to which title is defective but must rescind as to whole.
See note, 21 L. B. A. (n. s.) 386, 398.
39 Tex. 34-45. HAMIIAN ▼. KEIGWIN.
Holder of Quitclaim Deed is not a bona fide purchaser without
notice.
Approved in Milam Co. v. Bateman, 54 Tex. 169, following rule;
Carter v. Wise, 39 Tex. 275, children may recover mother's community
interest of father's vendee under quitclaim deed. See note, 29 L. B.
A. 34.
Bona Fide Holder most Show Bona Fide Purchase, without notice,
actual or constructive, and payment of purchase money independent
of recitals in deed.
See notes, 17 Am. St. Rep. 290; 1 L. B. A. 798.
Parol Evidence cannot be Admitted to vary terms of written instru-
ments, but it ie admissible to explain ambiguous ones.
Approved in Shaw v, Parvin, 1 Tex. Ap. Civ. 154, following rule.
See note, 6 L. B. A. 40.
39 Tex. 49-53, XIMINES ▼. SMITH.
A Poet-nuptial Contract will only be enforced when equitable in its
terms, and its observance is demanded by the clearest principles of
justice.
Approved in Ximenes v. Ximenes, 43 Tex. 465, entering a judgment
rendered at former term nunc pro tunc; Proetzel v. Schroeder, 83 Tex.
687, 19 S. W. 293, holding post-nuptial contract void; Hileman v.
Hileman, 85 Ind. 5, wife's contract with husband concerning her
separate property not binding pn her.
Distinguished in Rains v. Wheeler, 76 Tex. 394, 13 S. W. 325, up-
holding deeds between husband and wife, after separation, settling
property rights, when made without coercion.
Miscellaneous. — ^Ximenes v. Ximenes, 43 Tex. 463, referring to
former appeal.
39 Tex. 53-66, OOLBSBT ▼. STATE.
A United States Soldier on duty inside a fort is not guilty of false
imprisonment for imprisoning a person who stands outside the garri-
son and insults him.
See note, 54 Am. Dec. 262.
39 Tex. 64-66, BBACKENBIDGE ▼. SAN ANTONIO.
Purchaser Pendente Lite for foreclosure of vendor's lien acquires no
title as against lien, though plaintiff guilty of laches in executing
judgment on lien.
Approved in Harle v. Langdon, 60 Tex. 564, purchaser pending writ
of error is purchaser pendente lite; Texas etc. By. v. Jackson, 85 Tex.
NOTE9 ON TEXAS BEPOBTS. 30 Tex. 6T'B5
KWAsnra v. tebbt.
inltclalm Seod does not t&ke bj eatoppel grantor't
Ct. VABNELL.
as, Section 10 of tfae eonititDtlon, reUtlve to judicial
a only to tax sales and lalea under judgments in
lTB t. abnold.
It for Onttlng Timber on land of another, eharg;*
"willfully" does not obviRte necessitj for charge
inowingly." .
ite T. Peirj, 109 Iowa, 354, 80 N. W. 401, liolding
isting officer mast charge offense aa knowingly or
y
INSON T. OAMFBELL.
to Compel HI Offlcei to perform ministerial duty.
I. Dec. T3£.
lbs County TrMsmer being ministeriid, lie cannot
y of a warrant presented for payment.
Iiool Trustees v. Farmer, 83 Tex. Civ. 4S, 56 3. W.
y treasurer not protected in paying county warrant
proper anthority where he knows it to be in eitess
lich county is legally liable; American Bridge v.
. 14, 76 Fac. S35, applying role to duty of county
arrant for claim allowed by county commissiogers;
14 Tex. Civ. 18, 37 8. W. 1088, mandamuaing city
warrant drawn on school fnnd; Wyker v. Francis,
io. 899, allowing mandamus to compel treasurer to
arty drawn; Ray v. Wilson, 29 Fla. 318, 10 So. 614,
compelling county treasnrer by mandamus to pay
note, 14 L. B. A. 776.
I Walker v. Barnard, 8 Tex. fflv. 18, 37 S. W. 727,
LB to compel payment of warruit by treasurer in
tatutes, article 9B8.
NOB V. Busna
oey hu never had legal Talae.
t. A. 759.
SNSOH r. POAO.
by State Court Judgments are enforceable in bank-
after an act of bankruptcy hu been committed, or
d a bankrupt.
1 Flanagan v. Peaiaon, 42 Tex. 6, 19 Am. Bep. 43,
it created in fiduciary capacity is not discharged
llliott V. Booth, 44 Tex. 189, 190, 23 Am. Rep. 598,
gnlorce vendor's lien on land sold before proceed-
39 Tex. 98-122 NOTES ON TEXAS REPORTS.
376
ings in bankruptcy against purchaser with notice; French v. Pyron,.
2 Posey U. C. 720, discharge in bankruptcy does not release mort-
gage, though debt not proved up; Gillett v. McCarthy, 23 Kan. 671,
bankruptcy does not preclude enforcement of attachment lien com-
menced more than four months previous to bankruptcy proceedings.
39 Tex. 98-103, TUOKEB ▼. OABB.
Wife's Seiraxate Property can only be passed from her in the statu-
tory manner over her separate acknowledgment.
Approved in Texas etc. Ry. v. Durrett, 57 Tex. 51, husband alone
cannot convey perpetual easement in wife's land; Ballard v. Car-
michael (Tex. Sup.), 17 S. W. 395, under act of 1846, transfer by wife
of her certificate of land location had to be acknowledged.
Distinguished in Ballard v. Garmichael, 83 Tex. 362, 18 S. W. 736,.
wife may convey unlocated land warrants by parol.
All Property Acquired During Marriage, no matter to whom the
title is made, is community property.
See notes, 70 Am. Dec. 399; 86 Am. Dec. 637.
Where Property 'is Purchased in Wife's Name with husband's private-
means it is presumed to be a gift of the property to the wife.
See notes, 86 Am. Dec. 640; 96 Am. Dec. 423; 69 L. R. A. 368.
39 Tex. 106-112, BELL ▼. WABBEN.
An Instrument in Consideration of Services to be rendered in locat-
ing, conveying title to one-half of land to which maker is entitled,
executed before land located, and obligating maker to convey there-
after, is not a deed, but an executory contract.
Approved in Prusiecke v. Ramzinski (Tex. Civ.), 81 S. W. 772,
agreement by defendant to convey to another interest in land involved
in pending suit which defendant might recover therein, for good con-
sideration, is executory agreement to convey. See note, 78 Am.
Dec. 582.
Equity will Enforce Contract for conveyance of location interest in
land, in favor of locator's heirs, if the locator substantially complied
with his contract.
Approved in Reed v. West, 47 Tex. 247, 249, holding acquiescence
of location as ultimately made waives laches; Campbell v. McFadeu,
71 Tex. 32, 9 S. W. 140, decreeing specific performance in favor of
heirs of locator where there was substantial compliance sufficient to
excuse laches; McEan v. Williams, 48 Tex. 92, and Walton y. Talbot,
1 Posey U. S. 514, arguendo.
39 Tex. 112-122, BLUM ▼. BICES.
A Bankrupt may Plead His Discharge in bar of an action by creditor
whose debt was not scheduled and who was not served with notice
from the bankruptcy court.
Approved in Brown v. Causey, 56 Tex. 345, creditors of bankrupt
are charged with notice of proceedings after statutory public notice;
Vandoren v. Gaston, 52 N. J. L. 325, 19 Atl. 609, discharge in bank-
ruptcy not collaterally attackable unless fraud shown.
Distinguished in Fields v. Rust, 36 Tex. Civ. 351, 82 S. W. 332, dis-
charge in bankruptcy under act 1898 does not bar debt not properly
scheduled, where owner thereof had no actual notice of bankruptcy
proceedings.
:S ON TEXAS BEPOBTa 39 Tex. 1S3-139
WB T. HABVET.
Bank to paj to bearer a apecial deposit U not
r. MeGrew, 44 Tex. 417, following rule. See
WON T. STATE.
lid's Bvldoice, after an ezamiDatioa on voir
discretion of the coort.
King, 117 Iowa, 488, 91 N. W. 769, following
[ Tex. Ap. 123, admitting cTidenee of rhild
Wheeler v. United States, 159 U. 8. 525, 16
!47, admitting evidence of boj five j'sara old;
(60, admitting teatimonj of child Beven fears
rho on voir dire said she did not know what
country would do to her if she swore falsely,
Id competent ai witneBs.
Bep. 307; 19 L. B. A. SOS.
N ▼. STATE.
left maj lay ownership of property' in either
. State, 4 Tex. Ap. 331, following rule.
V. Jackson, 9 Or. 460, luiscited.
V. WALTNITZOH.
d In Tine to be shown on motion for new trial
II in equity for new trial.
V. Dell'Ara (Tex. Civ.), 84 S. W. 444, in soit
I groDDd that it was obtained by perjnry, error
■ary injunction against execution sale to diamiBs
merits; McMarray t. McMurray, 67 Tex. 669,
set aside judgment procured by perjarsd tes-
^ B. A. (D. B.) £30.
I0 His Book Acconnt and sne upon each part,
ecouut so as to bring it within the jurisdiction
nd sue on the remainder.
T. Thompson, 65 Oa. 831, 11 S. E. 1030, fol-
ost, S9 Tez. 687, judgment cannot be collater-
ng illegality of credits acknowledged so as to
urisdictional amount; Burke v. Adune, 3 Tez.
holding plaintiff cannot remit attorney '£ fees
out defendant's consent; Watson v. Texas etc.
S. W. 934, judgment for damages to property
ar-to action for personal injuries due to same
> Am. Dec. 645; 21 Am. St. Bep. 621; 28 L. B.
r Select Propvrty he wishes to be exempt.
ind V. Barnard, 36 Tex. Civ. 120, 81 3. W. 593,
d two horses and wife owned two others, hui-
t property of wife as ezempt from forced sale.
39 Tex. 143-165 NOTES ON TEXAS BEPOBTS.
378
39 Tex. 14S-146, JAMES ▼. DBAKE.
A Ccmtract for the Acquisition of Title to vacant land is not within
the statute of frauds.
See following notes: 55 Am. Dec. 756; 67 Am. Dec. 689.
Possession of Land Under Contract of purchase is constructive notice
to subsequent purchasers of possessor's interest therein.
See note, 13 L. B. A. (n. s.) 103.
Orantee Under Quitclaim Deed of Land in possession of third party
takes subject to equities between vendor and possessor.
See note, 105 Am. St. Bep. 858.
89 Tex. 148-153, HOUSTON ETC. BT. ▼. STATE.
The Statute Regulating Manner of making delinquent tax lists
being merely directory, a substantial compliance therewith is suffi-
cient.
Approved in Clegg v. State, 42 Tex. 612, duly certified delinquent
tax list is prima facie evidence of state's right to judgment; State
Tax-law Cases, 54 Mich. 447, arguendo.
Instructions to Sheriff to Employ Counsel to sue for delinquent
taxes may be shown by parol.
Distinguished in McCullough v. State, 50 Tex. Ct. 133, 94 S. W.
1057, on trial for bigamy error to admit oral evidence of contents of
letter written by defendant to his daughter where letter in existence
though no notice given to produce it.
39 Tex. 157-160, ALSTON ▼. ULMAN.
Family of Nonresident is not entitled to substituted allowance in
lieu of homestead out of property in course of administration in this
state.
See notes, 11 L. B. A. (n. s.) 361; 56 L. B. A. 62.
S9 Tex. 160-165, LONG y. SMITH.
Injunction Does ndt Lie in favor of party prosecuting a defective
appeal, and thereby losing his remedy at law.
Approved in Denton v. Denton, 77 Miss. 378, 27 So. 383, following
rule; Halcomb v. Kelly, 57 Tex. 621, refusing to restrain execution
of judgment when party failed to prosecute a certiorari; Galveston
etc. By. V. Ware, 74 Tex. 49, 11 S. W. 919, denying injunction against
voidable judgment; Farmers* etc. Warehouse Co. v. Pridemore, 55 W.
Va. 465, 47 S. £. 264, refusing to enjoin judgment at law on mere
allegation that complainant can now prove matter of his defense of
action at law which he was unable to prove at trial, but no reason
founded in fraud, accident or mistake alleged.
An Appeal Bond Deficient in Amount may be superseded by a new
one, but a new bond cannot be substituted for one defective in form.
Approved in Davis v. Estes, 4 Tex. Civ. 208, 23 S. W. 411, omission
of statutory conditions in bond will not defeat motion to affirm on
certificate; Houston etc. B. B. v. Bed Cross etc. Farm (Tex. Civ.), 43
S. W. 795, new bond cannot be substituted after lapse of time to file
it, where original bond failed to comply with statute; Sutton v. Bower,
124 Iowa, 59, 99 N. W. 105, defendant appealing from justice court
judgment cannot file, after time for appeal has passed, new bond in
li-eu of bond filed in time but naming third person as obligee instead
of plaintiff.
NOTES ON TEXAS BfiPOBTS. 39 Tei. 165-212
«n will not be ExerdMd hy eoart In fsTor of party
7 QBe bis legal lemed^.
aider t. Beinbart, 20 Colo. 456, 39 Pac. 411, new trial
I denied if new evidence diBcovered in time to make
Lrial at law. See notes, 32 L. B. A. 326; 30 L. B. A.
-Davia t. Cbalfant, 81 Cal. 631, 22 Pac. 973, niscited
I to sufficiency of allegation* of fraud.
UUTUUiNB ▼. LOOEETT.
ttadrawal of Deposit after judgment, on wbieb deposit
teific performance waa obtained, ia ground for injunc-
UOKGAir T. DABSAGR.
ctlon In Selltng Fropertr in bia poBveaalon under ap-
binds owner.
im. St. Bep. 4S0.
BIOE T. BUBNET.
tiat TnoA Titiates everytbing it tonebet extends to
ales, and in such caae caveat emptor does not apply,
m. Dec. 552.
SANSEBS V. DUVAIh
!t to Belocatim upon failure to Tetnm fleld-notes duly
e certifleate to tbe land office, as prescribed by act
Iheppard t. Avery (Tex. Civ.), 32 S. W. 793, wbere
was made in 1847, but it was not shown that fleld-
ned before 1S58.
CAVITT T. JAMES.
[ Firm Name by surviving partner after death of one
pass title to note,
urn, Dec, 127.
Payftble to Firm la Drawn after death of partner and
I is merely fictitious, it is payable to bearer.
. B. A. (n. B.) 507.
WUNOS ▼. STATE.
Stock Iiaw of May 22, 1S71, mast be punished by in-
m of qui tarn action, and not by indictment.
Jibbs V. State, 39 Tei. C*. 477, 48 8. W. 646, holding
SMITH T. ELLIOTT.
imui'B Acknowledgment must show that eha willingly
\m. Dec. 178; IDS Am. St. Kep. 565.
rt caouot OraiTey Title to homestead except by deed
30n her private examination as required by law.
Teiaa etc. By. v. Duirett, 57 Tex. 51, conveyance of
■nt, in wife's land, cannot be made by husband alone;
1, 40 Tex. Cr. 611, 76 Am. St. Rep. 743, 51 3. W. 382,
39 Tex. 227-254 NOTES ON TEXAS REPORTS.
3S0
a deed to homestead not allowing privy acknowledgment of wife can-
not be subject of forgery.
39 Tex. 227-236, ALEXANDER y. GILLIAM.
Actual Prior Possession of Land isi sufficient to recover from a mere
trespasser without title in trespass to try title.
Approved in Holman v. Herscher (Tex. Sup.), 16 S. W. 985, where
plaintiff in suit for unlawfully removing house had placed premises
in charge of agent to rent, his possession was sufficient; Holland ▼.
San Antonio (Tex. Civ.), 23 S. W. 756, where plaintiff was tenant in
possession under a lease.
One Tenant in Common can maintain trespass to try title.
Approved in Truehart v. McMichael, 46 Tex. 228, invalidity of par-
tition proceedings not available in favor of defendant T^lthout title
who is sued by allottee; Parker v. Fort Worth etc. By., 71 Tex. 133,
134, 8 S. W. 541, following rule. See notes, 70 Am. Dec. 314; 6 L. B.
A. (n. s.) 715.
Miscellaneous. — Matthews v. Thatcher, 33 Tex. Civ. 138, 76 S. W.
64, on point as to admissibility of evidence of common reputation in
neighborhood as to locality of line.
39 Tex. 236-241, QALVESTOK y. SYDNOR.
Taxes Collected Under Unauthorized Ordinance may be recovered
in action at law, whether payment was compulsory or not.
Approved in Wright v. Jones, 14 Tex. Civ. 430, 38 S. W. 252, ar-
guendo; Texas Land etc. Co. v. Hemphill County (Tex. Civ.), 61 S.
W. 334^ taxes paid involuntarily under an illegal assessment of prop-
erty are recoverable. See notes, 78 Am. Dec. 537; 4 L. B. A. 301.
Distinguished in Qalveston Co. v. Qorham, 49 Tex. 308, denying
right to recover part of tax illegally levied where payment was not
under protest.
39 Tex. 242-249, JOHNSON ▼. BXmFOBD.
Presumption That Property Purchased with community funds
and taken in wife's name is community property, is rebuttable by
husband's declarations at time of purchase.
Approved in Caffey v. Cooksey, 19 Tex. Civ. 147, 47 S. W. 67, follow-
ing rule; Yake v. Pugh, 13 Wash. 81, 52 Am. St. Bep. 19, 42 Pac. 529,
earnings of wife are her separate property where husband so agrees.
See notes, 70 Am. Dec. 399; 73 Am. Dec. 235; 76 Am. Dec. 108; 86
Am. Dec. 634, 636, 637, 640, 641; 96 Am. Dec. 423.
Property Plirchased by Wife with her earnings is community prop-
erty unless husband intended to give her proceeds of her earnings.
See note, 126 Am. St. Bep. 115.
39 Tex. 250-253, COOK y. BAIiDBIDaE.
Statutory Bnle as to Venue in injunction suit is peremptory (on re-
hearing).
Approved in Seligson v. Collins, 64 Tex. 315, Capps v. Leachman
(Tex. Civ.), 35 S. W. 398, and Hugo v. Dignowitty, 1 Tex. Ap. Civ.
63, all following rule.
39 Tex. 253-254, IBELAND ▼. GOBDON.
Commissions cannot be Collected of taxpayer for making the assess-
ment under section 30 of the act of April 22, 1871.
Approved in Willis v. Owen, 43 Tex. 48, upholding act of April 24^
1872, relative to organization and maintenance of schools.
PES ON TEXAS EEPOBTS. SB Tex. 255-303
: T. UOOBE.
B Oanses for knnuUing a deed procured therebj,
«■ and those having notice.
I T. McNeil, 25 Tei. 465, refuaing to cancel
tee where original deed fraadulently procured;
K!aii. 16, 17, poBBesBiDD by vendor ia not notice
hereunder aa againat grantee's purchaser.
>EK T. TnjJUN.
■or at Exeentlon Sale takes title as against a
from the defendant in eieciition.
t V. Watson, 5S Ark. 288, 24 8. W, 500, plain-
ention sale takes subject to all prior equities
rol and cannot be recorded; Booker v. Booker,
' in good faith at ezecation sale is protected
See notes, TO Am. Dee. 390; 76 Am. Dec. 87;
XB T. WISE.
Dlimlat and Head of FamO; Is eommunity, and
iterest vests in her children, not subject to hus-
ugh certificate not isBued till after wife's death.
Co. v. Bateman, 54 Tex. 109, following rule;
rash. 337, 06 Am. St. Bep. 912, 71 Pac. 1024,
: made homestead entry during life of wife but
ibtained till after her death, is community prop-
a. St. Bep. 019; IT L. B. A. (n. s.) 155.
«a O11I7 Onntor'a present interest, and holders
no cent purchasers.
r. Donald, 55 Tex. 354, fallowing rule; Wim-
[. 590, arguendo. Bee notes, 86 Am. Dec. 031;
29 L. R. A. 34.
Reynolds v. Bawlby, 1 Posey U. C. 464, holding
s' colony under act of January, 1850, is hus-
y where wife died prior to passage of act.
J T. HOnSTON ETC. BT.
t 13, 1870, providing for school taxes, it Is on-
innty into school districts or to designate tbe
pon which the taxes should be collected.
V. Owen, 43 Tex. 48, 71, upholding validity of
UABv
itlon of a Note was Confederate money loaned,
il sanction from a direction in maker's will that
he original promise was void.
rera v. Dittmer, 47 Tex. 375, holding contra.
LEFIELD T. FBT.
Dg a Substantial Avenuent does not relate to
lI pleading.
forth etc. Mills Co. v. Milam, 1 Tex. Ap. Civ.
aturely brought a new cause of action may be
39 Tex. 303-356 NOTES ON TEXAS EEPORTS.
382
39 Tex. 303-SlO, CANTU T. BENNETT.
Contracts BeUting to Personalty are constrned according to the law
of the place where made and those relating to realty by the law where
the property is situate.
Approved in Ryan v. M. K. etc. Ry., 65 Tex. 17, holding bill of
lading for goods shipped from Missouri to Texas is governed by laws
of former state; Jones v. National Cotton Oil Co., 31 Tex. Civ. 422,
72 S. W. 249, contract made and to be performed in Arkansas, but
obnoxious to its statute of frauds, not enforceable here, though if
made or enforceable here it would be valid; Herf etc. Chemical Co. v.
Lackawanna Line, 100 Mo. App. 179, 73 S. W. 351, contract of ship-
ment made in Missouri between resident corporation and carrier hav-
ing office and doing business there is governed by Missouri law, and
carrier need not notify consignee of arrival of goods; Forepaugh v.
Delaware etc. B. E., 128 Pa. 230, 15 Am. St. Rep. 677, 18 Atl. 506,
enforcing contract for transportation when valid in state where made;
Herf etc. Chemical Co. v. Lackawanna Line, 70 Mo. Ap. 282, holding
contract of shipment made in Missouri for shipment to another state,
governed by laws of Missouri; dissenting opinion in Piedmont Mfg.
Co. V. Columbia etc. R. R., 19 S. C. 382, arguendo.
Mexican Law Absolving Carrier from responsibility, where property
is taken by superior force or robbery, applies to contract made in
Mexico for transportation of goods to Texas, where forcible possession
is taken in Texas.
See note, 63 L. R. A. 532.
39 Tex. 310-314, TEBBY y. TEBBY.
The Surviving Widow of Person dying leaving no homestead ii en-
titled to allowance in lieu of homestead out of the estate, and also to
an allowance in lieu of such exempt personalty as husband did not
leave her at his death.
Approved in Mayman v. Beviere, 47 Tex. 360, following rule; Abney
V. Pope, 52 Tex. 293, purchaser of homestead under trust sale made
pending administration acquires no title; Armstrong v. Moore, 59 Tex.
648, trust sale of homestead pending administration passes no title.
39 Tex. 314^35, FITZPATBIOK v. POPE.
Gains from Slave Labor are Commnnity Property where slaves are
conveyed to husband and wife in trust for the support of themselves
and children.
See note, 86 Am. Dec. 635.
39 Tex. 346-349, GONZALES COLLEGE V. McHUGH.
In a Suit Against a College it is error to render judgment individu-
ally against the college committee, who were mere agents.
Distinguished in Connally v. Lyons, 82 Tex. 670, 27 Am. St. Rep.
940, 18 S. W. 800, trustees are personally liable for debts they create
as such.
39 Tex. 354-356, BABZIZA v. STOBY.
An Agent Employed to Buy Up an Encumbrance to perfect his prin-
cipal's title and taking deed in his own name, takes no title as against
his principal.
Approved in Rose v. Hayden^ 35 Kan. 109, 57 Am. Rep. 147,* 10 Pac.
556, following rule.
IS ON TEXAS RBPOBTa 39 Tex. 357-387
HAN T. SMITH.
8«leet«d "by Uie Haitiand from among aeveTal
boicfl the new homestead becomes, eo inBtenU,
Wheeler, fll Tax. 65 S, holding purchaser of
:■ good title wheTc huabani! bad no intent to
>ad righta; MeDannell v. Sagsdale, 71 Tes.
8 S. W. 625, where huBband leaves wife on
mtil she joins him; Mitchell t. Nix, 1 Posey
les not vest until busbaud is entitled to a
3ox T. Harrey, 1 Posey U. C. 273, husband
id rights without wife's consent; Cernenka v.
N. W. 321 (on rehearing), reaffirming rule
1 and wife owned five connecting tracts of
excess over two hundred acres. See note, 70
I T. Mayes, 2 Posey U. C. 221, sale of home-
Bent passes DO title though husband acquires
ler protest.
> Husband and Wil« claiming actual residence
ble IB suit brought to recover the abandoned
lant bought on the atrength of such declars-
. 115; 60 Am, Dec. 608.
rmines homestead.
ey T. American Nat. Bank, 41 Tex. Civ. 200,
Jone may designate which two hundred acres
amily shall eonstitate homestead, where man-
ids are ineluded.
in Holloman v. White, 41 Tex. 57, involving
L8 T. OIJUBOBNE.
TektcU owned by the •zeentioii defendant,
r 186S.
ewis, 64 Tex. 333, S3 Am. Sep. 768, following
Dee. 255; 53 Am. Bep. 771; 123 Am. St. Bep.
train farced sale of exempt property.
Bep. 101; 30 L. B. A. 99.
:■• Bank v. Norwood, 49 Ark. 138, 4 Am. St.
1 Parsons v. Hartman, 25 Or. 648, 48 Am. St.
Ij. B. A. 98, refusing to restrain forced sale
lit of judgment debtor.
S^. 31, SMITH T. BliAHTON.
may be interposed in an action brought upon
be constitution.
V. Deggs, 103 TT. S. 151, 2 Sup. Ct. Bep. 414,
of statute making contract nsurious deprives
'etterson v. Berry, 125 Fed. 906, 60 C. C. A.
in Alaska in 1893, securing notes bearing
, sued on in 1903, not subject to defense of
39 Tex. 367-389 NOTES ON TEXAS BEPOBTS.
384
89 Tex. 367-372, JONES ▼. BOXJI.WABE.
Judgment of Another State against administrator is not claim to be
accepted and approved in this state.
See note, 27 L. B. A. 102.
39 Tex. 378-381, ARNOLD ▼. SCOTT.
A Deputy Sheriff in making return of citation served hy him should
state for whom he acted as deputy.
Approved in Gibbens v. Pickett, 31 Fla. 151, 12 So. 18, following
rule; State Fair etc. Exposition v. Lyon, 5 Tex. Civ. 384, 24 S. W.
328, where there is conflict between recitals of sheriff and clerk as
to service of citation, the court will not hold service regular; Bobin-
son V. Hall, 33 Kan. 143, 5 Pac. 765, holding sheriff's deed must be
executed in name of principal. See notes, 26 Am. Dec. 415; 65 Am.
Dec. 76; 106 Am. St. Bep. 826, 827, 829,
39 Tex. 381-388, McKELLAB ▼. PEOE.
It is not Necessary for the plaintiff in error to sign the appeal
bond, since it is sufficient if signed by the sureties.
Approved in San Boman v. Watson, 54 Tex. 259, and Houston etc.
By. V. Lockhart (Tex. Civ.), 39 S. W. 321, both following rule; St.
Louis Brewing Assn. v. Hayes, 97 Fed. 861, failure of principal to
sign bond does not affect liability of sureties.
The Use by a Notary of the Seal of the county court by mistake
vitiates the act.
See note, 108 Am. St. Bep. 554.
Distinguished in Muncie Nat. Bk. v. Brown, 112 Ind. 477, 478, 14
N. E. 360, use of plain notarial seal differing from that ordinarily
used by the notary does not vitiate acknowledgment.
Husband and Wife cannot Alienate their homestead without the
privy acknowledgment of the wife.
Approved in Stone v. Sledge, 87 Tex. 55, 47 Am. St. Bep. 69, 26 S.
W. 1070, officer taking privy acknowledgment may amend certificate
if defective.
No Notarial Act is Valid unless the seal of office of such notary be
affixed.
Approved in Coffey v. Hend^cks, 66 Tex. 679, 2 S. W. 48, refusing
to admit title bond in evidence when official character of notary not
shown in certificate. See note, 74 Am. Dec. 369.
Notary may Attach Omitted Seal to certificate of acknowledgment
during his term of office but not after its expiration.
See note, 22 L. B. A. (n. s.) 217.
39 Tex. 388-389, POTTEB v. STATE.
Indictment Charging Theft of "one certain trunk or chest," being
in the alternative, is bad for uncertainty in description of property
stolen.
Approved in Countryman v. State, 52 Tex. Cr. 24, 105 S. W. 181,
information charging carrying of knuckles "on or about*' defendant's
person, instead of "on and about," is insufficient.
Distinguished in Thomas v. State, 18 Tex. Ap. 222, upholding in-
dictment for forgery of "school voucher or check"; State v. Collett,
9 Idaho, 614, 75 Pac. 272, upholding sufficiency of description in in-
formation charging larceny of one horse.
NOTES ON TEXAS EEPOETS. 39 Tei. 393-417
X. 393-^4, BOSS V. EABLT.
^acai of ft Lftud Certlflcate merges it into land, and after such
r the rights of claimantB must be determined by the laws gov-
iroTed in Wimberly t. Pabst, 55 Tei. 591, arguendo.
:ingui8hed in Barker v. Swenson, 66 Tex. ill, 1 8. W. 120, pur-
r at judicial sale of land certificate acquires right to acquire
X. 393-394, JOHNSON T. STATE.
Indlctmant f«T Theft must Allege that the property was taken
it the owner's consent,
note, S2 Am. Dec. 607.
I. 390-398, OUVEB t. OABSNEB.
School Board cannot Levy a different school tax from that
their predecessors levied for the same year.
roved in Boston etc. Smelting Co. v. Elder, 20 Colo. Ap. 103,
c. 261, where constituent municipalities, prior to consolidation,
taxes for municipal purposes for year in which consolidation
e effective, consolidated municipality could not make further
State V, April Fool Mining etc. Co., 26 Nev. 90, 64 Pac. 3, when
3r has regularly entered complete record of proceeds of mine
essment-roll and made affidavit that it is true and correct assess-
he cannot reasscea; Weils v. Board of Education, 20 W. Vs. 162,
school board authorized to levy tax to keep school open for
nonths in one year, they cannot levy tax in succeeding years.
i. 402-403. I£DTABD ▼. BBOWN.
Inal JndgnMnt, and not an Interlocutory judgment is necessary
port an action.
roved in Butta v. LafFera, 1 Tex. Ap. Civ. 471, judgment against
t aovenil joint parties bars further action; Van Horn v. Van
4S Wash. 3S9, 125 Am. St. Bep. 940, 93 Pac. 670, action does
e in this state on an interlocutory order of California court
ing plaintifF temporary alimony in divorce suit.
C 406-416, STTLIJUAlf v. OANAIjES.
ovenaut in an Executory Oontract for sale of realty that gran-
nveys the lands to the extent of the interest granted by tba
imiento does not call for paper titles, but only for title granted
iDtamiento, which may have been by parol,
note, 78 Am. Dec. 533.
r. 415-417, LADD T. PLEASANTS.
re Forcbuer Beceives Deed for "two bandred acres, more or
which was bid for by the acre, and both parties are ignorant
eed conveys more land than paid for, the purchaser must pay
roved in Jones v, Jones, 2 Tei. Ap. Civ, 17, admitting evi-
that tract contained less land than represented in suit for
See note, 94 Am. Dee. 2S9,
Ity will Believe When Deed conveys nearly three times as
land as the parties supposed had been purchased.
note, 76 Am. Dec. 114.
2 Tex. Notes— 25
39 Tex. 419-501 NOTES ON TEXAS BEPOETa
386
39 Tex. 419-431, WELLS v. PETBEE.
A Widow Electing to Take Under » Will is bound by its prori-
Biongy and cannot sell her share except under the conditions pre-
scribed.
See note, 26 Am. Dec. 505.
39 Tex. 432-447, BHODES ▼. GIBBS.
The Wife, by Instrument duly acknowledged under the statute^
can encumber her separate property for hu8\)aiid*8 debts incurreJ
prior to execution of such instrument (on rehearing).
Approved in Hall v. Dotson, 55 Tex. 524, following rule. See
note, 61 Am. Dec. 768.
A Feme Covert cannot by Simple Contract in writing, either alone
or jointly with husband, encumber her separate property except for
necessaries or lor separate property.
Approved in Harris v. Williams, 44 Tex. 126, wife's separate
property is liable for rent of residence where there is no com-
munity, and husband has no separate property; Pippen v. Wesson.
74 N. C. 444, wife cannot enter into contract with husband's con-
sent unless it is for benefit of separate estate.
39 Tex. 447-455, TOLAND v. SWEABINGEN.
Sureties on Bepleyy Bond for property seized under distress war-
rant are released if plaintiff consent to mere personal judgment.
Approved in Bond v. Carter (Tex. Civ.), 73 S. W. 45, in suit by
landlord against tenant for advances where no seizure made on dis-
tress warrant obtained and judgment was merely personal, failure
to foreclose landlord's lien was waiver thereof; Wise v. Old, 57 Tex.
515, and Haynes v. Gray, 2 Tex. Ap. Civ. 193, landlord waives liea
secured by distress warrant by taking personal judgment for rent.
39 Tex. 480-487, WALUNG y. WHEELEB.
In a Suit upon a Contract limited as to the time of its existence,
limitation runs from such limit so fixed in the contract.
Distinguished in Moline Plow Co. v. Webb, 141 U. S. 623, 12 Sup.
Ct. Bep. 102, 35 L. 881, holding statute runs from maturity where
notes provide that in default of payment of interest they are due
and collectible.
39 Tex. 493-496, JACKSON V. HILL.
Where Purchase Money Note is canceled and a new one given
to the assignee, and personal security is taken on such new note,
the vendor's lien is lost, though there may be a verbal agreement
to retain the lien.
Approved in Irvin v. Garner, 50 Tex. 55, arguendo.
39 Tex. 496-198, SMITH v. ANDEB80N.
Party Suing in IndiYidual Capacity may join himself in representa*
tive capacity if the estate he represents has an interest in the re-
covery.
Approved in Hanlin v. Baxter, 20 Kan. 136, justice of the peace
may correct bill of particulars by changing name of party plain-
tiff.
39 Tex. 499-501, LIVE OAK CO. V. HEATON.
Neither a Statement of Facts nor bill of exception can be supplied
by af&davits in the supreme court.
3 ON TEXAS BEPOBTS. 39 Tax. 501-548
▼, Harris, 90 Tei. 477, 39 8. W. 5B5, cir-
□not itiilie out transcript od affidavit that
JfleatioQ hj judge.
CT T. BiniBISS.
- Unes is dftermined hj tbe lines ae actually
lere tbiB can be ascertained, and it la im-
ice to this gives the locator less than be ii
tificate.
Streitz, 16 Neb. 253, 20 N. W. 308, Unei
case of variance between plat of lota and
leny t. Allen, 63 W. Va. 448, 60 S. E. 408,
[d to calls for monuments where there i«
1. See note, 129 Am. St. Bep. 1001, 1012.
a Call is made to run to the line of another
never reached in the actual survey, but the
er line mist&keii for it.
g T, Pooton, 51 Tei. 88, location of comer
I discrepancy in surveys. See notes, 67 Am.
ip. 1001.
!R T. FBBaiJSON.
[tie, if the plainti£F set ont specifically his
CO will bo confined to the title as alleged.
V. Denton, 1 Posey V. C, 184, following role.
» F»-amptlon the land becomes vacant, mb-
by another pre-emption claimant.
Joleman, 1 Posey U. C. 318, arguendo.
V. Ferguson, 58 Tex. 8, referring to former
V. STATE.
IndUng is bad unless it distinctly name the
3t«te, 124 Wis. 620, 103 N. W. 254, informa.
>f false representations to and receipt of
is bad in failing to specify person deceived
tained. See note, 25 Am. St. Bep. 386.
BSE T. S0BLE7.
by Pvw who, pending mit, usigned ■une,
IIB T. STATB.
tefanlt in action on bond to keep peace.
(n. B.) 30.
(TON V. TAMDT.
Ha&eM may, in good faith, prefer
ring t ■ ■ ■
S84, 585; 36 L. B. A. 346.
39 Tex. ElO-599 NOTES ON TEIAf
39 Tax. E49-6G2, SUTTON ▼. SUTTON
VeudOT'a Lien cumot b« EnforcBd
for land acd partly for pereonalty,
0( tha note given for the land.
Approved in McCaulej t. Holtl, 62
3» Tex. 662-E61, UcAUSTEE T. FAB
Iiand FuicbMOd by Huiband Aftei
fuada ta community property, and is
common with children.
See note, 86 Am. Dec. 635.
Distinguiihed In Dickers on v. Abern
busband after wife't death exchang
lands, children cannot have communit
exchanged.
Children bar* No Klght aa againEl
father'a aeparate estate if thej had h
time or communitj estate.
See note, S6 L. B. A. 41.
OMldren of Deceased Fatlior are <
two hundred acres out of individual
there was no homestead fixed at time
Bee note, 58 L. H. A. 50.
39 Tex. 661-563, BOOAKTH T. BBEZ
The Addition of the Wotd "Gold"
bj the principal and before ita dellv
sent, is a material alteration.
Approved in Bowser v. Cole, 74 Te:
of additional propertf in mortgage,
gagor'a consent invalidatei mortgage.
39 Tex. 679-589, HUB80N ▼. JUBNIl
When On»-tblrd of a Land Oertlflcai
court and the heira take posBeBaion i
topped after iapse of over twentj-ni
See note, 86 Am. Dee. 654.
Fiobat« Oourta have JnriadlcUon
of decedents, and anyone acting on
of such courtB will be protected.
Approved in Klein ecke v. Woodwi
for administration need not appear <
54 Tex. S4, presumption as to regi
elusive on collateral attack on prob
See notes, 12 Am. Dec. 372^ 67 Am. I
39 Tex. 58»-599, ALLSN T. BOOT.
A Title Bond Daly Becorded is noti
See note, 66 Am. St. Bep. 234.
A Partr Bnying » TlUe that he ki
parted with, for the purpose of prei
limitation act, is guilty of fraud, aoc
Approved in Saunders v. Silvey, 5£
able in favor of purchaser with notio
TES ON TEXAS REPORTS.
I.EBBANT T. BABTON.
ling Wilt of Baetltution in forcible d^tsiner
hough writ executed prior to urviee of injuiie-
JD injunction has regained poaBeuion.
A. 130.
J£7 T. HcALLISTEB.
or, not Being a Bona Fide Pnichuer for value,
D recorded prior converanee.
rVBS T. BASS.
Admlulble to ahow that deed absolute on ita
I conveyance in trust that grantor should have
ig life and on his death to operate as devise to
>• V. Shry, 39 Tei. 635, permitting grantor to
sideration where deed attacked by third purt;;
1 Posey U. C. 595, where a trun is declared
e purchaser buys with notice; Brison v. Brison,
It. Bep. 196, 17 Pac. 693, parol evidence is ad-
itmctive fraud iu deed. See notes, 73 Am. Dec.
sn Its Face may be shown to have been made
of vendor and corroborative e'
lit ion and delivery.
7. Kaiser, 61 Tex. 671, arguand
e Financial ClrcomstfUiceB may prefer one cred
iveyancB for that purpose must be for
EST T. HABNAGE.
rltten Instnunente is not a matter for the jury.
1 V. Cantrel (Tex. Civ.), 50 S. W. 1085.
iey tot the Collection of Debts and authorizing
pon receipt of such debts authoriies only deeds
iges, and not conveyances in general.
T, Berry, 53 Tci. 633, following rule; Frost
81 Tex. 509, 26 Am. St. Bep. 835, 17 S. W.
to sell does not include power to convey in
litchell v. Balderas, 2 Posey U. C. 20, holding
ot give right to sell lands.
Z9 Tex. 651-776 [NOTES ON TEXAS REP0ET8.
390
39 Tex. 661-«60, aALVESTON COUNTY y. TANKEBSLEY.
The Title of a Coanty to School Lands, which had been patented
to it before the adoption of the constitution of 1869, was not
devested by section 8, article 9, thereof, since that section only
affects unpatented, school lands.
Approved in Worley v. State, 48 Tex. 9, following rule; Milam
Co. V. Bateman, 54 Tex. 165, holding act of July 21, 1870, void.
39 Tex. 660-667, LEWIS y. DAVIDSON.
A Suit Originally Instituted to Recover an amount alleged to be
due on note may by amendment be changed to a suit on account.
Approved in Lewis v. Davidson, 51 Tex. 257, following rule.
39 Tex. 667-670, HALE y. DUTANT.
Where Plaintiff Sues Owner of Ferry for injuries it is sufficient
answer to show that defendant had leased ferry, and that it was
worked by lessee at time of injury.
Approved in Southern Oil Co. v. Church, 32 Tex. Civ. 327, 74 S. W.
798, one furnishing defective machinery to independent contractor
for work by latter's servants under his contract with person fur-
nishing it is not liable for injuries to contractor's servants resulting
from defect; Cunningham v. International B. B., 51 Tex. 512, 32
Am. Bep. 636, holding railroad company not liable for negligent
use of its trains by its contractors. See note, 92 Am. St.. Bep. 548.
39 Tex. 706-776, EX PARTE BODBIGUEZ.
The Constitutionality of the Law under which the applicant is
charged cannot be questioned on habeas corpus until such facts are
shown as would justify the court in holding the accused, should the
law be declared valid.
Approved in Parker v. State, 5 Tex. Ap. 583, arguendo. See note,
87 Am. St. Bep. 177.
NOTES
ON THE
^AS REPORTS.
CASES IN 40 TEXAS.
KETT T. STATE.
DlstOTlilitK Beliglou Ueetlng under article 2S4,
e amendment, was Dot vitiated bj alleging diaturb-
d vouilerouH talking and ewearing."
nea t. State, 28 Neb. 497, 44 N. W. 6S8, 7 L. B. A.
tment for distarbiog religions meeting should gen-
:re of disturbance.
iMAS T. STATE.
t Lift from Judgment of district court denying writ
U parte Coopwood, 44 Tex. 468, and Ex parte
Cr.), 57 8. W. 647, both reaffirming rule; Ex parte
I. 645, holding refusal of habeas corpus by district
and nonappealable; Ex parte Strong, 34 Tex. Cr.
6, holding dismissal of writ of habeas corpus b;
hont trial nonappealable.
mSAS T. STATE.
uted in Appllcatimt foi Oontmnanca may or may
facts in connection therewith which make them
BO be stated.
ntis T. State, 49 Tex. Cr. 401, 94 8. W. 1020, where
intinuance on account of absent witness fails to
!Dce, if testimony of witness of material character,
be grbnted; Willison v. State, 7 Tex. Ap. 400,
ee for absence of witness properly refused when
TramUlng Application for Oontlnaanca should be
exceptions, rather than in shape of order or judg.
elson T. State, 1 Tex, Ap. 44, holding refusal of
evisable without dniy reserved bill of exceptions;
Tex. Ap. 646, refusing to revise refusal of continu-
f bill of exceptions. '
t uut Objections Thereto must be incorporated in
(391)
40 Tex. 12-26
NOTES ON TEXAS REPORTS.
392
Approved in Putnam v. Putnam, 3 Ariz. 190, 24 Pac. 323, minute
entry of clerk reciting filing of motion for new trial, ruling on it
and exception does not bring matter before appellate eourt.
40 Tex. 12-18, HUDSON v. STATE.
Under Code of Procedure, objection that grand jury was not legally
constituted can be raised only by challenge to array.
Approved in Reed v. State, 1 Tex. Ap. 3, and Woods v. State,
26 Tex. Ap. 506, 10 S. W. 109, both reaffirming rule; Thomas v.
State (Tex. Cr.), 77 S. W. 802, and Cubine v. State, 44 Tex. Cr.
598, 73 S. W. 396, both holding that disqualification of juror because
he had not paid his poll tax does not constitute ground for setting
aside indictment.
Indictment Commencing, ''In the name and by the authority of
the state of Texas," and showing grand jury duly impaneled, charged
and sworn by district court, and shown by record to have been
returned into such court, shows return to court having jurisdiction.
Approved in Early v. State, 1 Tex. Ap. 264, reaffirming rule.
Charge of Court must have Reference to Evidence, and court should
instruct jury upon law applicable to ease as proved.
Approved in Holden v. State, 1 Tex. Ap. 236, Priesmuth v. State,
1 Tex. Ap. 483, Davis v. State, 2 Tex. Ap. 604, and Baker v. State,
4 Tex. Ap. 231, all reaffirming rule; Bishop v. State, 43 Tex. 402,
holding failure to charge law required by evidence ground for re-
versal; Gatlin v. State, 5 Tex. Ap. 542, holding evidence establishing
highest crime charged, instruction on lower crimes unnecessary;
Williams v. State, 7 Tex. Ap. 398, holding facts requiring it on
murder trial, court must instruct as to manslaughter; Chamberlain
V. State, 25 Tex. Ap. 401, 8 S. W. 475, holding in criminal case
court must charge law applicable to case as proved.
See note, 78 Am. Dee. 529.
In Trial for Murder, court need not instruct jury on degrees of
murder in absence of evidence making offense less than murder in
first degree or excusing homicide.
Approved in Holden v. State, 1 Tex. Ap. 235, 237, reaffirming rule;
Thomas v. State, 40 Tex. 43, holding court need only give instruc-
tions applicable to every legitimate deduction from facts; Robin-
son V. State, 3 Tex. Ap. 486, holding on trial for assault to murder,
charge on aggravated assault unnecessary unless evidence requires
it; Berry v. State, 8 Tex. Ap. 518, holding charge on murder trial
should be confined to facts established; Mace v. State, 9 Tex. Ap.
114, holding evidence establishing burglary at night, charge on
burglary in day unnecessary; Neyland v. State, 13 Tex. Ap. 547, hold-
ing charge on the other degrees unnecessary where homicide was
plainly murder.
40 Tex. 19-26, MABTIN y. STATE.
Indictment for Assault With Intent to Murder is sufficient, though
omitting word "aforethought," and words "with intent to murder"
sufficiently charge intent.
Approved in Mills v. State, 13 Tex. Ap. 491, and Territory v. Layne,
7 Mont. 229, 14 Pac. 706, both reaffirming rule; State v. Walker, 40
Tex. 486, holding precisely similar indictment sufficient; Porter v.
State, 1 Tex. Ap. 395, holding indictment charging "assault with in-
tent to murder" person sufficient; Haynes v. State, 2 Tex. Ap. 85,
'E8 ON TEXAS KEPOBTS. 40 Tex. 27-32
)ult to murder, jurj ahould be charged on facts
mg T. State, 10 Tex. Ap. 195, holding Eufficient
ifTense of counterfeiting"; Morri» v. State, 13
fficient indictment for robbery, charging intent
wning V. State. 2 Tex. Ap. 51, holding indict-
sault should allege facts congtituting offense.
opinion in Gordon v. State. 23 Tex. Ap. 219,
i3, 884, 885, majority following rule.
lit WltU Intent to Uurd«r need not allege jn-
lault was made.
T. State, 40 Tex. 119, Mav6eld v. State, 44
late, 15 Tex. Ap. 319, and State v. Tidwell, 43
rule; Wilkerson v. State, 2 Tex. Ap. £64, hold-
der need not aver part of bodj injured; Naah
, holding indictment for assault to murder with
e thereof; Burton v. Slate, 3 Tex. Ap. 411, 30
indictment good for aggravated assaalt with
ng use thereof; Hines v. State, 3 Tex. Ap. 487,
ting criminal intent matters of evidence un-
ritory v. Carrera, 6 N. M. 595, 30 Pac. 872,
assault to murder must Bhow facts constituting
laulted die.
t Okth Adminiatered to Jiuy, different from
oal caseB, ia fatal error.
I T. State, 41 Tex. 191, Smith v. State, 1 Tex.
e, 1 Tex. Ap. SIS, and Leer v. State, 2 Tex.
rule; Ewing v. State, 1 Tex. Ap. 363, holding
jury were sworn; Chambliss v. State, 2 Tex.
1 judgment reciting oath, different than statu-
to jury.
OB T. STATE.
idemeuior, district court cannot commit person
I, and at same time issue execution for fine.
Rep. 203.
STATE.
t Jnry, where evidence of ownership of stolen
that they should acquit unless satisfied beyond
nership as charged.
ID V. State, 5 Tex. Ap. 520, reafGrming rule;
383, holding evidence in theft case showing
inimal, ownership question for jury; King v.
lolding when requested by prisoner, court must
f prisoner's sanity doubtful; Boyd v. State, 18
jury should acquit, defendant in theft case
ership of property; Cunningham v. Stale, 27
486, holding charge on ownership unnecessary
tet stolen undisputed; Coleman v. State (Tex.
ding conviction not sustainable where defend-
mistalten belief of authority from the owner;
ex. Cr. 89, 63 S. W. 63£, holding proper in-
iefendant thought animal belonged to father.
). 40.
40 Tex. 32-48
NOTES ON TEXAS REPORTS.
194
Where Property is Taken Under Fair Color of Title, conviction for
theft is not sustainable.
Approved in McGee v. State, 43 Tex. 665, holding taking estrays
under forged bill of sale will not support conviction of theft; Lonza
V. State, 1 Tex. Ap. 491, holding conviction of theft of horse not sus-
tained by proving wrongful taking thereof. See note, 57 Am. Dec.
274.
In Theft, Taking must be a fraudulent taking.
See note, 88 Am. St. Rep. 604.
40 Tex. 32-36, CABPENTEB v. TBIDQBN.
Affidavit for Attachment Alleging Distinct Acts indicating fraudu-
lent intent disjunctively is insufficient.
Approved in Dunnenbaum v. Schram, 59 Tex. 282, reaffirming rule.
Distinguished in Blum v. Davis, 56 Tex. 426, holding affidavit stat-
ing "defendants about to convert property or part thereof" sufficient.
Word "Secrete," as Used in Attachment Law, means to hide prop-
erty or to put it where officer levying attachment will probably not be
able to find it.
Approved in Pearre v. Hawkins, 62 Tex. 435, adopting definition of
"secrete'* as sense in which used in statute.
In Attachment Law, word "dispose," when used in relation to prop-
erty,' has broader signification than either word "transfer" or
"secrete."
Approved in Pearre v. Hawkins, 62 Tex. 436, holding affidavit that
defendants have secreted property and disposed of property insuffi-
cient; Oray v. Edwards, 3 Tex. Civ. 346, 22 S. W. 537, holding word
"dispose" of broader meaning than word "sell."
Where Minor Pleads Minority in suit for goods sold him, plaintiff
must show that goods were obtained under false pretenses or were
necessaries.
Approved in Parsons v. Keys, 43 Tex. 559, holding minor may be
held responsible for necessaries; Harseim v. Cohen (Tex. Civ.), 25 S.
W. 978, holding minor responsible where he fraudulently induced
plaintiff to believe him of full age. See notes, 18 Am. St. Rep. 598;
18 Am. St. Rep. 633; 57 L. R. A. 685.
40 Tex. 36-46, THOMAS v. STATE.
Pleas of Former Acquittal and ConYiction are available only where
offenses are in fact same, though indictments may differ in immaterial
circumstances.
Approved in Lewis v. State, 1 Tex. Ap. 324, 325, former conviction
for assault with intent to murder is no bar to prosecution for threat
to kill; Vestal v. State, 3 Tex. Ap. 652, holding indictment charging
unlawful assembly being quashed, count charging riot may be prose-
cuted; Hirshfield v. State, 11 Tex. Ap. 215, holding former trial to
bar prosecution must be for same criminal acts. See notes, 58 Am.
Dec. 537; 92 Am. St. Rep. 106, 129.
Construction Given to Term "Jeopardy" previous to adoption of
constitution is presumed to have been adopted by constitution.
Approved in Powell v. State, 17 Tex. Ap. 351, holding legislature
without authority to give "jeopardy" meaning different from constitu-
tional meaning.
0TB8 ON TEXAS BEPOBTS. 40 Tei. 46-36
itUUal of Minor OffenM is geoer&lly no bar to
ter, unleu on trial of major offense there could
Dee. 541; 58 Am. Dec. 546; 92 Am. at. Bep. 112.
Tohnson t. State, 19 Tex. Ap. 461, S3 Am. Bep.
ia^ of aggravatei^ asaault so bar to prosecution
ibsequently dying.
fecesMu? to Buppoit Second Indictment would
to pTocuie conviction on first, plea of former
e V. State, 4 Tex. Ap. 3S, Swancoat r. State, 4
V, State, 7 Tei. Ap. 300, and Ghisham v. State,
reafflrming rule; Irvin v. State, 7 Tez. Ap. 82,
bars prosecution wlien evidence given would sua-
BCocd.
or Witness present at affray to testify as to hi*
ffeet of acta of party attacked upon accused,
ran v. State, 28 Tex. Ap. 431, 13 3. W. 853, hold-
ander's act admissible to show effect of deceaaed'e
Harrison v. State (Tei. Cr.), 2a 8. W. 284, wit-
t be struck defendant with a chair because be
itended to kill prosecutor.
rt in Felony Oaaes most give written charge,
<t, distinctly setting forth law applicable to case.
op V. State, 43 Tex. 402, and Williams v. State,
versing judgment for refusal to give instructions
ice; Cesoie v. State, 1 Tex. Ap. 26, holding court
I regarding alternative punishment for burning
twia V. State, 1 Tei. Ap. 325, holding, whether
should instruct jury where penalty is alternative.
Lccosed Is EutlUed to bene5t of reasonable doubt
1 evidence should be given in every criminal case.
sav V. State, 1 Tex. Ap. 330, and Black v. State,
b reafflrmirg rule; Hutto v. State, 7 Tex. Ap. 48,
charge that defendant is presumed innocent not
MTying Concealed Weapon no bar to prosecution
St. Bep. 143.
ENBT V. STATE.
lutmctlons asked by defendant is not error where
bereby deprived of any legal right, and charge
:o him and subHtactislly in compliance with law.
op V. State, 43 Tex. 402, holding court need only
pli<>able to case.
Id Killed Helfar of Same OAoi and having same
rchased by him, held insufficient to support con-
beifer.
Ison V. State, 16 Tex. Ap. 443, holding person sell-
, believing them his own, not guilty of theft.
-KEB V. STATE.
Inal Charge iiidge must so frame instructions a*
ication to facts.
40 Tei. 57-77 NOTES ON TEXAS BEPOETS.
Approved in Hutto v. State, 7 Tex. Ap. 49, holding insttactit
necessary on Btate of case not mads.
40 Toz. 67-60, SMITH t. DOWNTS.
Claim Against Estate, approved and allowed by executor, can
reviewed in collateral proceeding, and can opiy be inquired i
direct proceeding.
Approved in Swan v. Houee, 50 Tex. 653, reaffirming rule; I
ton T. Leavertou, 40 Tex. 223, order granting allowance for i
of widow and children cannot be impeaebed in answer to peti
compel its payment. See notes, 65 Am. Dee. 121, 126.
40 Tm. 60-67, THOMAS t. STATE.
Upon Ismio Of Insanity In Crimliial Case, teat of responsibi
whether accused bad sufficient capacity and reason to distingu
tween right and wrong and knew that act is punishable.
Approved in McClackey v. State, 5 Tex. Ap. 329, reaffirminj
Oatrisoo v. Blanton, 48 Tex. 303, holding witness allowed t
opinion at to sanity of testator mahing will; Haney v. Clark, t
96, holding wife may testify as to mental condition of husbant
making deed; Harris v. State, IS Tex. Ap. 294, holding in p
tion for theft, testimony that accused is kleptomaniac is admi
McLeod V. Btate, 31 Tex, Cr. 333, 20 S. W. 749, holding testim
nonexpert witness, well acquainted with defendant, admissible
sanity; Williams v. State, 37 Tex. Gr. 353, 39 S. W. 689, holdin
expert may give opinion of accused's sanity, based on observal
Opinions of UedlcU Men ar« Admissible in evidence to t
course of disease, consequences of wounds, and as to sanity of p
Approved in Atchison v. Thul, 32 Kun. 262, 49 Am. Sep.
Pac. 356, holding testimony of medical experts regarding efl
injury considered like other testimony.
Opinions of Nonprofessional Witnesses, together with fai
which opinions are based, are admissible in evidence on issue
sanity where intimately acquainted with person.
Approved in Warren v. State, 9 Tex. Ap. 633, Burkbard v. St
Tex. Ap. 632, Giebel v. State, 28 Tex. Ap. 171, and State v.
20 Nev. 352, 22 Pac. 218, all reaffiTming rule; Brown v. Mitel
Tei. 359, 31 S. W. 625, 36 L. R. A. 64, applying rule to testam
capacity; Pettigrcw v. State, 12 Tex. Ap. 226, holding person :
sponsible for horse stealiog who is generally considered idiol
notes, 36 Am. Dec. 407; 62 Am. Dec. 515; 38 L. B. A. 721, 730.
Opinions of Medic&l Man as to Sanity of AccmoA, formed
brief exuDtinatiuQ, are admissible upon issue of insanity, but s
deemed sat isf acta ry.
Approved in McLeod v. State, 31 Tex. Cr. 335, 20 S. W. 750, 1
expert testimony as to insanity unsatisfactory and of little we
-Wbere Insanity Is Plesided as Defsnse in felony cases, conr
instruct jury on law applicable to insanity.
Approved in Ceeure v. State, 1 Tei. Ap. 26, reaffirming rule,
40 Tex. 69-77, WILLS t. STATE.
Under indictment for TTnlawfnlly Bemovlng OatUe belong
person unknown from accustomed range, prima facie case of (
made by proving that cattle were estiays or belonged to anothi
ES ON TEXAS EEP0RT3. 40 Tei. 77-117
lAwfnlly Removing OatUa, coart should charge
to produce written conveyance ia prima facie
is illegal, it is not conclusive.
. State, 15 Tez. Ap. 65, reafGrming rale; Long
'5, boldiug erroneauB, charge precluding jury
Ce tending to exculpate defendant; Garcia v.
olding erroneous, charge that defendant, witb-
st show legality of posBessiou; Flores v. State,
ig erroneous, charge that possession of horse
|)rima facie illegal.
V. State, 1 Tez. A p. 405, cited as holding
arge was applicable to facte and no other re-
I r. SUITH.
: to OffMt Claim Against Estate in suit for
liim by administrator, he must prove himself
fund, or show character and extent of other
. Barbae, 3 Tex. Ap. Civ. 160, reaffirming rule.
SMITH.
Estate defendant cannot oflfset approved claim
showing necessity for interposition of equity
e or prevent injury to defendant.
. Barbee, 3 Tex. Ap. Civ. 160, reaffirming rule.
E V. STATE.
ta noT Conduct of Petion indicated intention
eace or otherwise violate law, be cannot be
. State, 30 Tex. Ap. 557, 28 Am. St. Bep. 950,
[>osae killing person through mistake while at-
Ity of murder. Bee note, 61 Am. Dec, Ifll.
1 reasonable mesas may be used to effect it,
in is aecesaarj to secure arrest and detention
Brown, SO Tex. 611, 16 B. W. 445, holding to
warrant person must be guilty of offense as
V. State, 14 Tex. Ap. 13S, holding policeman,
show that he acted within statute; Staples v.
holding person can be arrested without war'
ly statute.
IBIOHT T. COBLET.
! not Specially In Charge of Stock nor hiTing
opportunity to make estimate, admissible as
nes V. Walking, 59 Tex. 138, holding inadmis-
ng number of cattle on range, witness having
40 Tex. 117-121 NOTES ON TEXAS EEPOETS.
398
Approved in Bandall v. Smith, 2 Posey U. C. 397, holding charge
leaving jury to determine what is material change in contract is
erroneous.
Affidavit Filed in Appellate Court tending to discredit statement
of facts made out and signed by special judge trying case, cannot be
considered.
Approved in Galveston etc. E. E. v. Delahunty, 53 Tex. 212, re-
affirming rule; Hassler v. Kay, 1 Tex. Ap. Civ. 364, refusing to
revise rulings, if judgment be clearly proper on evidence.
Matters Which are No Part of Proceedings in cause must not be
incorporated in transcript.
Approved in Hamilton v. Saunders, 37 Tex. Civ. 142, 84 S. W. 253,
striking from transcript of record affidavits filed with clerk after
trial relating to actibn of judge on bill of exceptions.
40 Tex. 117-121, BITTICK v. STATE.
Indictment for Assault With Intent to Murder need not allege
means or instrument used, or circumstances or particular place where
assault was made.
Approved in Mayfield v. State, 44 Tex. 61, Jobe v. State, 1 Tex
Ap. 186, Porter v. State, 1 Tex. Ap. 395, Browning v. State, 2 Tex.
Ap. 50, Nash v. State, 2 Tex. Ap. 364, Burton v. State, 3 Tex. Ap.
411, 30 Am. Eep. 147, Montgomery v. State, 4 Tex. Ap. 142, and
State v. Tidwell, 43 Ark. 72, all reaffirming rule; Nelson v. State,
2 Tex. Ap. 227, holding indictment charging aggravated assault
without alleging grounds of aggravation, good for simple assault;
Morris v. State, 13 Tex. Ap. 73, holding indictment for offense under
code need only name it, without alleging facts.
Distinguished in Territory v. Carrera, 6 N. M. 595, 30 Pac. 872,
holding indictment for assault to murder must show facts constituting
murder if person dies.
Conviction of Aggravated Assault may be had under indictment
for. assault to murder, though not setting up circumstancea named
in Penal Code defining aggravated assault.
Approved in Jones v. State, 21 Tex. Ap. 351, 17 S. W. 424, and
Foreman v. State (Tex. Cr.), 57 S. W. 843, both reaffirming rule;
Davis V. State, 20 Tex. Ap. 303, holding conviction for aggravated
assault possible under indictment for assault to murder.
Though Battery Is not Charged or Proven, verdict of "guilty of
aggravated assaiUt and battery" is valid, and words "and battery"
are surplusage.
Approved in Smith v. State, 9 Tex. Ap. 316, 317, reaffirming rule;
Gladden v. State, 2 Tex. Ap. 509, holding word "close" will not
invalidate verdict fixing punishment at "imprisonment at hard labor";'
State V. Henry, 98 Me. 565, 57 Atl. 893, where respondent indicted
for felonious assault with intent to kill, being armed with dangerous
weapon, verdict of assault and battery with dangerous weapon is
valid.
Prosecution Having Introduced Witness and rested, and defense
having introduced witness contradicting former, on prosecution offer-
ing second witness corroborating first, court may refuse to allow
prosecution to introduce wife of first witness to corroborate him.
Approved in Nolen v. State, 14 Tex. Ap. 480, holding admission
of evidence before conclusion of argument within court's discre-
tion; Farris v. State, 26 Tex. Ap. 109, 9 S. W. 489, holding admis-
sion of testimony before close of argument within discretion of court.
rE3 ON TEXAS EEPOETS. 40 Tex. 124-135
0 T. BtrsaELL.
Oonact Stat«met)t of Facts before bis approval
! been omitted.
DR V. State, 10 Tex. Ap. 123, reaffirming rule.
■ake V. State, 29 Tex. Ap. 269, 15 8. W. 727,
court may autborize making and filing of state-
vacation.
»ap«t«nt Witness to Ptov« Execution of DMd
bim, to which be had omitted to affix notarial
validity of record as notice,
liar V. Peck, 2 Poaey U. C. 193, notary's cer-
acknowledgment invalid unlew nnder seal.
t Witness to Fiove that recital in return was
; or inadvertently, but not to vary return in
liatake.
lien V. Knight, 60 Tex. 40, holding sheriff's
ce on plaintiff may be impeached if false;
7 Tex. 110. 2 S, W. 454, holding title of pur-
deed independent of sheriffa return on exe-
eal, 67 Tex. 632, 4 8. W. 213, holding BheriH'a
collateral proceeding in absence of fraud;
1, 77 Tex. 576, 14 S. W. 155, holding sheriff-^
writ conclusive as to property attached; Holt
'. 365, 44 8, W. 890, holding sheriff's return
laterally attackable by parties thereto; Ma-
Mich. 113, 65 N. W. 611, holding clerk's entry
turn made on different day than dated. See
B.
itthews T. BoydstuQ (Tex. Civ.), 3] S. W. 818,
ittachment, recovery is limited to goods shown
Bve been levied.
erty to Son by person in failing eireumstancfs
ae presumption of fraud.
. Hynes, 89 Minn. 425, 95 N. W. 215, following
n (Tex. Civ.), 57 8. W. 681, holding grantee
protected only as far as purchaee price paid;
t Neb. 452, 25 N. W. S79, holding mere sale by
itive is not badge of fraud.
A Law ConaiderB BadgM of Frand and not
e submitted to jury.
n V. Heller, 78 Tex. 601, 22 Am. St. Bep. 79,
[red to Prove that he paid valne only after
grantor is shown.
V. Colorado Nat. Bank, 6 N. M. 11, 27 Pac.
ut intent, not apparent in deed, question of
ites, 75 Am. Dec. 81S, and 5S Am, St. Bep. 95.
la T. STATE.
Cor Stealing "one beef then and there being
1 dollars, state need not prove value.
v. State, 2 Tex. Ap. 351, holding "one beet
ifficient description of stolen animal in indict-
e, 50 Ark. 532, 8 S. W. 939, holding hog steal-
40 Tex. 135-153 NOTES ON TEXAS REPORTS.
400
ingj being statutory felony, indictment need not allege value; Wilson
V. State, 43 Neb. 750, 62 N. W. 210, holding information for removing
mortgaged property from state need not allege value; State v. Young,
13 Wash. 591, 43 Pac. 883, in dissenting opinion, majority holding
information charging larceny of cattle need not allege value.
Distinguished in Watts v. State, 6 Tex. Ap. 264, holding indictment
must allege value of pistol stolen; Blunt v. State, 9 Tex. Ap. 237,
holding prosecutibn must prove value of hog stolen.
40 Tex. 135-139, PBIDOEN v. WAI.KER.
Court will not Revise Verdict of Jury setting aside aale where
evidence is conflicting, since jury is judge of credibility of witness.
Approved in International etc. R. Co. *v. Johnson, 23 Tex. Civ. 192,
55 S. W. 791, applying rule in action for wrongful death caused by
derailment of train caused by misplaced switch; Gonzales v. Adoue
(Tex. Civ.), 56 S. W. 548, jury may disregard testimony of witness
although he be uncontradicted; Turner v. Grobe, 24 Tex. Civ. 557, 59
S. W. 585, holding jury judges of credibility of witnesses and facts
proved by oral testimony.
Whetlier or not Advancements were made to a deceased person is
question of fact.
Approved in Altgelt v. Elmendorf (Tex. Civ.), 84 S. W. 414, in
action against administrator to recover money loaned, where testi-
mony of plaintiff is uncontradicted, whether or not money was loaned
and to whom is for jury.
40 Tex. 147-150, COLE v. STATE.
"Injured Female" in Prosecution for Seduction is not competent
witness for prosecution over objection, but if not objected to on trial,
objection cannot be raised on appeal. ,
Approved in Stewart v. State, 9 Tex. Ap. 325, holding objection
to circumstantial evidence not available first on appeal; Daffin v.
State, 11 Tex. Ap. 79, holding objection to incompetent or inadmis-
sible testimony must be taken when illegality determined.
Court must Charge Law Applicable to Case in all felony cases,
whether requested or not, and failure so to do, whether assigned
as error or not, is reversible error.
Approved in Putman v. State, 29 Tex. Ap. 458, 25 Am. St. Rep.
741, 16 S. W. 98, reaffirming rule; Merrell v. State, 42 Tex. Cr. 25,
57 S. W. 291, holding on trial for seduction, evidence being con-
flicting, court should charge on meaning of seduction.
Promise of Marriage is Essential Element in crime of seduction,
and to establish seduction female must have yielded under promise
of marriage.
Approved in Barnes v. State, 37 Tex. Cr. 329, 39 S. W. 686, and
State V. Thornton, 108 Mo. 6.52, 18 S. W. 845, both reaffirming rule;
Norton v. State, 72 Miss. 131, 48 Am. St. Rep. 540, 16 So. 265,
holding indictment for seduction not alleging promise of marriage
to female, sufficient after verdict. .
See note, 87 Am. Dec. 408.
40 Tex. 151-153, POAO v. STATE.
Brand, Unless Recorded, is not evidence of ownership on trial for
theft of cattle.
Approved in Fisher v. State, 4 Tex. Ap. 183, and Hutto v. State,
7 Tex. Ap. 47, both reaffirming rule. See note, 11 L. R. A. (n. s.) 89.
TEXAS REPOBTS. 40 Tex.l53-10S
HOWABD.
riom BMomlDg Dormuit, and to creata
aok effect on date of passage, FebTuarr
OD, 52 Tex. 259, leaffiTmiog rule,
e, 1866, applies only to and preserveB
:ution has issued witbiii year fTom be-
aban, 1 Tex. Ap. Civ. 392, reaffirming
M E^tecaUon Bile on dormant judg-
feodant, it cannot be collaterally at-
gs.
eela, 59 Tex. 179, Hill y. Newman, 67
irick T. Flores, 71 Tex. 118, S 8. W.
X. Civ.), 34 8. W. 841, and Odum v.
3. W. 131, all reaffirming rule; Riddle
ing isBuance of execution od dormant
purchase on collateral attack; Mpador
, holding execution issued on dormant
ible; Holmes v. Buckner, 67 Tex. Ill,
er execution sale without notice defec-
ckablo; Smith v. Perkins, 81 Tex. 158,
7. SD7, holding title acquired by deed
■ally attackable unless void; Bordages
19 S. W. 44S, holding judgment fore-
n precludes collateral attack on validity
11 Tex. Civ. 370, 32 S. W. 326, holding
decree directing sale together, not eol-
V. Chandler, 27 Tex. Civ. 419, 65 8. W.
will not vitiate sale thereunder. Sea
. Dec. 668.
tted,
ny.
k, 107 Mo. 167, 17 8. W. 671, reaffirm-
In.), 65 S. W, 953, where prosecutrix
came obvious that she was pregnant.
ntaess in rape case, but credit to be
ned by jury.
e, 17 Tex. Ap. 277, and Price v. 8tate,
8, both reaffirming rule. See note, 80
1 not be sustained upon unsupported
and who did not divulge assault for
, 30 Tex. Ap. 486, 17 S. W. 932, and
r. 475, 26 S. W. 988, Kenoon v. State
. reaffirming rule; Mares v. Territory,
eflning what corroborating evidence or
here accused denies accusation; Ruston
[log uncorroborated testimony of prose-
to authorize denial of bailj Bamsey t.
40 Tex. 162-187 NOTES ON TEXAS EEPORTS.
402
State (Tex. Or.), 63 S. W. 875," holding not error to refusal to charge
on effect of testimony, party not complaining of injury.
Distinguished in Coates v. State, 2 Tex. Ap. 19. holding corrobo-
rated testimony of prosecutrix and declarations of defendant support
conviction of rape.
Limited in State v. Marcks, 140 Mo. 665, 41 S. W. 975, holding
prosecutrix and defendant in rape case testifying, jury must deter-
mine facts.
40 Tex. 162-187, BLACK v. EPPEBSON.
Where Appellant Fails to File Becord within forty days after per-
fection of appeal, appellee may acknowledge service of citation, and
bring up record and submit case as delay case for revision on merits.
Approved in Wilson v. Adams, 50 Tex. 14, holding appellant fail-
ing to procure service of citation, appellee may acknowledge service
and secure affirmance.
Every Presumption must be Indulged in favor of regularity in
things necessary to jurisdiction of court having exclusive jurisdic-
tion of subject.
See note, 86 Am. Dec. 653.
On Judgment of Affirmance, where surety becomes liable on appeal
bond, surety may voluntarily pay judgment and become subrogated
to rights of creditor.
Approved in Faires v. Cockerell, 88 Tex. 437, 31 S. W. 194, 28 L.
B. A. 528, reaffirming rule; White v. Downs, 40 Tex. 235, holding sure-
ties paying note for purchase price of land subrogated to vendor's
lien; Moore v. Moore (Tex. Civ.), 52 S. W. 566, sureties are subro-
gated to extent of their payment on the judgment and execution to
that extent is valid.
District Court cannot Issue Execution until mandate from supreme
court is filed, hence filing of mandate is presumed where execution
has issued.
Approved in Hutcheson v. Clipper, 2 Posey U. C. 552, reaffirming
rule.
Act of February 14, 1860, and Act of November 9, 1866, extended
vitality of district court judgments for ten years between executions.
Distinguished in Willis v. Stroud, 67 Tex. 519, 3 S. W. 733, holding
limitation runs against judgment regardless of when it becomes dor-
mant.
Act of February 14, 1860, to prevent judgments from becoming dor-
mant, and to create and preserve judgment liens, is intended to ex-
tend time of issuing execution after execution has issued within
year.
Approved in Sampson v. Wyett, 49 Tex. 632, and Gabel v. Mc-
Mahan, 1 Tex. Ap. Civ. 392, both reaffirming rule.
Section 2, Act of February 14, 1860, provides that no lien shall at-
tach unless judgment is recorded.
Approved in Barron v. Thompson, 54 Tex. 243, holding, though
judgment not dormant, lien may be lost by neglect in enforcing it.
Judgment Lien Preserved by Issuance of Executions until passage
of stay laws was continued until stay laws were declared unconsti-
tutional.
Approved in Cravens v. Wilson, 48 Tex. 338, holding stay law ex-
cused execution on judgment rendered in 1865, until declared uncon-
stitutional. See note, 98 Am. Dec. 511.
i ON TEXAS REPORTS. 40 Tex. 188-204
tead and acquire ftnothei with pracfeds witb-
to gsnsrBl debts or lieDB not made specific
T. Vejei, 76 Mo. 336, bolding; no judgment
nto hands of vendee; Rogers v. First Nat.
holding judgment lien daei not attarh to
ebtor; Morgan t. Bentbein, 10 8. D. 052, 66
W. 204, holding, under atatute, homeetead u
igainst debtor in grantee's poesessioD. Se«
34 Am. St. B«p. 490.
ir V. Sntherland, S4 N. H. 487, 20 Am. Rep.
tinat debtor claiming homeetead good agaiaet
V. STATE,
Oaao will not be reversed for error in over-
lance, unless exceptions taken.
:. Tty. V. McAllister, 59 Tex. 361. Nelson v.
iMahon v. State, I Tex. Ap. 103, and Hoi lis
all reals rming rule.
1 OrlnUnal Trial cannot be explained except
designed to kill child, charge need nut give
jes of murder.
State, 1 Tex. Ap. 237, and Eines v. State, S
rming rale; Gatlin v. State, 5 Tex. Ap. .^42,
bing higher grade, charge on lower grades of
land V. State, 13 Tex. Ap. 547, holding charge
i&ij where evidence establishes murder.
lALL T. STATE.
cmy court must distinetlj set forth the law
eloped by laets proved on trial.
State, 42 Tex. 275, Johnson v. State, 1 Tex.
te, 3 Tex, Ap, 319, Francis v. State, 7 Tex.
7. State, 9 Tex. Ap. 114, all reafl!irming ni|p;
Ap. 26, holding court should charge jury on
or burning stock of fodder; Sutton v. ^tate,
court must charge upon law of self-defeDBU
bles V. State, 5 Tex. Ap. 358, holding charge
irminatioii whether case is manslaughter or
»in T. State, 10 Tex. Ap. 703, holding evi-
isanitj, court must ehargs thereon; Luera v.
holding court must charge on manslaughter,
under passioni Boiiy v. State, 14 Tex. Ap.
f-defense, when involved by proof, must be
'. State, 42 Tex. Cr. 307^ 62 S. W. 76S. bold-
D law of case not reversible error unless ex-
Otaarg* IiftW applicable to felony case as
lereto is taken at trial and set up in bill of
use for reversal.
State, 43 Tex. 397, 402, reaffirming rule; Vin-
p. 304, holding court will reverse judgment
prejudiced if charge excepted to when made.
d V. State, 9 Tex. Ap. 26, holding e
rhen made, no ground for reversaL
40 Tei. 204-237 NOTES ON TEXAS REPORTS.
Oonrt Staonld Anticipate Oondiulon which jury might re«<
felony case from facts proved, and initruct «■ to what facts '
cooatitute or juBtify offense.
Approved in Ceaure v. State, 1 Tex. Ap. 24, reaffinning rale;
kini v. State (Tex. Cr.), 50 B. W. 3S2, where facts juBtifled char
manslaughter.
WLera Evidence !■ Conflicting and points to different concla
some of which would mitigate offense, court shoald iiwtmct
mitigating circumstanceB reducing offeoBe to lower degree.
Approved in Reed v. State, 9 Tex. Ap. 320, reaffirmiag rate;
shaw V. State (Tex. Cr.), 50 3. W, 3B0, where there was evidenet
defendant thought the gun was not loaded, and that the homicid
accident, charge on negligent homicide should be given. See
5 L. R. A. (n. B.) 326.
Miscellaneous. — Searc}' v. State, 1 Tex. Ap. 414, mifcited,
a misprint for 41 Tex. 109.
40 Tex. 204-218, BSIDaES v. RETNOLDS.
Contract to Pay In Oold or Silver Coin will be enforced for
and silver coin, according to intentloa of parties.
Approved in Irvia v. Qamer, 50 Tax. 56, holding in suit on
payable in gold coin verdict must be for gold coin.
In Action on Parchase Honey Note and to foreclose vendor's
where complaint describes land, judgment on default may be
witbont jury.
See note, 20 L. R. A. (n. s.) 30.
40 Tax. 218-22B, IiBAVEKTON T. LEAVEBTON.
Allowance for Support of Widow of Intestate made by court a
viouB term is judgment impeachable only by direct proceedin.
that purpose.
Approved in Bopp v. Hansford, 18 Tex. Civ. 345, 40 8. W. 747,
ing judgment Axing amount due by guardian conclusive on gna
and BuretioB.
40 Tex. 225-237, WHITE v. DOWNa
Opinion and Reasoning for Judgment are no part of jndgmeni
judgment remanding case for new trial is not final or conclusi'
parties.
Approved in Meyers v. Dittmar, 47 Tex. 376, holding propositi
law announced in case on appeal not law of case on second a;
San Roman v. Watson, 54 Tex. 260, affirming judgment though r
assigned for it wrong; Burns v. Ledbetter, 56 Tex. 283, holdinf
ttier decision not necessarily law of case; Lowell v. Ball, 58 Tex
holding supreme court will not always follow previous rulings in
Trankland v. Cassaday, 62 Tex. 422, holding facts not being
rially changed, rulings on former appeal generally stand; Oroe
V. Qolden (Tax. Sup.), 7 S. W. 366, where decision not in bar
with preceding or following cases was not upheld as stare dt
although not expressly overruled. See note, 34 L. R, A. 336.
VandOT'e Lien Arlsea by Implication as natural equity creating
■tructive trust in vendee to pay for land, and results from sa
credit without security.
Approved in Joiner v. Perkins, 59 Tez. 303, Marshall v. Mai
(Tex. Civ.), 42 S. W. 354, both reafSrmiog rule; Perry t. Woodsc
8 ON TEXAS REPOBTS. 43 Tex. 238-386
1 wonitii subject to rule that land bound by
int; Neese v. Kiley, 77 Tei. 351, 14 8. W. 66,
'. land carriea lien, though not made to veo-
.. 247.
1 AU BMp«cta Sune ai ezprees lien reserved
■ftgage, or deed of trust, and ia not attended
on aaeignment of debt.
>auve, 49 Tex. 83, holding doctrine of waiTer
ice of Becuritj inapplicable to lien reeerred
>f Kota seenred hy vandoi*! lien, payable to
etc. By. V. Bremond, M Tei, 183, 18 S. W.
4 Tex. 470, and Davis v. Wrigley, 1 Tex. Ap.
ule; Flanagan v. CuBhman, 48 Tex. 244, hold-
ured bj vendor's lien carries lien unless ex-
V. Childera, 4 N. M. (Johns.) 354. 5 N. M.
balding assignee of note secured by vendor's
ee notea, 70 Am. Dec. 330; 13 L. R. A. 188.
1 NotM Sacniwl \ty Vendofs L1«II is trana-
right to priority of payment over other notes
T. Blount, 22 Tex. Civ. 498, 55 8. W. 528,
an T. Downs, 55 Tex. 247, holding there is
gnment to several notes secured by vendor's
NS T. OOOE.
r that he had no vendor's lien are admissible
to enforce each lien, where aaeh declarations
eodee to believe the land free from such
v. Crosby (Tex. Civ.), 28 8. W. 140, a pur-
ity who had represented to mortgagee that
; the land to be mortgaged ia also estopped
ras not a bona flde purchaser.
laanes to Jury in clear and proper form on
. Burns, 70 Tex, 355, 8 8. W. 51, holding
in submitting special issues sufficient; La
p. Civ. 745, and Mc8han t. Myers, 1 Posey
{ judgment must be supported by verdict
dent Oonatdsntfon, in ignorance of vendor'!
rs, is protected.
34.
roUGH V
» Separate Notes for Iittid to each devisee,
on on judgment on one nolo is entitled to
tioned te that of note to entire purchase
40 Tex. 251-289 NOTES ON TEXAS EEPORTS.
406
Approved in Robertson v. Ouerin, 50 Tex. 323, holding holder
of joint note for purchase money unaffected by foreclosure on an-
other. See note, 37 L. E. A. 751.
Distinguished in Turner t. Phelps, 46 Tex. 260, holding purchaser
under judgment of one joint vendor, others being paid, takes title
to whole tract.
Under Wills Anthorizing Executors to Administer Estates inde-
pendently of probate court, executors may do anything for settle-
ment of estate that they could do under order of court.
Approved in Allen v. Von Rosenberg (Tex. Sup.), 16 S. W. 1098,
Williams v. Howard, 10 Tqx. Civ. 533, 31 S. W. 838, and Stevenson
V. Roberts, 25 Tex. Civ. 581, 582, 64 S. W. 233, all reaffirming rule;
Holmes v. Johns, 56 Tex. 52, holding probate court without jurisdic-
tion of estate, executors being authorized to settle claims; Roy v.
Whitaker, 92 Tex. 356, 48 8. W. 897, holding under article 1995,
Revised Statutes, executor is authorized to settle estate; Gillespie
V. Crawford (Tex. Civ.), 42 S. W. 624, independent executor may
determine for himself when to surrender the estate to devisees, in
absence of contrary instructions in the will.
Judgment of. Foreclosure cannot comprehend the right of anyone
not a party.
Approved in Soule v. Ratcliff, 33 Tex. Civ. 261, 76 S. W. 584, in
action on vendor's lien note, where holder of another note given to
secure same purchase money was not made a party, judgment that
such note should be paid out of proceeds of foreclosure sale was
error.
Though Purchaser at Execution Sale Against Executor after
property sold takes no title, he is subrogated to rights of creditor,
and may pursue assets in hands of devisees.
Approved in Jones v. Smith, 55 Tex. 387, reaffirming rule; Burns
V. Ledbetter, 54 Tex. 385, holding judgment being valid, bona fide
purchaser satisfying judgment acquires lien for amount; Allen v.
Von Rosenberg (Tex. Sup.), 16 8. W. 1099, creditor's rights, if law-
fully enforced, are superior to those of a devisee; Halsey t. Jones,
86 Tex. 491, 25 S. W. 697, holding purchaser of land must reim-
burse administrator for debts against estate; Faires v. Cockerell,
88 Tex. 437, 31 S. W. 194, 28 L. R. A. 528, holding person paying
vendor's lien on homestead subrogated to creditor's lien. See notes,
99 Am. St. Rep. 489; 69 L. R. A. 49.
In Absence of Agreement to Contrary, none of holders of ex-
press liens or mortgages on land whose debts are due at same time
is given priority, and all are necessary parties to suit to foreclose
any lien.
Approved in Salmon v. Downs, 55 Tex. 247, holding no priority
exists among holders of several notes given for land; dissenting
opinion in Douglass v. Blount, 95 Tex. 389, 67 S. W. 494, 58 L. R. A.
699, majority holding that where vendor takes purchase money
notes secured by lien and assigns one of them, which is foreclosed
in action to which vendor is not a party, purchaser at sale takes
property subject to lien of notes remaining in vendor's hands; Dean
V. Hudson, 1 Posey U. C. 371, holding holder of second note for pur-
chase money unaffected by suit on other. See note, 37 L. R. A. 753.
Distinguished in Douglass v. Blount, 22 Tex. Civ. 496, 55 S. W.
528, holding assignee of joint note for purchase money takes priority
over others.
ES ON TEXAS EEPOHTS. 40 Tei. 289-324
•mal NotM given b^ executor to devieeea
who took posspssion of part of land after
icted hj other tenanti io common.
751.
TtBLD V. STATE.
itl Cua can appeal onlj from jadgment of
^ks T. State, 43 Tez. SS7, Fitzgerald v. EvaoB,
State, 1 Tez. Ap. 410, Butler v. State, 1
V. State, S Tei. Ap. 302, and Labbaite v.
all TeafBTming rule; Butler v. State, 2 Tex.
ppeal lies from judgment overruling motion
V. State, 3 Tez. Ap. 47, holding appeal not
jnient denying new trial; Carenell v. Crow-
.7, I6 S. W. 172, holding do appeal liee unlesa
:ment; Pate v. State, 21 Tei. Ap. 198, 17 S.
ea lies from judgment unleBs allowing plea
t, 28 L. B. A. 628.
tlon Bendarod consists of facts judicially
ler of ascertaining them, entered of reoord,
it pronouncing legal consequences thereof,
r. State, 3 Tex. Ap. 48, and Pennington v. State,
affirming rule; Corley v. Corley, 53 W. Ta. 146.
ed on verdict of jury on issue out of chancery,
recover costs of plaintiff, ia not final appeal-
ite, 60 Am. Dec. 438.
i^IAZ V. SEBNA.
(aUons of Foielgm Law governing contract
fori will govern.
m Cent. By. v. Olmstead (Tex. Civ.), 00
mie; James v. James, 81 Tex. 381, 16 S. W.
WB prevail where law of Indian nation not
Ige, 89 Tex. 71, 33 S. W. 222, holding, in
eign laws presumed same as Texas laws;
. Graham, 12 Tex, CJv. 572, 34 8. W. 138.
laws, not being proved different, presumed
laws of foreign states on
slon of Stamp from instmment executed in
invalid under laws of that country not avail-
tition which does not aver foreign law.
. 58; 48 L. B. A. 318.
lN T. SEBNA.
let Jnry that possession of letter of credit
that drawer had money on which he could
ihowed deposit withdrawn.
. 421.
Spadal Contracts, guaranties and mandates,
go liable instruments.
40 Tex. 324-361 NOTES ON TEXAS REPORTS.
40S
Approved in Sargent v. Ranger, 1 Tex. Ap. Civ. 330, holding per-
son advancing money on written authority must determine whether
authority still exists.
40 Tex. 324-333, HABMON V. BYNXTM.
Moneyed Judgment Against Administrator in favor of devisees,
though giving administrator privilege of showing payment during'
term, is final judgment.
Approved in Linn v. Arambould, 55 Tex. 623, holding no final
judgment rendered until all issues disposed of.
Final Decree cannot be Amended after expiration of term to cor-
rect error involving merits.
Approved in McLane v. San Antonio Nat. Bank (Tex. Civ.), 68
8. W. 66, bill filed after expiration of term to reform judgment on
ground of fraud is not motion for correction by judge of record.
Fact That Mother of Children of husband's second marriage left
homestead and permitted children of first wife to occupy it does
not deprive former of pro rata share of value of use and occupation
of homestead appropriated wholly to support of children of first
marriage.
See note, 56 L. R. A. 82.
40 Tex. 333-346, BOBINSON v. DAVENPOBT. .
Petition for Specific Performance of Parol Contract to convey
land, alleging payment, possession, and improvements made and de-
fendant's refusal to perform, is sufficient.
Approved in Ponce v. McWhorter, 50 Tex. 571, holding parol sale
of land enforceable where purchase money paid and improvements
made; Ward v. Stuart, 62 Tex. 335, holding payment insufficient to
justify specific performance of contract of sale of land; Bradley
V. Owsley, 74 Tex. 71, 11 S. W. 1052, holding verbal contract for
sale of land enforceable where otherwise would work fraud; Polk
V. Kyser, 21 Tex. Civ. 680, 53 S. W. 90, holding payment of price,
valuable improv*ements, and possession together pass title under
parol sale.
Oeneral Demurrer Pnts in Question sufficiency of facts alleged
but not manner of stating them.
Approved in Schwartz v. B. C. Evans Co., 75 Tex. 200, 12 S.
W. 863, holding special plea, stating defense, good on general de-
murrer, though defense defectively pleaded; Erie Telegraph Co. v.
Grimes, 82 Tex. 94, 17 S. W. 832, holding defective statement of
cause of action not subject to general demurrer; Northwestern Nat.
Ins. Co. V. Woodward, 18 Tex. Civ. 499, 45 S. W. 187, holding plead-
ing stating cause of action or defense good on general demurrer.
40 Tex. 346-361, HOUSE V. WILUAMS.
Supreme Court has Jurisdiction to affirm judgment on certificate
only when full compliance with all requirements of constitution
and statutes is shown.
Approved in Houston etc. R. R. v. Oreenwood, 40 Tex. 365, reaf-
firming rule.
Motion to Affirm on certificate must be accompanied by copy of
judgment.
Approved in Supreme Council v. Anderson, 36 Tex. Civ. 615, 83
S. W. 208, same rule applies to affirmance on certificate by court of
civil appeals.
ON TEXAS EBPORTa. 40 Tex. 361-391
>N ETC. BT. 00. ▼. GKBEITWOOD.
ight np OQ eertiflcate, traascript must ibow
iJovncil T. Andersoii, 36 Tex. Civ. 615, 83
of civil appeal* jurisdiction to stGrm on
ate must contain copy of judgtneDt and
1 V. rtLES.
Dt Berise AcUon of Cotirt in overroling
less bill of exceptions is taken.
etc. Ey. Co. v. Bowles, 32 Tex. Civ. 124,
By. T. McAllister, 59 Tex. 361, Contreraa
and Strain v. Greer Co. (Tex. Sup.), 19
m V. Washington, IG Tex. Civ. 505, 41 S.
nee of Btatement of facte, judgment pre-
Btent testimony.
hat verdict is not supported by evidence
irithoiit statement of facts unless record
ndation of action.
V. McGowan, 2 Posey U. C. 290, Willis
S. W. 379, both reaffirming rule.
lOK T. MEBEDITH.
. Held to b« ExcossiT« after reversal on
affirmance.
etc. Ry. V. Wescb, 85 Tex. 599, 22 8. W.
.elis, 58 Tex. 276, both reaffirming judg-
tmittitur of damages within given time;
lelin, 86 Tex. 454, 25 8. W. 408, showing
filing remittitur and affirming judgment;
(. Ap. Civ. 24, reaffirming rule where re-
letition for writ of error filed; Sanger v.
18, holding filing remittitur on motion for
ire affirmance of judgment.
ION V. OBEBTHIEB.
; Aside Homestead of two hundred acres
sd by estate, tliongh purchase money un-
. McDaniel, 46 Hex. 314, holding land cott-
nestead rights though notes for purchase
i SatUng Aside Homestead protects family
set aside in direct proceeding.
V. Denton, 1 Posey V. C. 184, holding pro-
tie of land set aside as homestead.
rator's Sale paying vendor's claim against
y is subrogated to vendor's rights.
Attoway, 46 Tex. Ill, holding purchaser
ited to judgment creditor's rights against
40 Tex. 392-438 NOTES ON TEXAS REPORTS.
410
land; Jemison v. Halbert, 47 Tex. 189, holding purchaser under ex-
ecution subrogated only to judgment creditor's rights; Cummins t.
Denton, 1 Posey U. C. 185, holding purchasers at administratrix's
sale may assert any rights which she could; Western Mortgage etc.
Co. y. Ganzer, 63 Fed. 660, in dissenting opinion, majority holding
person paying off vendor's lien on. homestead subrogated to lien.
Distinguished in Turner v. Phelps, 46 Tex. 261, holding purchaser
on foreclosure of joint vendor's lien takes title as against mortgagee
with notice; Burns v. Ledbetter, 56 Tex. 286, holding person sub-
rogated to judgment lien bearing ten per cent interest entitled to
legal rate only.
County Court is Without Authority to set aside to widow land hav-
ing valid lien thereon.
Approved in Wade v. Freese (Tex. Civ.), 71 S. W. 70, lienholder
entitled to have order erroneously awarding land to widow declared
void and procure order to sell same.
Miscellaneous. — Mathis v. Oberthier, 50 Tex. 329, referring to for-
mer appeal for statement of law and facts of case at that time.
40 Tex. 392-395, CUNDIFF v. McLEAK.
Miscellaneous. — Cundiff v. McLean (Tex. Sup.), 8 S. W, 44, refer-
ring to former appeal on question of facts.
40 Tex. 395-399, CBAWFOKD V. HAGOOD.
Verdict and Judgment can be Rendered for Oold only upon allega-
tion and proof of contract to pay in gold.
Approved in Guadalupe Co. v. Johnston, 1 Tex. Civ. 716, 20 S. W.
834, holding petition alleging contract, but not legal effect, bad on
general demurrer.
40 Tex. 399-410, BEALE ▼. BTAN.
Plea In Abatement is Deemed Waived unless attention of court
called to it and ruling obtained thereon.
Approved in Grand Lodge v. Stumpf, 24 Tex. Civ. 310, 58 a W.
840, reaffirming rule.
40 Tex. 410-415, COBUBN V. FOE.
Court is not Bound to Notice errors not properly assigned.
Approved in Putnam v. Putnam, 3 Ariz. 187, 24 Pac. 322, state-
ment not signed by appellant pr his attorney nor filed with clerk
of lower court before taking out transcript, not proper assignment
of errors.
Objections Going to Foundation of Action are considered on appeal
though not assigned as error, where matters of error are obvious.
Approved in Parker v. Dekle, 46 Fla. 455, 35 So. 4, applying rule
where in action on note providing for attorney's fees court in render-
ing judgment for plaintiff instructed clerk to assess damages and to
enter final judgment therefor, and latter heard testimony as to what
was reasonable attorney's fees.
40 Tex. 416-438, BEAZLET ▼. DENSON.
Construction of Constitution that contest over probate of will
must be tried by jury adopted and acted upon.
Approved in Cockrill v. Cox, 65 Tex. 673, holding party to con-
test upon probate of will entitled to jury trial.
} ON TEXAS BEPOSTS. 10 Tei. 43fl-*W
r Tnnu npon Eironeoai Instruction, and
eonseqiieiitly fouoded oa error, judgment
irgs QOt objected to at trial.
\ Coz, 65 Tex. 676, holding error in omit-
ts if complainant "speculates" on verdict;
rispe, SI Tex. 519, 17 8. W. 48, holding
reversible error where complaiDant apectt-
ttc. E7. V. Gay, se Tei. 609, 28 8. W. 613,
rge not reversible error ualesB proper in-
mei; Harris t. Flowers, 21 Tex. Civ. 672,
vhere ehargs states one phase of question,
9d OD otber. See note, 84 Am. Dec. 619.
;odeheaver, 28 W. Vs. 288, holding errors
inlesB objected t« when made.
t fails to cover whole law of the ease,
ation to tbe particular case, objection to it
I to have judgment reviewed.
1 V. Hawkins (Tei. Civ.), 39 S. W. 187,
Tex. Civ,), 49 S. W. 115, both holding error
large should be called to attention of trial.
ctioo. See note, 36 L. B. A. 726.
vt in trials directly upon probate of wills
. Stagner, 55 Tex. 397, holding burden of
will to set aside probate; Prather v. Mc-
8. W. 658, holding burden on proponents
istator when making codicU; Steinknebler
12, 81 N. E. 485, 15 L. B. A. (n. a.) 673,
! will to prove testamentary capacity where
iasiou to probate. See note, IT L. B. A. 495.
ity of TwAator is essential to establishment
V. Pedawa, 30 Neb. 434, 46 N. W. 652,
prove execution of will aod capacity of
B. A. 725.
w % Stzonger, who is a devisee in a second
:est over probating of the several wills of
D V. atephenson, 6 Tex. Civ. 632, 25 S. W.
interested party in a will contest does not
ing Trial and submitting proposition regard-
conduct as warrants reversal.
Levy (Tex. Civ.), 57 3. W. 54, reversing
son making remark on case to juror during
V. Hearne, 75 Tex. 252, 12 3. W. 40, cited
tion that a corporation may waive its priv-
ippointment of receiver instituted in county
ISOH T. HOIJ.T.
isd where there is no assignment of e
id are deemed waived.
40 Tex. 410-460 NOTES ON TEXAS KEP0BT3.
Approved in Oibeon v. Schoolcraft, 1 Tex. Ap. Civ. 25,
pnrportsd state m en t of facts not approved or certiGed b; j
sufficient.
FaUnro to FUs Aaslgmnent of Eirors justifies eourt in i
judgment.
Approved in Putnam t. Pntoam, 3 Ariz. 187, 24 Pac. 322, )
statement copied into transcript insufficient assiKnmsnt of en
40 Tex. 440-446, KENT T. BEATT.
Fnrctiaser of Land Adjoining HomMt«ad previoualy v
nnder execution against owners, is not affected bj subsequ
vey of homestead including tract told.
See note, 67 Am. Dec. 645.
MiBcellareous.— Cited in Ayers v. Shaekey, 2 Posey U. C.
statement of case to paint that husband and wife may curta
stead by devoting portion to other purposes.
40 Tex: 447-460, DIBSEIiL V, SMITH.
Gnardlui cumot Bele&se Security belonging to ward, yi
guardian pays debt to ward and becomes owner of debt, hit
is good in favor of those acting upon it.
See notes, 98 Am. Dec. 52S; 89 Am. St. Bep. 291.
It Seeimi Tbat a Vendot's I>ien on land is not lost by t
sequent taking of personal security.
Approved in Jackson v. Ivory (Tex. Civ.), 30 S. W. 718, e:
of deed of trust to secure purchase money note does not «
impair tbe original vendor's lien.
40 TflZ. 451-460, 19 Am. Bep. 32, EX PABTE EZEI.T..
Under BUI of BiglitB, the only prisoners having a right
are those charged with offenses before their trial and coi
Approved in United States v. HudsOD, 65 Fed. 75, res
rule; Ei parte Schwartz, 2 Tei. Ap, 30, holding eonstitutio
vision guaranteeing bail relates to accused person before ti
conviction; Ex parte Erwln, 7 Tex. Ap. 295, holding court ma
prisoner to bail while habeas corpus proceedings pending;
State, 42 Neb. 420, 422, 60 N. W. 961, 962, holding ball is no
able pending appeal from judgment of conviction.
DistiDguisbed in State v. Satterwhite, 20 S. C. 540, holdii
of sessions may admit prisoner to bail even after conviction.
Habeas Corpus wUl not be Oranted where application sh
plicant restrained by sheriff, after trial and conviction of
by district conrt.
Approved in Ei parte Poller, IS Tei. Ap. 242, and Ei par
21 Tei, Ap. 191, 17 8. W. 461, both realBrming rule; E
Branch, 36 Tex. Ap. 3S5, 37 S. W. 421, holding habeas cor
allowable after conviction in lower court unless judgmen
Ex parte Japan, 36 Tex. Ap. 482, 38 S. W. 44, holding habeai
not allowable after conviction unless judgment void; Ei pat
thews (Tex. Cr.), 49 S. W. 624, Ex parte Eckhart (Tex. Cr.
W. 350, both holding writ of habeas corpus should only be
tor want of jurisdiction in tbe eourt and not for Irregularll
parte Douthitt (Tex. Cr.), 63 8, W. 131, denying habeas
after conviction unless conviction absolutely loid. See note,
Dec. 41.
1 ON TEXAS REPORTS. 40 Tex. 46S-«91
can only be granted where lemeij at law
LAN V. TEXAS ETC. B. B.
' Juiiadlctloii of Appeal unleit appeal bond
'ithin time prescribed by law.
Oij, 99 Tex. 606, 92 S. W. 2S6, Betting
me and appellate conrtB where it appeared
no appeal bond had been given on appeal
lort of civil appeals; The Presto, 93 Fed.
ough pauper, must giTe appeal bond anlesa
tTE HCQBEW.
to JnrlBdlctloii to trj criminal ease wbere
exceeds one hundred dollars.
lewhonB, 41 Tex. 186, reafSrmiug rale; Neil
ding juBtiee of peace without jurisdiction
assault. See note, S5 Am. St. Bep. 267.
Granted wbere juBtiee court has not bound
)urt, but has proceeded to tiy ease of which
V. STATE.
t Ooiulder Emwa in overruling application
sal to amend judgment unless record con-
■T bill of exceptions.
Rj. T. UcAllistcr, S9 Tex. 361, reaffirming
[^ V. STATE.
ir of Ooirectneaa of Bnling of Oooit over-
lance, unless contrary is shown by bill of
T. State, 1 Tex. Ap. 671, holding refusal
ecalted not error unless testimony proved
m. Dec. 640.
T. WALKER.
Witb Intent to Murder alleging asBault
pistol, a deadly weapon, with intent felooi-
> ret bought to kill and murder such person,
ttate, 1 Tex. Ap. 398, Nash v. State, 2 Tex.
tate, 3 Tex. Ap. 411, 30 Am. Eep. 147, aU
v. State, 44 Tex. 61, holding indictment
d not name weapon, or how used.
UNO r. STATE.
ipe, character of prosecutrix for chastity
neral evidence of her reputation, but not
•10 Tax 486-4S4 NOTES ON TEXAS BEP0BT8. 414
bf evidence of particular acta or hj eTidcoee of erimiiia] eoDnee-
tioD with others than defendant.
Approved in Dorse/ v. State, 1 Tex, Ap. 35, JeukiiiE v. State, 1
Tex. Ap. 354, Mayo v. 8tat«, 7 Tex. Ap. 349. Lawaon v. State, 17
Tex. Ap. 302, Wilson v. State, 17 Tex. Ap. 533, 534, aod State v.
Campbell, 20 Nav. 125, 17 Pac. 021, all reaffirming rule; State v.
Ogdea, 3S Or. 210, 65 Pac. 454, prosecutrix in rape case cannot be
asked if she had sexual intercourse witb "anyone" prior to commis-
■ion of alleged crime. See note, 14 L. B. A. (n. a.) 724.
Distinguished in Knowles v. State, 44 Tex. Cr. 32S, 72 S. W. 400,
on prosecution for rape, evidence of acts of imchastity with others
admissible to refute testimony of prosecutrix that defeD<laDt was
father of her child.
B»c«iit OomplaJnta of Piosscutriz and her appearance ibortly after
alleged injury are admissible as original evidence, but particulars
of complaint and detailed atatemeats of prosecutrix are not except
BB supporting veracity of witness.
Approved in Lawson v. State, 17 Tex, Ap. 303, Lights v. State, 21
Tax. Ap. 314, 17 8. W. 42B, HoUt v. State, 23 Tex. Ap. 7, 3 S. W.
757, Caudle v. Slate, 34 Tex. Cr. 27, 28 S. W. 810, Beddiek v. State,
3S Tex. Ct. 46S, 60 Am. St. Bep. 59, 34 8. W. 275, Territory v. Mal-
donado, 0 N. M. 634, 58 Pac. 351, and State v. Sargent, 32 Or. 113,
49 Pac. 890, all reaffirming rale; Trimble v. Territory of Ariiona,
8 Ariz. 377, 71 Pac. 932, delay on part of prosecutrix to make com-
plaiot of outrage may be considered in the light of aurroundiDg
circumstances; Territory v. Maldonado, 9 N. M. 634, SS Pac. 351,
on prosecution for rape, evidence must be confined to proof of fact
that complaint was made; Stats v. Imlay, 22 Utah, 161, 61 Pae. 559.
in prosecution for asaautt with intent to rape, declarations of in-
jured female made immediately after injury are admissible in cor-
roboration of evidence of prosecutrix, but not to prove oCFense; State
V. Neel, 21 Utah, 157, 60 Pac. 311, in prosecution for rape prosecu-
trix may, oo examination in chief, testify to fact ttiat she made
complaint, and to whom and where such complaint made, but not
the particulars- thereof; Veal v. State, 8 Tex. Ap. 476, holding on
trial for aggravated assault on female, her complaints shortly after-
ward admissible; Rhea v. State, 30 Tex. Ap. 485, 17 8. W. 932.
holding failure to make complaint circumstance tending to discredit
testimony of prosecutrix; Castillo v. State, 31 Tex. Cr. 150, 37 Am.
St. Bep. 795, 19 S. W. 893, holding declarations of assaulted child
immediately after assault admissible as res gestae; Boberson v.
State (Tei. Cr.), 49 8. W. 400, where child raped while picking cot-
ton, and whipped by defendant into submission, told her mother on
reaching home; Bamsey v. State (Tex. Cr.), 63 8< W. 875. holding
failure to charge on effect of failure to make outcry not reversible
error. See note, 80 Am. Dec. 371.
Distinguished in People v. Gage, 62 Mich. 274, 4 Am. St. Bep. 655,
28 N. W. S36, holding complaints of yonng child admissible, though
made long after assault.
In All Cases of Feloii7, judge must deliver written charge dis-
tinctly setting forth law applicable to case, whether asked or not.
Approved in Hemanus v. State, 7 Tex, Ap, 373, realBrming rule;
Cesure v. State, 1 Tex. Ap. 26, holding court nhauld charge as to
alternative punishment for burning stack of fodder; Coates v. State,
3 ON TEXAS EEP0BT8. 40 Tex. 494^501
irroborated evidence of prosecatrix sufficient
WitH latent to Commit Rape, there must be
! UBed, to Bccompllgb tbe carnal kDowledge
Br eoDsent, by means of tbe asflBiilt.
Jtafe, B Tei. Ap. 69, Renkel v. State, 27 Tei.
2, and Sbietds v. State, 32 Tex. Cr. 503, 23
rule; Curry t. State, 4 Tex, ip. 579, hold-
lould charge jury on law of aggravated aB-
l Tei. Ap. 14, holding indecent familiarities
le unless against ber will; Thomas v. State,
state must prove specific intent to autborize
irtson v. Stale, 30 Tex. Ap. 502, 17 8. W,
conviction of rape, evidence must eBtablisb
State, 33 Tex. Cr. 387, 26 S. W. 627, hold-
. of rape, court should charge Ian on in-
rei. Cr. 573, 38 S. W. 168. holding, on trial
ourt should charge on aggravated assault;
44 8. W. 158, instance where degree of re-
lent; Graybill v. State, 41 Tei. Cr. 288, 53
mt laid hands on prosecutrix, but desisted
int, it is iDBufficieot.
mlllarlty with person of female against her
it of purpose, ia aggravated assault.
. State, 11 Tei. Ap. 87, SlawBon v. State,
Bt. Bep. 917, 45 S. W, 575, People v. Man-
c. 223, and People v. Fleming, 94 Cal. 312,
iL V. BdHJiER.
1846, district court bas authority to amend
n any grounds enumerated in statute.
State, 3 Tex. Ap. 654, and Wbittaker t.
iffirming rule; Cheatnntt v. Pollard, 77 Tex.
g court may at any time correct minutes
record; Blalack v. State, 3 Tex. Ap. 38U,
. record entry of recognizance entered into
mia etc. Ins. Co. v. Waglej (Tex. Civ.),
lorrect Ille-mark on petition was corrected
correspond with corrected recital in eita'
r, 53 Neb. 131, 73 N. W. 665, holding court
Brrect record of proceedings. See note, 58
in etc. By. v. Haynes, 82 Tex. 455, 18 3.
t to Amend Judgments under statute must
deprive defendant of rights accruing after
'. State, 16 Tex. Ap. 280, holding under
given parties interested before amending
ite, 17 Tex. Ap. 480, holding judgment can-
>Uca given.
40 Tex. 502-5S9 NOTES ON TEXAS EEP0BT8.
40 Tex. 502, F0BBE8T T. KAWUNOS.
Entrjr on Judge's Docket, IndieatiDg appeal, will not supply
of notice of appeal given in open court, and entered of record
Approved in Long v. State, 3 Tex. Ap. 323, Vogle v. Ken<
Tex. Ap. Civ. 3M, and EBtado Land etc. Co. v, Ausley, G Tei
187, 24 S. W. 934, all reaffirming rule.
Misoeltaneoue.— Behrens v. Bogera (Tex. Civ.), 40 S. W. 4i
roneouslj cited to point tbat dela^ in suing upon claim, withoat
iog contract, will not discharge a suretj.
40 Tex. 616-519, STATE T. THOMPSON.
Expresalon "Range" or "Accustomed Bange," as used in
Cade, is matter of local description, and may be proved unde
eral allegation, without defining limits of range.
Approved in Darnell v. State, 43 Tex. 152, and Foster v. 8ti
Tex: Ap, 86, 17 S. W, 550, both reaffirming rule,
40 Tex. 520-623, GK>SS V. STATE,
To Alter Oliaiga In Felony Caae after retirement of jury, w
defendant'! consent ia reversible error.
Approved in Benavides v. State, 31 Tex. Cr. 175, 37 Am. St
800, 20 S. W. 369, reaffirming rule; Qarza v. State, 3 Tex. A;
reversing conviction where judge submitted new charge to
after retirement; Qranger v. State, 11 Tex. Ap. 455, balding
sible error, alteration of charge given without defendant's Co
Roberts v. State, 111 Ind. 342, 12 N. E. SOI, holding convicting <:
given in absence of defendant reversible error.
Distinguished in Flares v. State, 41 Tex. Cr. lOS, S3 S. Vi
where court erroDeouslj charged jury as to minimum puniahmi
had right to recall jury and correct error.
LMk of Oorroboration of Testimony of Prosecutrix in rape
weakens her credit, but jury must determine credit to be give
Approved in Coates v. State, 2 Tex. Ap. 19, holding testlmc
prosecutrix, corroborated by others, supports conviction of
Ruston V. State, 15 Tex. Ap. 326, holding testimony of prose
iosuSleient to support refusal of bail; Gazley v. State, 17 Te:
277, holding ravished person competent witness, but credibilit
to jury in rape case; Keith v. State (Tex. Cr.), 56 8. W. 629, pr
trix in rape ease need not be corroborated.
40 Tex. 523-529, TAUAFRBRO T. STATE.
On Trial for Assault With Intent to Mnider, a remark of di
ant while taking his pistol out of a drawer just prior to the a
is part of the res gestae.
Keaffirmed in Hobbs v. State, 16 Tex. Ap. 521.
On Tiial for Assault Wltli Intent to Commit AInrder, court
charge law applicable to case as developed by facts.
Approved in Mace v. State, 9 Tex. Ap. 114, applying rule in
cution for burglary; Williams v. State, 43 Tex. 3S5, holding on
to charge as required by evidence reversible error; Bishop v.
43 Tex. 402, holding material misdirection of law applicable ti
calculated to mislead jury reversible error; Cesure v. State, 1
Ap. 26, holding court must instruct jury on alternative punish
for burning stack of fodder.
J TEXAS BEPOETS. 40 Tex. 530-800
Lets from ctaimlDg title to land deeded
in dees from grantor, uDleaa pnichasera
I thereby.
:es8 Co. V. Belton Brick Mfg. Co., 64
lot bound hj agent's unauthorized act
Doed made and delivered bj father to
ihild'B title.
.) 1170.
r. INTEBNATIONAL B. B.
h>v«iiiiiinit Offlcer to compel perform-
nill not itsue if performance of duty
or discretion,
ircer, 68 Tex. 492, 2 Am. St. Bep. 507,
J Biggins V. Bicbardi (Tei. Civ.), 79
ncil in removing mayor on charges of
and cannot be reviewed by maadamusj
, 159, 34 8. W. 107, refusing to revise
and office by mandamus ; Watkins v.
4, denying mandamus to compel county
;hool contract; Keller v. Hewitt, 109
ig mandamus lies to compel boarij of
certificate after eiamination; State v.
120, 14 L. B. A. 253, holding mandamus
senator's commission by secretary of
Va. 662, holding governor cannot be
: papers to new capitol. Bee note, 55
V. Wright, 40 Tei. 611, 613, 614, C29,
Galveston, 11 Tei. Civ. 472, 33 S. W.
restore person to office from which he
T ConsUtntlon, compel officer of execu-
nt to perform official duty.
By. v. Gross, 47 Tex. 431, holding dia-
missioner of general land office to issue
■rnational etc. By. v. Anderson Co., 59
cannot be compelled by mandamus to
lilroad; State v. Board of LiquidntJon,
ilding members of board having execu-
bject to mandamus. See note, 89 Am.
5reene, S8 Tex. 547, 31 S. W. 635, hold-
t deprives citizen of right and no ade-
n Co. V. McQaughey, 3 Tex. Civ. 672,
lUB lies to prevent acta beyond author-
rtin V. Ingham, 3S Kan. 650, 17 Pac.
to compel performance of ministerial
Mr, petitioner maat show a clear, leg;il
'esponding obligation, on the part of
40 Tex. 600-702 NOTES ON TEXAS REPORTS.
41:J
Reaffirmed in Bank of Nocona v. March (Tex. Civ.), 5 S. W. 267.
Oonrts Powerless to Compel chief officers of executive departments
to J>erform duty.
See notes, 98 Am.' St. Rep. 874; 3 L. R. A. 54.
40 Tex. 600-693, KUECHLEB ▼. WRIGHT.
Alternate or Even Sections Set Apart by Section 3, Article 10,.
Constitution of 1866, as part of perpetual school fund of state, were
thereby withdrawn from legislative control.
Approved in Fannin Co. v. Riddle, 51 Tex. 367, 368, reaffirming
rule; Eyl v. State, 37 Tex. Civ. 311, 84 S. W. 611, mistake of land
commissioner in failing to properly charge lands to school fund in
adjustment on partition of lands jointly owned by the state and
that fund does not change character of lands; Texas etc. R. Co. v.
Bowman (Tex. Civ.), 75 S. W. 556, statute providing that railroad
corporations shall have right of way over land belonging to the
state does not embrace public free school lands; Milan Co. v.
Bateman, 54 Tex. 165^ holding constitution of 1869, giving legislature
control of school lands did not deprive counties of title.
Mandamus will Lie to Compel Commissioner of general land office
to perform ministerial duty.
Approved in Kaufman Co. v. McGaughey, 3 Tex. Civ. 672, 21 S.
W. 263, holding mandamus lies against executive authority to pre-
vent unauthorized acts. See notes, 125 Aul St. Rep. 499; 51 L. R. A.
68.
Distinguished in Galveston etc. Ry. v. Gross, 47 Tex. 431, holding
mandamus will not lie to compel issuance of railroad certificates by
land commissioner.
40 Tex. 69S-702, SPARKS ▼. SPENCE.
Conveyance by Father to Children of part of community estate is
deemed to be in discharge of proportional interest of children in
community estate.
Approved in Randolph v. Junker, 1 Tex. Civ. 523, holding con-
veyance of property subject to community obligations, prima facie
in discharge thereof; Arnold v. Hodge, 20 Tex. Civ. 215, 49 S. W.
717, holding conveyance of community property presumed in dis-
charge of claim against community; Williams v. Emberson, 22 Tex.
Civ. 527, 55 S. W. 598, holding gift to child presumed advancement
to be accounted for on distribution of estate.
In Contest Between Heirs, each must account for community prop-
erty received as advancement unless different intention shown and
value thereof is estimated at time when made.
Approved in Belcher v. Fox, 60 Tex. 531, and Brown y. Elmendorf^
87 Tex. 60, 26 S. W. 1044, both reaffirming rule.
NOTES
ON THE
lS eepoets.
lES IN 41 TEXAS.
STATE.
01t« Ml ZtUtrnctlOD in crimlnfJ ease, fully
iCesBarj to constitute the oflenBe, no ground
learlj sppeare tbat defendant was uniajured.
V. State, 30 Aik. 336, reafflrming rule; Esber
>10, refuBiag to inBtruet aa to loirei grade of
d hy evidence.
otintT Boundary la material fact to be proven,
putation ia admisiible in criminal ai in civil
T. State, 1 Tex. Ap. 47, Albert v. Gulf etc.
1 S. W. 780, Btetion v. Freeman, 35 Kan. 535,
ing rule. See note, 15 Am. Dec. 629.
nal ProcAdnn, wbere an offense it committed
'arda of the boundary line of two counties,
lither county.
: V. State, 41 Tex. Cr. 2S2, M Am. St. Bep.
ng act of 1897, regarding venae in rape eaees,
iS V. STATE.
, of Constltntlon of 1869, la In eonfliet, and
erred by act of 1S18 upon diBtriet court to
property.
Hilton V. Brawn, ISl U. 8. 172, 16 Sup. Ct.
tevised Statntea of IS7S, section 1785, holds
:d property are anbjeet to disposition of state
tty law.
not Subject to Location as vacant lands, nor
Id by another be aided by proceedings by
•heat such property.
. Cattle Co. V. State, 68 Tex. 649, i 8. W. 878,
ate, 12 L. B. A. 533.
o U not Known to exist for seven years is
J bia death.
(419)
41 Tex. 23-39
NOTES ON TEXAS REPORTS.
420
Approved in Hamilton v. Brown, 161 U. S. 265, 16 Sup. Ct. Rep.
588, 40 L. 696, reaffirming rule.
Petition for Escheat should allege that suit is filed in county en-
titled to administration upon estate, death of party whose estate
is to be escheated, and that be died without heirs or devisees.
Approved in Hamilton v. Brown, 161 U. S. 268, 16 Sup'. Ct. Rep.
589, 40 L. 697, reaffirming rule; American Loan & Trust Co. v.
Grand Rivers Co., 159 Fed. 780, arguendo.
Where Title to Land Fails for lack of heirs or devisees who may
lawfully take, it reverts or escheats to the state.
See note, 6 Am. St. Rep. 381.
41 Tex. 23-25, McFAKUK ▼. STATE.
It is Error to Instruct Jury to Convict if they find facts estab-
lished which are recited in the charge, where other facts in evidence,
which would mitigate or excuse offense, are not referred to.
Approved in Howard v. State, 18 Tex. Ap. 351, reaffirming rule.
It is Error to Exclude Testimony of witness on cross-examination
to show that his feeling toward accused was different than that
testified to by him on direct examination.
Approved in State v. Collins, 33 Kan. 81, 5 Pac. 370, and Stewart
v. Kindel, 15 Colo. 541, 25 Pac. 990, both holding extent of ill-feeling
of witness may be inquired into. See note, 82 Aul St. Rep. 52.
Indictment for Assault and Battery need not allege intent to
injure.
Approved in Work v. State, 3 Tex. Ap. 233, reaffirming rule.
41 Tex. 27-30, THOMAS v. STATE.
Indictment for Arson sufficiently describes intent where it alleges
the act to have been willfully done.
Approved in Tuller v. State, 8 Tex. Ap. 506, reaffirming rule. See
notes, 81 Am. Dec. 65; 81 Am. Dec. 74; 101 Am. St. Rep. 22.
41 Tex. 30-33, STATE v. BLAIB.
Indictment Need not Declare Faro, gaming-table, or bank, was
exhibited for purpose of gaming, because courts take judicial notice
of description given in statute.
Approved in Doyle v. State, 19 Tex. 412, and Wardlow t. State,
18 Tex. Ap. 357, reaffirming rule; Negro Ben v. State, 9 Tex. Ap.
109, where gaming-table named in statute, not named in indictment,
it must be alleged that table was exhibited for gaming purposes.
41 Tex. 33-34, STATE v. BXJPE.
An Indictment Under Article 2196, Paschal's Digest, for destroy-
ing life of infant during parturition, need not negative existence
of circumstances, which would justify act under article 2197, Pas-
chaPs Digest.
Approved in Johnson v. People, 33 Colo. 232, 108 Am. St. Rep.
85, 80 Pac. 136, indictment charging murder in procuring abortion,
exceptions stated in statute as matters of justification need not be
negatived. See note, 66 Am. Dec. 89.
41 Tex. 35-39, STATE v. EZELIi.
On Trial for Criminal Charge, after full jury tendered defendant
by state, he was required to pass upon them and upon those tendered
to fill places of those challenged by him, until satisfied or chal-
lenges exhausted; held, not error.
8 ON TEXAS EEPOBTS. 41 Tex. 39-48
. State, 2 Tex. Ap. 534, reafflriaitig rule;
Colo. 58, 71 Pac. 379, where, after panel
one peremptory left, wbb told be must chal-
, and OD his refusal prosecutioc challenged,
tber of old jarors after panel again filled,
ft Witness to be questioned, for purpose of
,t charge be it committed to jail, where h«
ite, 45 Tex. Cr. 52, 73 8. W. «8, on impeach-
Kritneas wbo on erosa-fxa mi nation admitted
criminal charge, but refused to state nature
irging crime may be read; McCoy v. United
9S S. W. 146, in proaecution for larceny,
leed on croaa-exsmination how many larceoy
jainat bim, and whether ooe of them wa*
State, 21 Tex. Ap. 313, 17 8. W. 428, dia-
testimony that be came from jail and evi-
^arroll v. State, 32 Tex. Cr. 435, 40 Am, St.
, allowing croBB-examinatloa, showiDg that
iBwer for a crime; Texas etc. Coat Co. v.
, 31 8. W. 849, allowing witness to be crow-
le is in jail awaiting trial for embezzlement
T. STATE.
iifomial and not responsive to issue under
ly rejected.
State, 14 Tex. Ap. 352, Robinson v. State,
905, Guest v. State, 24 Tex. Ap. 532, 7 8. W.
I Tex. Ap. 640, all reaffirming rule; Moody
, 105 S. W. 1128, and Lee v. State, 41 Tex.
botb holding where verdict in aggravated
and assesses fine which is maximum for
innm for former, it tbould be set aside.
17, 731.
lut, as Witness In Anotli«r Case, may bd
ite against him, there being no intimidation
gb he did not know he could decline to in-
V. State, 10 Tei. Ap. 569, State v. Hopkins,
both reaffirming rule; Luira v. State (Tex.
iintary statement of defendant in homicide
aination need not be placed in envelope.
.censed Is Domestic Servant of person from
M stolen, the offense is simple theft, and not
a V. State, 10 Tex. Ap. 170, rule does not
1^ tenant.
AN T. STATE.
_Tb«ft from » House, under article 2409,
sustained by proof of Iheft from a teut.
Weber, 156 Mo. 260, 56 8. W. 894, holding
41 Tex. 46-76
NOTES ON TEXAS REPORTS.
422
Distinguished in Killman ▼. State, 2 Tex. Ap. 224, 225, 28 Am.
Rep. 433, 434, allegation that defendant kept disorderly house suffi-
cient to maintain action for keeping prostitutes in a tent.
41 Tex. 46-49, STATE y. OOrFBT.
If in Same Indictment one offense is sufficiently charged, another
defectively charged will be treated as surplusage.
Approved in Henderson t. State, 2 Tex. Ap. 89, reaffirming rule;
concurring opinion of Davidson, P. J., in Dent v. State, 43 Tex. Cr.
151, 65 S. W. 634 (on rehearing), majority reaffirming rule.
Assault and Battery is aggravated when committed upon officer
in lawful discharge of duty, if party assaulting knew or was in-
formed of the official position of such officer.
Approved in Bristow v. State, 36 Tex. Cr. 380, 37 S. W. 326, re-
affirming rule; Patton v. State (Tex. Cr.), 49 S. W. 389, indictment
for resisting officer failing in knowledge or information on part of
defendant that party was an officer is fatally defective.
41 Tex. 60-62, COUNTZ y. STATE.
Acts of 1866 and 1866, prescribing penalty for selling spirituous
liquors in quantities less than one quart, were, as to such penalties,
supplanted by act of December 1, 1871.
Approved in Smith v. State, 7 Tex. Ap. 287, reaffirming rule.
41 Tex. 64-66, STATE y. WHITE.
An Indictment for Burning Prairie should allege that the prairie
burned was not property of accused.
Approved in Phillips v. State, 17 Tex. Ap. 173, held not error to
allege ownership of property burned by defendant in complaining
witness. See note, 81 Am. Dec. 76.
41 Tex. 66-67, JOHNSON y. STATE.
To Constitute Swindling, some false representations as to exist-
ing facts or past events should be made; mere false promises or false
professions of intention, although acted upon, are insufficient.
Approved in Allen v. State, 16 Tex. Ap. 151, Blum v. State, 20
Tex. Ap. 592, 54 Am. Rep. 532, Scarlett v. State, 25 Fla. 719, 6 So.
767, Holton v. State, 109 Ga. 131, 34 S. E. 360, and Mathews v.
State, 10 Tex. Ap. 285, all reaffirming rule; Richardson v. State,
2 Tex. Ap. 322, sustaining indictment though tautologically expressed.
See notes, 25 Am. St. Rep. 379; 25 Am. St. Rep. 385.
41 Tex. 67-76^ STATE y. WEBB.
Indictment for Perjury as defined by article 1909, Pascal's Digest,
is fatally defective if it fails to charge defendant with having
deliberately and willfully sworn falsely.
Approved in Powers v. State, 17 Tex. Ap. 434, United States y.
Kelsey, 42 Fed. 890, all reaffirming rule; Smith v. State, 1 Tex. Ap.
622, sustaining indictment for perjury, containing words "deliberately
and willfully"; State v. Day, 100 Mo. 247, 12 S. W. 366, quashing
indictment for perjury, omitting word '^willfully." See note, 85 Am.
Dec. 495.
Omission of Any Constmctiye Element of the offense of perjury
as defined by article 1909, Paschal's Digest, is fatal to indictment.
Approved in Gabrielsky v. State, 13 Tex. Ap. 438, reaffirming rule;
Anderson v. State, 18 Tex. Ap. 18, quashing indictment for perjury.
LS BEPOBTS. 41 Tex. 76-98
irisdietian in origioal ease. See
rn verdict U clearly wrong.
N. D'. 486, 88 N. W. 353, uphold-
i for conapirac;, for insufficienef
SMBT.
inity Propertj eonTeyed by buR-
ot beeotoe exempt as homestead,
It auch trast, and injunction by
jisaolved,
'ex. 559, Brooke t. Chatham, ST
Tex. 137, all reaffirming rule.
in Bonner v. Mitittier, 13 Mont.
reaidence is neceaaary to consti-
imcatead not exempt from fote-
al improving it.
9X 90, reaffirming rule.
ebon that oath was taken and
roc ceding in court having juris-
13 Tex. Ap. 438, Anderson y.
.ee, 18 Or. 546, 23 Pao. 426, and
11 reaffirming rule.
e time and place of judicial pro-
e, the name of judge, court, or
ther at examination or on trial
\.m. St. Bep. OSS, 660.
t Indlctmeiit^ not affecting «nb-
>re defendant applies for change
rex. Cr. 398, 30 8. W. 793, cor-
Y court to which venue changed
edaot arraigned before change
lew trial.
. Ap. 269, Ex parte Cox, 12 Tex.
ntdon does not abrogate the law
; inBicting puniahment of death
:z. Ap. 441, reafRrming rule; Hill
3, reaffirming role under similar
juror refusing to find verdict of
ence eircumataotial, incompetent.
*1 Tei. 98-119 NOTES ON TEXAS EEPOETa
'Uental Defect," U Used In Code (Pas. Dig., art. 3040), en
eitber Bucb imbecility or gross ignorance aa practicallj diBq
a person from performing dutiea of a juror.
Approved ic Reed v. State, 1 Tex. Ap. 6, inability to nndi
oatb good cause for principal challenge.
OAcer Ktillng a Prisoaer In His Custody while trying to
is guilty of murder in the second degree, where his life ie i
dangered, and there ia do malice on his part.
Approved in Tiner v. State, 44 Tei. 131, Thoraas s. Kinki
Ark. S04, 29 Am. St. Bep. 69, IS S. W. SS4, 15 L. B. A. 5i
Brown v. Weaver, 76 Mias. 16, 71 Am. St. Bep. 515, 23 So. :
h. R. A. 423, all reaffirming rule; Buchanan v. State, 52 T<
237, 106 S. W. 135, applying rale when officer killed prisoner a
for drunkeaneaa after officer had summoned assistance. See
18 Am. Dec. 784, 787; 61 Am. Dec. 164; 67 L. E. A. 300,
MiBcellaneous. — Cited in Buchanan v. State, 52 Tei. Ct. 2'.
3. W. 135, as to reading of law from reports by counsel in ar|
41 Tax. 9S-101, STATE T. WILLIAMS.
An Indictment for Bniglaiy charging ao entry with fon
with felonious intent negatives consent by the owner or oc
without alleging want of such consent.
Approved in Sullivan v. State, 13 Tex. Ap. 464, Reed v.
14 Tei. Ap. 666, Buntaio v. State, 15 Tex. Ap. 487, and Bl
State, 18 Tex. Ap. 127, all reaffirming rule.
An Indictment for BnrElaiT, charging an unlawful entr:
felouiouB intent to "commit the crime of rape'' is insufficient,
it does not specifically describe the offense to be committed.
Approved in Hewitt v. State, 15 Tex. Ap. 81, reaffirming
White V. State, 1 Tex. Ap. 213, indictment for burglary, cl
entry with intent to commit the offense of "theft from a ho
insufficient; Simms v. State, 2 Tex. Ap. 114, indictment for bi
must charge with certainty anil particularity the intended
Philbrick v. State, 2 Tex. Ap. 519, instance where such indi
was insufficient for failure to allege value of goods intended
stolen; Webster v. State, 9 Tex. Ap. 76, failure to charge i
indictment all the statutory ingredients of the intended tl
fatal; Rodriguez v. State, 12 Tex. Ap. 553, such indictment m
forth the statutory elements of the intended felony; Reed v.
11 Tex. Ap. 667, mere fact of entry with (eloniooa intent
shown is insufficient; Territory of Montana v. Duncan, 5 Mor
6 Pac. 355, allegation in such indictment of intent to commit
larceny without averring value of property intended to be
is ingnSlcient.
41 Tex. 111-119, STATFOED v. STAFFOED.
In Suit for Divorca, neither party is competent witness re|
matters affecting right to divorce, under article 3452, Pb
Digest, nor is this rule affected by act of May 19, 1871.
Approved in Endick v. Enilick. 61 Tex. 561, Hanna v. Ha
Tex. Civ. 52, 21 S. W. 720, and Coruish v. Cornisb, 56 Tex. i
reaffirming rule.
ES ON TEXA3 KEPOBTa « Tei. 1S5-136
Wife for love and affection veits title in bet
1 his be its.
.. 372.
lOUB V. STATE,
of Iiuanlty, nonprofessiODal witneBBes maj
0 sanity of party, as result of their obaerva-
1 statement of facts ob^^ervad.
ley V. State, 3 Tex. Ap. 330, Webb v. Stale,
V. State, 18 Tex, Ap. 294, Williams t. State,
W. 689, Territory v. Hart, 7 Mont. 500, 17
h, 56 Neb. 138, 76 N. W. 429, Connectieut etc.
1 U. 3. 622, 4 Sup. a. Bep. 538, 28 L. 540,
., 80 Tei. 51T, 16 S. W. 315, all reaffirming
65 Tex. 96, permitting wife to testify to
tioD. See note, 38 L. B. A. 729.
3HS V. SIATB.
in Criminal Cases is no ground for reversal
ce resulted to prisoner.
t. State, 1 Tea. Ap. 273, 28 Am. Eep. 412,
ip. 103, Cox V. State, 7 Tei. Ap. 4, and Wakc-
557, all refusing new trial trbere injury to
ly juror's separation from fellows and officer.
81, 82; 103 Am. St. Rep. 168.
in Van Syoc v. State, 69 Neb. 524, 98 N. W.
de verdict thougli deputy sheriff In ehargs of
;es for state.
fSENS T. STATE.
tlDnatlCO for want of absent nonresident wit<
date of issuance of attachment, and to whom
/. State, 1 Tex. Ap. 404, Robles v. State, 5
ay V. State, 1 Tex. Ap. 420, alt refusing con-
ot stating to whom subpoena wae delivered;
I. Ap. 91, refusing continuance on affidavit
nd belief where name of informer not given.
i&nc« for want of absent, nooresldeot wit-
State, 1 Tex. Ap. 288, and Texas etc. By. v.
denyiog continuance where distance to resi-
tefoslng Contlnnucfl must appear by bill of
on will not be noticed on appeal,
in V. State, 1 Tex. Ap. 108, Nelson v. State,
'. State, 9 Tex. Ap. 646, and Alamo etc. Ins,
, Civ. 678, 28 8. W. 126, all reaffirming rule.
« Tex. 164-182 NOTES ON TEXAS REPOBTa 428
41 T«x. 164-166, UABTINEZ T. STATE.
Indictment for Tbeft of United States Cniranc; must allege its
TBlue and clearly describe it.
Approved in Lavaree v. State, 1 Tes. Ap. 687, "three hundred
dollars" insufficient description ol money stolen; Wells v. State, i
Tei. Ap. 24, "one ten dollar United States currency note of value
of ten dollars" sufficient description of stolen money; Watts v. State.
6 Tei. Ap. 264, quashing indictment failing to allege value of prop-
erty; Sanfibury v. State, 4 Tei. Ap. 103, bank notes described as
"property" held sufficient in indictment; State v. Oakley, 51 Ark.
115, 10 S. W. 18, "two ten dollar billa United States currency" in-
sufficient description in indictment for theft; State v. Segermond,
40 Kan. 110, 10 Am. St. Rep. 172, 19 Pac. 372, "three hundred gold
dollars" insufficient deacription in indictment for theft. See note,
51 Am, Dec. 233.
Instmctlon to Jury to Find Defenduit Onlltr of theft, unless recent
possession of stolen property be reasonably explained, is error.
Approved in McCoy v. State, 44 Tei. 619, reaffirming rule.
41 T«x. 166-168, STATE ▼. AEE.
TDe SnretleB on & BaU Bond or recognizance cannot avoid their
liability on account of defect in indictment against their principal-
Approved in Hester v. State, 15 Tex. Ap. 419, Martin v. State, 16
Tes. Ap. 267, Wells v. State, 21 Tex. Ap. 596, 2 8. W. 807, Lee v.
State, 25 Tex. Ap. 332, 8 S. W. 278, United Statea v. Eldredge, 5
Utah, 173, 13 Pac. 679, and Smalley v. State, 3 Tex. Ap. 203, aU
reaffirming rule.
41 Tex. 172-182, 19 Am. Bop. 38, LTLES V. STATE.
Tbongli Inability of Jury to Speak and understand English is no
disqualification under the code, trial by such a jury b violative of
section 16, article 1, of Bill of Bights.
Approved in Davis v. Dyer, 62 N. H. 339. reaffirming rule; Nolea
T. State, 9 Tex. Ap. 421, 422, and McCampbell v. State, 9 Tex. Ap.
125, 126. 35 Am. Kep. 727, both setting aside verdict of jury where
several jurors were unable to understand English; Lester v. Slate,
2 Tex. Ap. 441, reversing judgment where juror not a freeholder in
Texas; Etheridge v. State, 8 Tex. Ap. 134. juror unable to speak or
understand English disqualified; State v. West, 69 Mo. 403, scruples
against convictieg on circumstantial evidence disqualifies jnror.
Distinguished in Garcia v. State, 12 Tex. Ap. 339, and Wright v.
State, 12 Tex. Ap. 167, juror must be able to read and write Eng-
lish; Trinidad v. Simpson, 5 Colo. 71, inability of juror to speak or
nnderstand English no disqualification; Yanez v- State. 6 Tex. Ap.
432, 32 Am. Rep. 592, after verdict against defendant he cannot
except to jurors as disqualified where no eicpption taken before trial.
See nolea. 35 Am. Rep. 728, 731; 1 Am. St. Rep. 522.
Wliere Two Jointly Indicted and Tried, and only one convicted, it
is error to refuse new trial to convicted party where motioo sup-
ported by affidavit of acquitted party to facts material to defense,
which could not be used before because of joint trial.
Approved in Sanders v. State. 52 Tex, Cr. 467, 107 S, W. 840,
Williams v. State, 4 Tex. Ap. 10, Iluebner v. State, 3 Tex. Ap. 463,
Rucker v. State, 7 Tex. Ap. .-iiil, all reaffirming rule; Gibbs v. State,
30 Tex. Ap. 584, 18 S. W. S3, granting new trial where evidence in
ON TEXAS EEP0ET8. 41 Tei. 182-193
Irlng Iaw of manslaughter to be given in
V. State, T Tei. Ap. 398, whether injury
iccuaed eonatituted "adequate cauas" is for
STATE.
Km OlrcnmstalltUl ETldoncB, fall instrue-
)f the law are essential, but requested
substance of general charge need not be
ate, 10 Tex. Ap. 297, and Gonzales t. State,
V. State, 17 Tei. Ap. 584, Wright v. State,
nt V. State, 7 Tex. Ap. 236, all reversing
ructions as to cireamstantial evidence not
t. A. 213.
UTT T. STATE.
I OatUo from the coantj to market, without
such cattle recorded, is not punishable in
driven.
V, State, 9 Tex. Ap. 44, offense of driving
ut owner's consent, is different, and is pun-
crossed, in either county.
iBt Clearly Show that it relates to matter
Jtate, 10 Tex. Ap. 302. under indictment for
guilty of a misdemeanor is not responsive;
Lp. 332, 7 S. W. 243, verdiet finding party
cient; Moody v. State, 52 Tex. Cr. 233,
■. Stale, 41 Tex. Cr. 558, 55 S. W. 814, both
for aggravated assault with issue of simple
I vrdict of guilty with fine which may
should be set aside; State v. Austin, 109
letting aside verdict not desigDating felony
II T. STATE.
rsed in Crlmliud OasM where record shows
I to jury than one prescribed by statute.
tate, 1 Tex. Ap, 415, Smith v. State, 1 Tex.
rule; Everett v. Slate, 4 Tex. Ap. 160, and
496, both setting aside verdict where statu-
ry; Ewing v. State, 1 Tex. Ap. 363, revers-
ird did not show that jury were sworn;
jx. Ap. 397, oath "well and truly to try
insufficient; Holland v. State, 14 Tex. Ap.
; where statutory oath not given to jury;
429, 4 Fac. 10S£, oath to "well and truly
41 Tex. 193-205 NOTES ON TEXAS REPORTS.
430
On Trial for Theft in Bemoving O&ttie from accustomed range,
defendant may prove directions given employees regarding gather-
ing and driving cattle, for purpose of rebutting charge of fraudulent
intent.
Approved in Turner v. State, 7 Tex. Ap. 599, admitting conversa-
tion at time of sale to rebut charge of theft.
In Order to Convict Party of Theft of Cattle their value must
be alleged in order to fix proper penalty.
Approved in Powell v. State, 7 Tex. A p. 469, reaffirming rule.
The Court must Fully Instruct the Jury as to law on facts proven.
Approved in Turner v. State, 7 Tex. Ap. 600, reversing judgment
where proper instruction refused.
Driving Cattle from Their Accustomed Range, without owner's
consent, with intent to defraud^ is theft.
Approved in Foster v. State, 21 Tex. Ap. 86, 17 S. W. 550, reaffirm-
ing rule.
41 Tex. 193-198, ALEXANDER v, STERN.
Service npon One Partner, after dissolution of partnership, but
before firm's business wound up, is sufficient to warrant judgment
against partnership property.
Approved in Sugg v. Thornton, 132 U. S. 531, 10 Sup. Ct. Rep.
166, 33 L. 449, Sanger t. Ovennier, 64 Tex. 59, Henderson v. Banks,
70 Tex. 400, 7 S. W. 817, Halsell v. McMurphy, 86 Tex. 102, 23 S. W.
648, 22 L. R. A. 87, Glasscock v. Price, 92 Tex. 274, 47 S. W. 966, and
Texas etc. R. R. v. McCaughey, 62 Tex. 272, all reaffirming rule;
Staacke Bros. v. Walker (Tex. Civ.), 73 S. W. 409, judgment for de-
fendants in action against firm, in which only one partner served,
is final appealable judgment.
41 Tex. 199-203, SIDEnS v. STATE.
In Criminal Case, where evidence cannot be reconciled, instruction
that jury should decide which witnesses are entitled to greater
credibility is not error.
Approved in Liverpool etc. Ins. Co. v. Ende, 65 Tex. 125, reaffirm-
ing rule under similar facts; Lindsay t. State, 1 Tex. Ap. 330, Searcy
v. State, 1 Tex. Ap. 444, Butler v. State, 3 Tex. Ap. 50, Cooper v.
State, 7 Tex. Ap. 202, Brown v. State, 2 Tex. Ap. 126, Williams v.
State, 10 Tex. Ap. 15, Howe v. O'Brien (Tex. Civ.), 45 S. W. 814, all
reaffirming rule; Litman v. State, 9 Tex. Ap. 462, charging jury "to
discard any portion of evidence is in your discretion" is error. See
note, 76 Am. Dec. 66.
Distinguished in Johnson v. State, 9 Tex. Ap. 559, a charge that
jury should believe such witnesses as they thought entitled to credit
and disbelieve such as they deem proper to discredit is erroneous.
Failure to Instruct Jnry to Acquit if they have reasonable doubt
of defendant's guilt is not ground for reversal where evidence clearly
establishes guilt.
Approved in Treadway v. State, 1 Tex. Ap. 672, reaffirming rule.
41 Tex. 203-205, BRAY v. STATE.
In Trial for Theft, where from the evidence jury might infer
taking not fraudulent, court must instruct as to distinction between
trespass and theft.
Approved in Johnson v. State, 1 Tex. Ap. 119, Ainsworth v. State,
11 Tex. Ap. 344, Schultz v. State, 30 Tex. Ap. 94, 16 S. W. 756, and
JOTES ON TEXAS EEP0BT8. 41 Tex. 205-213
Tex. Ap. 242, 5 B. W. S42, all reaffirming rale;
^Bi. Ap. 383, rHveraing judgment where court did
evjilenee teadiog to allow boaa fide purchase,
lens Intent is a necesaarj eonstituent of offense.
irn V. State, 43 Tex. 480, knowledge that act was
iritf b uecetsary to constitute offense of assum-
iw ezcusea one committing olfense. bnt if a person
take aa to particular fact shall do an act which
eriiuinal, hs is guiltj of no offense,
n V. State, 17 Tex. Ap. 2S6, reaffirming mle; Neety
p. 86, 67, instruction to convict, even though de-
> nnder belief tbat he was' the owner, is error;
Tei. Ap. 429, reversing judgment where court re-
I to law in principal case; Boyd v. State, 18 Tex.
defendant where he believed hog takan to be his
Am. Dec. 675.
ASDOX T. BTATB.
r Indictment TTnder Paschal's Dlgeet, Article 2331,
Itj and panished upon proof that be obtained
*e pretext, with intent to deprive owner thereof,
me to his own use, m provided by article 2385,
I V. State, 2 Tex. Ap. 154. Jinks v. State, 5 Tex.
. State, 8 Tex. Ap. 650, Davison v. State, 12 Tex.
ate, 16 Tex. Ap. 591, al] reaffirming rule; Quitzow
). TO, facts and circumstances of taking need not
:ment for theft; Hudson v. State, 10 Tex. Ap. 230,
roperty obtained by false pretense completes of-
' V. State, 12 Tex. Ap. 345, appropriation of goods
them under false pretenses eompletes offenBC of
1 by Accnied while under arrest are admiBsible
9 voluntarily mnde on the day after cautioned
< used against him.
ms v. State, 35 Tex. Cr. 297, 33 S. W. 356, Earth
r. 363, 73 Am. St. Rep. 938, 46 6. W. 229, Baker
p. 26, S Am. St. Bep. 430, 8 S. W. 25, all reaSirm-
v. State, 49 Tex. Cr. 490, 93 8. W. 545, upholding
nfesaion made after warning by one other than
and though not contemporaneous with warning;
Tex. Cr.), 28 S. W. 952, confession made within
ing IS not too remote; Martin v. State (Tex. Cr.),
essiou mads a few hours after warning is admis-
le to part; other than one warning. See note,
792.
ILUAMS V. STATE.
In Crtjnlnal Caae is very conflicting, the jury
evidence they deem most worthy of credit, and
to set aside vetdict of guilty found on tiucli evi-
111 not disturb it.
41 Tex. 213-222 NOTES ON TEXAS BEPOHTS.
Approved in Brown v. State, 1 Tei. Ap. 158, Slaaghter v. 8l
7 Tex. Ap. 124, Brown v. State, 8 Tex. Ap. 49, all reafGrmiDg ru]
To Antborize Convlctloii on ClrcumBtantlal ETldance, the circ
Btances should be consistent with priBoner's guilt and inconsis
with any other rational conclaaioD or reaaonable hypothesis eoaais
with facts proven.
Approved in Jones v. State, 5 Tex. Ap. ST, Sodriguea v. Stat
Tei. 282, Myers v. State, 7 Tex. Ap. 657, and State v. Willingl
33 La. Ann. 539, all reaffirming rule; Barr v. State, 10 Tex. Ap.
and Pharr v. State, It) T^x. Ap. 489, both sustaining instme
containing rule; Irvin v. State, T Tex. Ap. 113, and Haynie v. St
3 Tex. Ap. 224, giving rule in instruction not error; Bay v. SI
13 Tex. Ap. 58, rule approved as guide in giving instructions in c
on circumstantial evidence. See notes, 62 Am. Dee. 1S2; 97 Am.
Bep. T74, 777.
41 Tax. 213-21S, EX PASTE MKJJSE.
Wliere Briitmce la Conflicting as to state of mind of pe
charged with homicide at time of set, it cannot be said that
"proof is evident" and defendant is entitled to bail.
Approved in Jones v. State, 33 Tex. Cr. 49S, 47 Am. St. Bep.
2fi S. W. 1085, Ex parte Smith, 23 Tex. Ap. 143, 5 S. W. 113,
Ex parte Foster, 5 Tex. Ap. tt46, 32 Am. Bep. 678, all holding
should be allowed unless evidence introduced upon application W'
sustain conviction of murder in flrat degree.
41 Tex. 215-216. PRICE ▼. STATE.
It Is Uunecwsary to Set Out the Cliartec of a corporation as
indictment for theft from a iiain, or to allege it to be a charti
company otherwise than by name.
Approved in Steiner v. State, 33 Tex. Cr. 293, 26 8. W. 215,
affirming rule; Leonard v. State, 7 Tex. Ap. 436, corporation descr
by name and laws under which organized sufficient in indictm
White V. State, 24 Tex. Ap. 234, 5 Am. St. Rep. 881, 5 S. W,
initials of a corporation in in<jictD]ent ineufficieut. See note, 9S
Dee. 158.
41 Tex. 217-220, STATE ▼. OIO QBANSE B. B.
Information by District Attorney against railroad company,
purpose of forfeiting its charter, will not lie, save for an act n
cause of forfeiture by its charter, or for willful abuse or impn
neglect of company.
Approved in State v. Cumberland Tel. etc. Co., 114 Tenn.
86 S. W. 394, failure of foreign corporation to file abstract of cha
in each of counties in which it does business, aa required by stat
not ground for forfeiture of charter, where noncompliance was ce
of inadvertence and was remedied on discovery. See notes, 8
St. Bep. 183; S Am. Bep. 199.
41 Tex. 220-222, STATE ▼. HEIJ>T.
ludlctmeat for Bet»lUng Splrttaoiu Llqnors need not describe hi
nhere liquor sold, or allege names of persons to whom sold.
Approved in Lincoln Center v. Linker, 5 Kan. Ap. 244, 47 Pac.
State V. Bodecker, 11 Wash. 419, 39 Pac. 646, and State v. Schwe
27 Kan. 512, all sustaining indictment not setting out names of
sons to whom liquor sold.
la ON TEXAS BEFOBTS. 41 Tex. 222-229
IE T. BOWSER.
Agent to ezecutB a contract of Bale of land
^ipal need not be in writing.
lUow V. Elsea (Tex. Civ.), *5 8. W. 422, in-
if agency for sale of land was not terminated
of agent. See note, TO Am. Dec. 381.
nan v. Adams, 30 Tex. Civ. 616, 71 S. W.
gava agent written memorandnin describing
price and verbal inHtructioDs to aell, agent
owner by written contract of gale.
aotrtict of Sala of land censot execute written
V. Adama, 30 Tex. Civ. 620, 71 S. W. 583,
e agent writing describing land with Btate-
Ital instructiODB to sell, agent not empowered
-act of Bale. See note, 17 L. B. A. (n. b.)
3 T. ELLIOTT.
kn information presented by connty attorney
an Be affidavit upon wbich baaed does not bear
■. Stato, 42 Tex. Cr. 73, 57 8. W. 827, reaf-
T. State (Tei. Cr.), 43 8. W. 995, where the
caBe is attached to the information, the filing
ganidng county courts, an information Bbould
I between it and affidavit upon
CIEZ ▼. STATR
t, alleging that defendant "did feloniously
> taking "fraudulent" to support conviction.
T. State, 14 Ter. Ap. 578, reaffirming rule;
•X. Ap. 617, allegation that taking "was with
jropriate same to bis own use and beneflt" iu-
ite, 18 Tei. Ap. 226, "did unlawfully and
allegation that taking wea fraudulent.
Name of Defendant, where correctly given
indictment.
V. Stale, 28 Tei. Ap. 353, 13 S. W. 145, re-
of Oxen ia sustained by proof of fraudu-
lelling their hides.
. State, 2 Tex. Ap. 351, McPbail v. State, 9
rming mie.
if Theft omits words "carried away"; hence,
Lnnecessary.
State, 41 Tex. 283, and Walker v. State, 3
ming rule. See note, 57 Am. Dee. 272.
fol 01 Fiandulent Taking and carrying away,
onal goods of another, with felonious intent
iwn use, without owner's consent.
41 Tex. 229-237 NOTES ON TEXAS EEPORTS.
434
Distinguished in Dunn v. State, 34 Tex. Or. 259, 53 Am. St. Rep.
715, 30 S. W. 227, taking horse for purpose of obtaining reward for
its return not theft.
41 Tex. 229-231, STATE v. McDANIEL.
Where Principal in Offense Dies Befare Trial, the accessary cannot
be tried, but where principal escapes accessary may be tried.
Approved in Moore v. State, 40 Tex. Cr. 391, 51 S. W. 1109,* and
Kingsbury v. State, 37 Tex. Cr. 266, 39 S. W. 366, both dismissing
accessary upon death of principal before trial.
41 Tex. 231-232, BIDQEWAY ▼. STATE.
Indictment for Theft Falling to Allege that goods unlawfully taken
were taken "with intent to deprive the owner of the value of the
same" is bad.
Approved in Williams v. State, 12 Tex. Ap. 397, quashing indict-
ment not alleging ownership, that goods taken without owner's con-
sent, with intention to deprive owner and appropriate same; Jones
V. State, 12 Tex. Ap. 425, quashing indictment failing to allege fraud-
ulent intent; Jones v. State, 25 Tex. Ap. 622, 8 Am. St. Rep. 450, 8
S. W. 802, and Peralto v. State, 17 Tex. Ap. 578, both holding statu-
tory words essential to indictment cannot be supplied by inference
and intendment.
An Indictment for Theft Should Describe the Property with rea-
sonable certainty when practicable, and if theft of coin, its character
should be given. Where particular description impracticable, that
fact should be stated.
Approved in Lavarre v. State, 1 Tex. Ap. 687, allegation of taking
"three hundred dollars" held insufficient description of money in in-
dictment; Wells V. State, 4 Tex. Ap. 24, sustaining indictment stating
kind and value of money taken; State v. Segermond, 40 Kan. 110,
10 Am. St. Rep. 172, 19 Pac. 372, quashing indictment not giving
value of money taken. See notes, 51 Am. Dec. 233, 235.
Miscellaneous. — Sansbury v. State, 4 Tex. Ap. 103, cited to point
that United States treasury notes are "property" within meaning of
statute.
41 Tex. 233-234, FULCHEB ▼. STATE.
On Trial for Bape, failure of court to define constituents of the
offense in charge to the jury is ground for reversal where conviction
obtained.
Approved in Jenkins v. State, 1 Tex. Ap. 356, reaffirming rule.
See note, 68 L. E. A. 50.
41 Tex. 234-237, EX PABTE BEABD.
Where Defendant Found Ouilty in Criminal Case by jury, and
appeal taken before entry of final judgment, district court may enter
final judgment nunc pro tunc, after a term has intervened aince
verdict.
Approved in Benedict v. State, 44 Ohio St. 685, 11 N. E. 128, re-
affirming rule. See notes, 4 Am. St. Rep. 828; 20 L. E. A. 146.
Distinguished in Power v. Lenoir, 22 Mont. 182, 56 Pac. Ill, nunc
pro tunc order appointing father guardian ad litem is unauthorized,
where father did not qualify as guardian.
TE3 ON TEXAS BEPORTS. 41 Tei. 337-249
BUBN T. STATE.
Irai of Acciued in indictment for bnrgUry, th«
>nded Bbould be stated, &nd the facta necessary
>rth.
ick y. Btate, 2 Tei. Ap. 519, WebBter v. Slate,
gaez V. State, 12 Tex. Ap. 553, and Simms v.
, all quaabing indictment oot aetting out facts
See note, 94 Am. Dec. 254.
Ui Burglary OaM to testify that hia house had
to commiaaioD of act for which defendant wb«
be believed defendant guilty of it, reversible
Bep. 3S3.
LSfS V. HIOKa.
I Contract, plaintiff cannot tntrodnee evidence
[tract, on ground of its ambiguitj, nnleaa de-
Mme by appropriate averments in petition,
etc. Coal Co. v. Lawaon, 10 Tei. Civ. 499, 31
rule; Building etc. Awn. v. Hamm (Tex. Civ.),
the instrnment is not ambiguoua, parol is not
ow one of the parties construed it. See note.
CAEL ▼. BTATE.
Principal and StintlM jointly and severally
ot, when forfeited, authorize judgment for full
[•f parties bound, nor when eucb bond forfeiteil
tl can judgment be rendered for fine and coBts.
. State, 8 Tex. Ap. 426. reaffirming rule; Thomas
497, 499, reversing judgment, wtiere it was for
gainst both principal and sureties,
niton T. State, 14 Tex. Ap. 34, holding where
i same amoant, which is full amount of the
e severally bound. Overruled in Tbompaon v.
3, 29 S. W. 789, judgment against sureties and
lunt of bond valid.
:aHT r. STATK
ar« Bestrlctad to caaes of homicide, where the
ig declaration is subject to investigation.
V. State, 3 Tex. Ap. 360, excluding dying dec-
irdered party. See note, 56 L. E. A, 365.
t and Iiangnage of Defendant on trial for mur-
ig, which shows, or tends to show, state of de-
V. State, 31 Tex. Cr. 236, 20 S. W. 563, re-
>te, 78 Am. Dec. 629.
41 Tei. 249-264 NOTES ON TEXAS BEPOETa
41 Tex. 249-253, STATE v. TETTLON.
In Escheat FroceedingB notice must be given b;^ p
persons intereBted, to appear and show cause wh^ t
Dot escheat.
Approved in HamUton v. Brown, 161 IT. 8. 273, ]
591, 40 L. 699, and Hamilton t. Brown, 161 17. B. 265,
586, 40 h. 696, both reafGrming rule; Wiederandere i
137, reveraiug judgment of eeebeat, where notice no
licatioD.
41 Tex. 263-268, HILL t. STATE.
Ti1e4 may be Held Incomplete until all ieauee q
are determined, and final judgment entered.
Approved in Gibson t. State, 3 Tex. Ap. 43S, and
13 Tex. A p. 91, both reafflrming rule.
No Allegation DeacrlptlTe of Identltr of what ie
to charge in iodictment can be rejected as surpl
variance in proof of such description is fatal.
Approved in Warrington v. State, 1 Tex. Ap. 1T4,
1 Tex. Ap. 463, Courtney v. State, 3 Tex. Ap. 261,
4 Tex. Ap. 626, Watson v. State, S Tex. Ap. 27, A
Tex. Ap. 361, Marwilsiy v. State, 9 Tex. Ap. 379,
12 Or. 134, 6 Pao. 42S, and M'Donnell v. State, 58
W. 106, all reaCarming rule; Missouri etc. By. v. P
15,92 S. W. 797, where judgment entered nunc pro tun
diet returned, statement of facta could be settled at sucl
V. Smith, 121 Iowa, 610, 96 N. W. 1111, motion for n
made within one year after entry of judgment tho
been returned prior to entry; Courtney v. State, 3 1
verting judgment where description of caw named ii
supported by proof; Sweat v. State, 4 Tex. Ap. 61(
judgment where description of animal named in indi
ported by evidence; Blum v. State, 9 Tex. Ap. 237,
meet where value of animal stolen alleged but not pi
Distinguisbed in Johneon v. State, 1 Tex. Ap. 120,
eient description in indictment to admit evidence dei
MiBcellaneouB. — Chapman v. Stote, 42 Tex, Cr. 13!
cited to point that defendant has right to be pre
41 Tex. 268-261, SANaEB T. HEAKKE.
Fraud may be Proven In Written Contract, thou)
■ubject to which fraudulent representations referred.
Approved in Davia v. Driscoll, 22 Tex. Civ. 16, 5i
sell V. Musgrave, 5 Tex. Civ. 479, 24 S. W. 359, both
Jesee French Piano etc. Co. t. Noian, 38 Tex. Civ
821, rescinding written contract for sale of piano mai
lent represeotations of vendor; Turner v. Orobe (Tex
906, allowing parol in a suit on a fraudulent aubaci
41 Tex. 261-264, ROACH T. STATE.
Hnibaod cannot be Examined as to itatemente of
of impeaching ber testimony. This rule obtains^ re;
of commencement of relation.
DN TEXAS EEP0ET8. 41 Tei. 265-285
State, 3 Tei. Ap. 312, reaffirmiag rule;
, 26 Atl. 1099, and Clubb v. State, 14 Tex.
testify, though teBtimODf in cocflict nith
party to action. See notes, 27 Am. Dee.
in refusing to allow witness to be re-
1 rule will not be revised, unless eliown
ed was unknown at previous eiamination,
ked before.
te, 3 Tex. Ap. 292, and Treadway t. State,
rming rule.
ig Witness must be left to discretion of
I will not be subject of reversal, unlesa
,te, 4 Tex. Ap. 673, McMillan v. State, 7
State, T Tex. A^T. 321, Creswell v. State,
V. State, 31 Tei. Cr. 474, 20 S. W. 1102.
x. Ap. 563, all reaffirming rule.
eaehing witoeBS in Boon t. Wet he red, 23
State, 13 Tex. Ap. 297, the inqairy must
itation in the eommunity where witness
ring knowledge of it, and not individual
[.nnowBky, 29 Tex. Civ. 457, 69 S. W. 213,
;ax lien on land of nonresident served by
«tement of evidenc* does not lender judg'
ttack.
iATHEB ▼. EENNABD.
sued to EralgnuitB under law of 1837, and
9, eould be transferred by grantees.
rges, 83 Tex. 664, 32 8. W. 875, and Capp
W. 54, both reaffirming rule.
irlBdlcUon to order sale of land of estate
for payment of estate's debts.
Bbinaon, 67 Tex. 377, 3 S. W. 534, decision
ling jurisdiction of probate of estate is
Dec. 654.
if original holder of eerttflcate, passes title
certificate, and deed from heirs of patentee
isignee.
Jcabborough, 59 Tex. 498, reaffirming rule.
iatiator can only be collaterally attacked
bows that eonrt did not have jurisdiction.
Brite, 4 Tex. Civ. fill, 23 S. W. S16, le-
T. BBOPHT.
»d for 3vx7, unless its judgment is without
)Tted on appeal.
41 Tex. 285-299 NOTES ON TEXAS REPORTS.
438
Approved in York v. Le Gierse, 1 Tex. Ap. Civ. 776, Faulkner v.
Warren, 1 Tex. Ap. Civ. 362, Adkinson v. Garrett, 1 Tex. Ap. Civ. 23,
Flanagan v. Oberthier, 50 Tex. 383, Barnard v. Tarleton, 57 Tex. 404,
Cooper V. Horner, 62 Tex. 363, Willis v. Morris, 63 Tex. 460, Western
Union Tel. Co. v. Jones, 81 Tex. 275, 16 S. W. 1007, Mutual etc. Ins.
Co. V. Hay ward, 88' Tex. 327, 31 S. W. 511, Lichtenstein v. Loewnstein,
2 Posey U. C. 384, and Matbis v. Oberthier, 50 Tex. 330, all reaffirming
rule.
41 Tex. 285-286, HYATT v. VENTEBS.
To EstabliBli Bigbt to Partition against survivor of eommunitj it
must be shown that estate is ready for distribution.
See note, 119 Am. St. Rep. 593.
41 Tex. 287-289, HALL ▼. STATE.
"Carrying Away" or "Asportation** is not necessary element to com-
plete larceny under our statute.
Approved in Doss v. State, 21 Tex. Ap. 511, 57 Am. Rep. 620, 2 S.
W. 815, and Coombes v. State, 17 Tex. Ap. 265, 266, both reaffirming
rule; Minter v. SUte, 26 Tex. Ap. 219, 9 S. W. 561, wounding and
pursuing hog, not sufficient to constitute theft. See notes, 57 Am.
Dec. 272; 88 Am. St. Bep. 565.
Miscellaneous. — Cited in Perry v. State, 44 Tex. 478, as to burden
of proof in criminal cases; Ake v. State, 6 Tex. Ap. 418, 32 Am. Bep.
589, miscited, referring to case of same name decided at Galveston
term, 1875, not reported.
41 Tex. 289-291, GALLOWAY ▼. STATE.
Where Explanation of Possession of Stolen ProjMrty by defendant
is such as to warrant well-founded doubt, defendant should be granted
new trial, the evidence of guilt being bare possession of stolen prop-
erty.
Approved in Miller v. State, 18 Tex. Ap. 38, and Boss v. State, 16
Tex. Ap. 559, reversing judgment where defendant convicted of theft
upon mere fact of possession.
41 Tex. 291-292, STATE ▼. EUBANKS.
An Information must Set Out the day upon which offense was com-
mitted, though generally it is not necessary to prove its commission
on that day.
Approved in Stephens v. State, 51 Tex. Cr. 407, 103 S. W. 904,
indictment charging offense to have been committed on June 31, 1906,
is bad; Barnes v. State, 42 Tex. Cr. 297, 96 Am. St. Bep. 801, 59 S.
W. 882, information must set out day upon which offense committed;
Coleman v. State (Tex. Cr.), 62 S. W. 753, failure to allege date of
commission of offense in an indictment is fatal.
41 Tex. 292-299, STATE ▼. HANDLE.
Under tbe Penal Code as Amended it is not required that an offense
should be expressly defined.
See note, 94 Am. Dec. 254.
Any Sclieme for Distribution of Prizes by chance is a lottery, and
its name is immaterial.
Approved in Bifeien v. State, 44 Tex. Cr. 415, 71 S. W. 975, hold-
ing indictment for establishing lottery defective as showing merely
ON TEXAS REPORTS. 41 Tex. 300-309
y; Preodergast v. State, II Tei. Cr. 363,
104, nickel ia the slot machine ia a lottery;
r. 241, 45 8. W. 571, held that "wheel of
note, 7 L. R. A. 603.
nro, though of eucb a character that ooe,
implies the other, may be joiaeil.
State, 42 Tex, 583, Pcen.iergast v. State,
.SO, 61 L. B. A. 904, and Nicholas v. State,
, 240, all reaffirming rule; Akin v. State
, an aggravated and common asMult may
Be notes, S3 Am. Dee. 24S; 9 L. B. A. 184.
Lltbed for any act or omisaion as a penal
I expressly defined and penalty affixed by
State, 4 Tex. Ap. 65, proviso that "doing
law to create nulsatiee, ia misdemeaaor,"
14 Tex. Ap. 56, sodomy is a penal oSennv
a V. State, 52 Tex. Cr. 24, 105 8. W. 181,
wful carrying of knuckleB "on or about"
defendant's person, is bad; United States
aching indictment setting out two distinct
r. STATE.
Is Convict of simple assault in trial before
bar to subsequent prosecution for aggra-
same act, it should be submitted to jury,
r umple aseault they should acquit, but
kted assault, exclusion of plea ia uo ground
V. State (Tex. Cr.), 64 S. W. 1060, Pritcb-
72, and Allen v. 8tat«, 7 Tex. Ap. 301,
V. SUte, 50 Ark. 530, 8 S. W. 837, and
p. 392, former acquittal by court without
it for aggravated assault. See notes, 5S
Sep. 114.
STATE.
men Tboft Is OommlUed, and who know-
B conunieeion, are alike guilty of the of-
is charge in prosecution of one defendant
tate, 23 Tex. Ap. 24, 5 8. W. 172, true test
iritb intent to uimmit offenset
t evidence of ownership.
1. a.) 89.
IBS V. STATS.
, the taw applicable to the ease must be
I charge, whether asked or not.
State, 2 Tex. Ap. 523, reaffirming rule;
Ap. 356, Luera v. State, 12 Tex. Ap. 261,
41 Tex. 310-320 NOTES ON TEXAS BEP0BT3.
Conner t. State, 23 Tei. Ap, 386, 5 8. W. 192, and CeBure v. 1
1 Tex. Ap. 26, all reversing judgment where proper charge not
in murder case, though not asked. See note, 7S Am. Dec. S29.
41 Tex. 310-318, IBION t. MniL&
An Administrator of Estate of one who conveved his homt
by deed, without joining wife, cannot intervene in suit be
third parties claimiug the land, and to assert invalidity of dei
Approved in Marler v. H&ndy, 88 Tei. 426, 31 S. W. 038, Sta
T. Eullum, 89 Tei. 435, 35 S. W. 4, Bieocchi v. Casey-Swaw
91 Tex. 265, 268, 66 Am. St. Rep. 881, 885, 42 8. W. 965, 967
Mexia v. Jjewis, 3 Tei. Civ. 118, 21 S. W. lOlB, all leafBrming
Smith V. Jarvis (Tei. Civ.), 24 S. W. 855, aniwer in snit foi
chase price of land getting up counterclaim for purchase ol
standing title of remote grantor's wife must allege estoppel a
from her abandoninent,
Wblle Convoyance by Hnsbaiul, alone, of homestead, is inope
to convey wife's interert, the administrator of deceased hu
is stopped from asserting title as against parties' claiming
Approved in Stallings v. HuUum (Tei. Civ.), 33 S. W. 103
affirming rule; Colonial etc. Mtg. Co. v, Thetfoid, 27 Tex.
153, 155, 156, 66 8. W. 104, 105, where wife did not join it
band's conveyaoee of community homestead, husband's heirs esti
but children could assert title to wife's half interest; Kitter
Uilwaakee etc. Ins. Co., 134 HI. 652, 25 N. E. 773, wife mus
in coDveyanc« of homestead, even if it be to her.
A Deed from Oua to Anotbei, for whose wife grantor held
funds, unaccounted for, which was made to satisfy the trust, :
voluntary conveyance fraudulent as to otheor creditors of gran
Approved in French v. Strumberg, 52 Tei. 109, admitting acl
edgment by daughter of advancement in release of intere«l of fe
estate to prove title; Bieocchi v. Casey-Swasey Co., 91 Tei. 2'
Am. St. Rfp. 888, 42 8. W. 968, creditor acquires no lien a
trust property even by judgment before conveyance. See
75 Am. Dec. 818; 36 L. R. A. 335.
Miscellaneous. — Parks v. Hartford Ine. Co., 100 Mo. 380, 12
1060, cited to point that mortgagee of homestead has insurab
terest to amount of mortgage.
41 Tex. 31S-319, HSWCOUB t. WAI.TON.
Verdict Till not b« S«t Aaid« toi Ambiguity where it can b
dered certain by reference to pleadiogs.
Approved in Dodd v. Gaines, 82 Tei. 432, 18 S. W. 619, core
ambiguous verdict by reference to pleadings; Alamo etc. Ins.
Lancaster, 7 Tex. Civ. 680, 28 S. W. 127, verdict finding "a
named in petition" sufficient.
41 Tax. 319-320, STATE y. BEOEHALL.
Bail Bond Babstantially ComfflyliiK With tbe Conditions c
at»tnte is not vitiated by omission to require principal in ter
appear and answer charge.
Approved in Brown v. State, 28 Tei. Ap. 70, 11 8. W. 1024,
T. State, 11 Tex. Ap. 531, reaffirming rule under similar facts.
5N TEXAS EEPOKTS. 41 Tex. 330-336
r. STATE.
at of Anatomy ie not competent to prove
tion of Bkeletoa.
State, 29 Tex. Ap. 462, 16 8. W. 248, re-
I Am. Bep. 412.
Jled to Prova S«x of Fnaoiis from bi-
unleBB called, and when opiuionB of otbera
Itate, 14 Tex. Ap. 636, phjBician must be
^e of human aDstomy.
Ill not be WaTTUit«d until the death of
le satisfactorily proven.
!, 40 Tex. Cr. 261, 262, 4fl 3. W. 618, reaf-
ite, 14 Tex. Ap. 631, Teversing judgment
)roveii; Kugadt v. State, 38 Tex. Cr. 692,
ty may be proven by circumstantial evi-
A. 40.
na V. GKAT.
it«d Land Stid to have all neceasarj
the Bale will b« Bet aaide and deed can-
prcBentationH were false, though vendor
Holland, 19 Tex. Civ. 391, 47 S. W. 384,
tc. H. Co. V. Brown (Tex. Civ.), 69 S. W.
employee in reliance on false statement
lister made for purpose of inducing exe-
tent of injury, not binding on employee;
t. 514, refusing to set aside sale wbere
a repreftentatioEB of vendor; Culbertson
493, 15 8. W. 701, 702, rescinding con-
[nistaken as to location of land; Du Bois
S. W. 530, rescinding sale and awarding
idulent repre*entation of vendor; Carter
W. 369, in sale of diseased hogs repre-
sale; Clack v. Taylor Co., 3 Tex. Ap. Civ.
money paid for land where proven that
of Eridenca, tbongh properly taken, will
e not asiigned aa error,
eader, 1 Posey U. C. 285, reaffirming rule.
TB T. UATHEWS.
ed 01 Set Aflld*, the court shall allow
here amendment might have been made
ith cause according to practice, but party
y the costs.
9.
. STATE.
01 on groaod of new evidence must show
of affecting verdict, and show due dili-
trial, or excuse want of diligence,
tate, 12 Tex. Ap. 278, refusing new trial
dant in procuring evidence ahown; Qon-
41 Tex. 336-354 NOTES ON TEXAS REPOETS.
442
zales V. Adou« (Tex. Civ.), 56 S. W. 550, refusing new trial where
affidavit did not show due diligence in inquiring about the evidence.
Recalling Witness, discharged from rule, to explain his testimony
is within discretion of court.
Approved in McMillan v. State, 7 Tex. Ap. 144, reaffirming rule;
Brown v. Sta;te, 3 Tex. Ap. 312, placing witnesses under the rule is
within the discretion of the court.
The Manner of Keeping Witnesses while under the rule is within
the discretion of the court, and its action will not be revised unless
its abuse clearly appears.
Approved in Bronson v. State, 2 Tex. Ap. 47, Ham v. State, 4
Tex. Ap. 673, Nolen v. State, 14 Tex. Ap. 480, Pierson v. State, 18
Tex. Ap. 563, Farris v. State, 26 Tex. Ap. 109, 9 S. W. 489, and Cres-
well V. State, 14 Tex. Ap. 16, all reaffirming rule.
41 Tex. 336-341, RICHEY ▼. HARE.
Community Property, not the Homestead, i« liable for the payment
of community debts, contracted before institution of suit for divorce.
Approved in Boyd v. Ghent, 93 Tex. 547, see 57 S. W. 27, holding
community property liable for community debt. See note, 23 L. R.
A. 240.
41 Tex. 342-352, BARNES ▼. STATE.
To Justify Conviction on Circumstantial Evidence Alone, facts
relied upon must be incompatible with innocence, and incapable of
any other reasonable hypo-thesis than guilt.
Approved in Hunt v. State, 7 Tex. Ap. 235, Barr v. State, 10 Tex.
Ap. 513, Pogue V. State, 12 Tex. Ap. 294, and State v. Willingham,
33 La. Ann. 539, all reaffirming rule; Kunde v. State, 22 Tex. Ap. 99,
3 S. W. 331, reversing judgment where circumstances not conclusive.
See notes, 62 Am. Dec. 182, 183.
Where Conviction is Sought on Circumstantial Evidence Alone,
every circumstance in support of defendant's statement should go
to the jury.
Approved in Noftsinger v. State, 7 Tex. Ap. 322, reaffirming rule;
Hill V. State, 11 Tex. Ap. 469, presuming malice where justification
not shown; Gallaher v. State, 28 Tex. Ap. 271, 12 S. W. 1090, re-
versing judgment where court refused to allow defendant witness to
show his state of mind regarding supposed motive for crime.
41 Tex. 362-354, SMITH v. STATE.
Where Child is Too Young to Testify as witness, any statement
made by it to others ought not to be admitted in evidence.
See note, 65 L. R. A. 317.
Distinguished in Etheridge v. State, 8 Tex. Ap. 134, sut^taining
judgment where mother of injured child was permitted to testify as
to admissions of child without objection.
Action of District Judge in Passing Sentence on defendant found
guilty of felony, and ordering him to penitentiary after motion for
new trial, and arrest of judgment overruled and notice of appeal
given, is error.
Approved in Pate v. State, 21 Tex. Ap. 194, 17 S. W. 461, reaffirm-
ing rule.
E8 ON TEXAS KEPOBTS. 41 Tax. 355-367
'EE T. KOBEBTSON.
y Bepalra upon homestead at wife'i zeqaeat
ibsence of huaband, iDEtiuction that contract
ibaad to bind him ia error.
heimer v. Thomaa, 63 Tax. 290, auataiDiag
Dn desertion of husbandj Fermier v. Brannan,
1. W. 702, and Golf etc. Ry. v. Badeker, 75
ep. SSe, 12 S. W. 856, eosfiniiiDg sale of com-
fe. for DeeeBBariea, upon husband's desertion.
205; 67 Am. Dec. 6S8; 64 Am. St. Bap. S68.
n T. Laney (Tei. Civ.), 27 3. W. 421, holding
eannot sell communitj property to pay ant«-
.TOLK T. BIOS£TS.
snt of HomeBtead, with fixed intention not
homestead not acquired, opeca aucb property
by huaband aa other community property.
Harvey, 1 Pospy U. C. 273, reaffirming mle;
8 Tex. 36, reaffirming rule on aecond appeal;
Tex. 152, 86 Am. St. Bep. 829, 58 8. W. 944.
ot to return is abandonment of homestead;
Tex. 274, removal to village to educate chil'
it of homeatead; Morris y. Oeiseeke, 60 Tex.
jf homestead by husband without wife't con-
Dec. 374.
: V. Avindino, 29 Tex. Civ, 592, 68 S. W. 828,
ead may be shown without proof that owner
: Um apon Boawstttad can enforce his lien;
rule apply that homestead rights do not at-
for.
>U V. Steele, 55 Tex. 5B6, reaffirming rule.
*p. 175.
tead with intention to abandon it eonstitutei
Upton, 56 Tex. 322, reaffirming rule; aine t.
[nestead not abandoned by absence where no
I V. McGow«n, 58 Tex. 608, setting aside uale
gment upon proof of its not being abandoned;
Jit.), 33 S. W. 545. aequiaition and permanent
'ad is best evidence of abandonment of old
etc. Co. V. Scripture (Tex. Civ.), 40 8. W.
one residence homestead. See note, 60 Am.
HKET ▼. AKDREWS.
t PTtqxnrty will be Used in illegal ocenpatios
for the hire or tale of such property.
. Corbflt, 69 Tex. 507, 6 S. W. 810, and Bow-
I Kan. 729, 10 Pac. :67, both reaffirming rule;
■an. V. Houek (Tex. Civ.), 27 8. W. 698, in
pany for payment of beer aold, mere knowl-
f of illegal combination on part of defendant
41 Tei. 367-383 NOTES OK TEXAS BE]
and otfa«rs rpgardiDg its sale by retsil i
25 Am. Rep. 678; 32 Am. St. Eep. 452; 15 ]
DistingoUhed in Hunetock v. Palmer, 4
295, refusing to give rent for honae of
knew purpose for wbicli rented.
41 Tex. 3S7-374, HABPEB T. STBO0D.
Od Appeal fiom Order of DiEtrlct Oontl
an estate, allegation that court erred in bi
sign me nt of error.
Approved in Clarendon etc. Co. v. McCli
W. 1102, 22 L. K. A. 105, reaffirming rule.
Fraudulent Addition of Nam« in Promisi
death of one of the makers, and allowauee
ground for disapproval hj court.
Approved in Morgan v. Vandermark, 1
firming rule; Collins v. Ball, 82 Tei. 268, S
W. 6IT, excluding altered deed from evidi
satisfactorily accounted for; Davis v. State
of bond renders it invalid where not Hiti
Any Altentton of an Instrument wbich
guage different in legal effect from that
material alteration.
Apiproved in Texas etc. Co. t. Smith, 4 '
W. 1075, First Nat. Bank y. Pritchard, 8
reaffirming rule.
Additlrai by PayM or Holder of Note o:
aa joint and several maker, after it has
consent of makers, discharges them from
Approved in Ford v. First Nat. Bank (
reafflxming rule; Texas etc. Lithographing
14 S. W. 1075, where a signature to a :
changed so as to make one signing corpo
vidlially. See note, 8« Am. St. Rep. 132.
Distinguished in Otto t. Halff (Tei. Civ.)
of note without fraudulent intent so aa t<
parties does not cancel the debt; Connor t.
S. W. 355, in absence of statement of fac
name will be presumed in support of the
OonsideTatiot) for WIilcli Note Rendered
tion was given may perhaps still consti
barred by limitations.
Approved in Otto v. Halff (Tex, Civ.), 3i
note without fraudulent intont so as to coi
ties does not cancel the debt.
41 Tex. 375-383, WOODAtJ. t. BXTSD.
Wbere Homestead Sold by Hnaband and
dren, and huKband dies insolvent, widow
property as homestead, nor will court set a
creditors.
Distinguished in Armstrong r. Moore, 5
gaged homei^tead pending administration a
not affect widow's claim.
rES ON TEXAS EEPOKTS. *1 Tex. 383-417
IE 7. BEVEEEUX.
B«UliiK Pioparty conditionallj' mortgaEed witb
ich fails to allege that mortgage has became
ning of the condition before sale, is bad.
I T. State, 1 Tei. Ap. 440, quashing iDdietment
,t intent; Moonej v. State, 25 Tex. Ap. 32, 7
idietment vhere property in mortgage not cor-
ftJH T. STATE.
roida of Statnto Is Siifflci«nt when statute aeti
stituting offense, and does not describe it bj
. State, 1 Tez. Ap. 60, T^ues v. State, 17 Tex.
Hate, 10 Tez. Ap. 19S, all reaffirming mie.
t Neg&Uva existence of facts which would re-
alitj.
Ichell T. State, 23 Tex. Ap. 585, 5 8. W. 140,
[e in indictment that the plajiog at game with
rate reiidence was fatall; defective.
Jiai, unless party threatened did, Oi refrained
which threatening paitj had no right to re-
equal ified threat.
V. State, 2 Tex. Ap. 175, and Viucent t. State,
'eaffiiming rule.
!S V. WILLIAMS.
J OfflcflTB ajid Ageota of Oonfedeiate QorarB-
T7ar, acted under instructions from d'apartment
Bcted bj sueh instructions from personal lia-
ec. 509.
act Fully Executed, eonrts will not interfere
0 who was injured thereby.
1 V. Williams, « Tex. Civ. 473, 25 S. W. 1050,
rS V. BHADLE.
H, entitled "An act to punish unlawful inter-
roperty or private rights," embraced more than
coDStitiitional, under section 24, article 1, con-
'. State, 42 Tex. 307, following rule; Qiddingii
X. 556, 26 Am. Kep. 327, act incorporating San
Gulf Bailroad unconstitutional; Clark v. Fiu-
. W. 344, act of .Tune 16, 1897, reducing com-
Ecers is not prohibited by article 3, section 56
Ibrecht v. State, 8 Tex. Ap. 220, 34 Am. Rep.
does not embrace more than one object; Bal-
m, 75 Ala. 538, act estiabliEhing an inferior
isdjction for Mobile county uuconstitutionst.
344.
QHT ▼, SODTHEKN PAC. B. B.
tetermluatlOD of special issues demands it, the
matter involved should be charged also.
41 Tex. 417-421 NOTES ON TEXAS BEPOETS.
446
Approved in Houston etc. Ry. v. Haxtnett (Tex. Civ.), 48 8. W.
775, when special issues are submitted, the jury should be instructed
regarding them.
Wlien Special Issaes are submitted to jury, they should be such
only as arise out of pleadings, and upon which judgment to be ren-
dered should depend.
Approved in Heflin v. Burns, 70 Tex. 355, 8 S. W. 51, where special
verdict is rendered, other facts cannot be looked to in aid of the
judgment.
41 Tex. 417-419, BOWMAN v. STATE.
Fact of Disqualiflcation of Jurors cannot be looked into on appeal
unless it appears by bill of exceptions that defendant exhausted
his peremptory challenges.
Approved in Buie v. State, 1 Tex. Ap. 458, Parchman v. State, 2
Tex. Ap. 244, Lester v. State, 2 Tex. Ap. 443, Tuttle v. State, 6 Tex.
Ap. 560, and State v. Pourchy, 51 La. Ann. 244, 25 So. 115, all re-
affirming rule; Loggins v. State, 12 Tex. Ap. 78, failure to exhaust
peremptory challenges waives objection to incompetent jurors; Cald-
well V. State, 12 Tex. Ap. 317, objection that jury was drawn by
judge should be made by challenge.
Defendant may Challenge the Array for the following cause only:
That the officer summoning jury acted corruptly, and willfully sum-
moned persons known to be prejudiced against defendant with view
to convict him.
Approved in SwoflPord v. State, 3 Tex. Ap. 88, and Castanedo ▼.
State, 7 Tex. Ap. 584, both reaffirming rule.
Not Oronnd for Challenge to Array that jury had been impaneled
in trial of other defendant and in prior trials of defendant and
another codefendant for same thefts.
See note, 68 L. B. A. 877, 879, 883.
Distinguished in People v. Mol, 137 Mich. 695, 100 N. W. 914,
68 L. R. A. 871, where several defendants charged with bribery aris-
ing out of same conspiracy, jurors sitting at trial of some of con-
spirators previously indicted, challengeable for cause.
41 Tex. 41&-421, PUUiEN v. BAKEB.
It is Error to Dismiss Petition for Injunction which contains suffi-
cient allegations to warrant relief, because of defective affidavit.
Approved in Love v. Powell, 67 Tex. 17, 18, 2 S. W. 457, and Wash-
ington Co. V. Schulz, 63 Tex. 34, reversing judgment dismissing peti-
tion containing averments sufficient to warrant relief.
Judgment Bendered in Case removed to district court by certi-
orari, in favor of two defendants, where one dead and not repre-
sented, is voidable by proceeding in court where rendered.
Approved in Parrott v. Craig, 3 Tex. Ap. Civ. 552, injunction is the
proper remedy against void judgment. See notes, 91 Am. Dec. 348;
126 Am. St. Rep. 638.
The Affidavit in Support of Petition for injunction must be posi-
tive, and state that facts stated in pica are true.
Approved in St. Louis etc. Ry. Co. v. Harkey, 39 Tex. Civ. 526,
88 S. W. 507, verification of application for continuance by attorney
for defendant that facts therein are true "to the best of his knowl-
edge, information and belief," is insufficient; Missouri etc. Ry. v.
Pietzsch, 10 Tex. Civ. 575, 30 S. W. 1083, dismissing petition where
affidavit made on hearsay.
I0TE8 ON TEXAS BEP0KT3. U Tex. 421-428
OE T. BASBITBT.
U« from District Ootut in case removed by cer-
i V. McAllister (Tex. Civ.), 30 3. W. 453, holding
stituting new cause of action may be set np by
on appeal to county tourt.
:JVZR T. KOBEBTSOM.
9 Acquired Dnnag Marriage, while partieB reside
nmou law applicable to marital riglit prevails,
in Texas with money thns acquired remaios sep-
jaband.
rn V. Weatherly, SO Ark. 240, 7 S. W. 34, re-
hen v. Bonner, 30 Tex. Civ. 587, 7X p. W. 291.
iA in state whose laws made her personalty the
he came to Tezns and bought land vrith money
rriage, land not community property; Thayer v.
77 8. W. 1052, where Tejas lands acquired by
with wife in New York, under whose laws all
r joint efforts was husband's, but wife bad dower
esumplion that land was community was rebutted;
e, 48 Wash. 584, 123 Am. 8t. Kep. 944, 90 Pac.
a. B.) 921, where money acquired in course of
ate is separate property of husband there, and
d bere, though spouses never domiciled here, land
( OrifBn v. McKinney, 25 Tex. Civ. 437, 62 S. W.
with wife's separate funds is her BCparate prop-
Am. Dec. 45; 62 Am. Dee. 479; 85 Am. St. Hep.
3.
all parties interested in the estate must be made
B T. Stewart (Tex. Civ.), 24 S. W. 387.
artltlOD of Estate, plaintiff cannot join claim
:ed party, for services rendered, with claim for
property of plaintiff converted.
I v. Pe^kin^ 22 Tex. Civ. EOO, 64 S. W. 1071, two
not be joined where libels and publications are
ATE V. HEATH.
rillftill7 Shooting Domestic Animal, with intent
St allege amount of injury done owner by act,
olaon V. State, 3 Tex. Ap. 32, and Street v. State,
ibing indictment not alleging amount of injury
V. People, lea III. 89, 45 N. E. 312, 35 L. K. A.
tment not alleging value of goods stolen. See
ep. 173.
rally EllUng, Halming, Wounding, poisoning, or
se, mute, cattle, etc., with intent to injure the
:d not less Chan three nor more than ten times
y done.
ton V. State, 3 Tex. Ap. 246, reaffirming rule. See
70.
41 Tei. 428-454 NOTES ON TEXAS EBPOETa
41 lex. 428^39, JOHNSON V. SHAW.
la UoBt Cum Wtera » Deed would be evidence a
irithout proof of execution, the power ander which it
executed will be presumed.
Approved in Storey v. Flanagan, 57 Tex. 654, Bat
Tex. 56B, Mills v. Herndon, 60 Tex. 357, Harrison v.
Tex. 129, 8 S. W. 615, Garner v. Lasker, 71 Tex. 43:
334, and Wells v. Burts, 3 Tex. Civ. 436, 33 S. W. 421
rule; Kirkpatrick v. Tarlton, 29 Tex. Civ. 27B, 89 I
that deed by agent it not thirty years old does not j
eration of transaction in connection with other trans:
mining issue of agent's authority and of subseque
Johnson V. Timmons, 50 Tex. 531, 532, reafGrnlng
appeal; Veramendi v. Hut chins, 48 Tex. 552, presu
convey after twenty years; Storey v. Flanagan, 57
deed thai) one made under ancient power of attorne
against latter.
Judgment Rendered npcm Verdict of Jnry Ondin)
which is unsupported by evidence, wUl be reversed.
Approved in Johnson v. Timmons, 50 Tex. 535, real
third appeal.
Title Extended bj SpMlal Oommlasloner of state a
Texas, appointed under act of March 26, 1S34, gr
party on frontier of Nacogdoches, was valid though
Approved in Johnson t. Timmons, 50 Tex. 533, 535,
on third appeal.
41 Tex. 446-449, SHAW T. BBOWN.
Wbere the Injury CompUluad of is Tainted witb
or willful wrong, exemplary damages may be re coven
See notes, 73 Am. Dee. 255; 50 Am. Dec. 767, 768.
41 Tex. 449-454, BOBEBTS ▼. TABBOBO.
Where the Enacting Clause in k Statute Is Oenera
objects, and a proviso is afterward introduced, sucl
be strictly construed.
Approved in Collin* v. Warren, 63 Tex. 315, Pax
Farmers' etc. Co., 45 Neb. 900, 50 Am. St, Rep. 596,
29 L, R. A. S53, and State v. Fisher, 119 iio. 351, 24
L. R. A, 799, alt reaffirming rule; Bead v. Henderson
S. W. 80, party must show himself clearly within pre
ment, in order to take advantage; Lesa r. Ohio, 9
S. W. 503, naming official bonds of state and county
eepted from operation of general language excludes i
Plaintiff may Testify to Declarations of deceased
fendant, in suit against firm, where one partner die
and his representatives not made parties.
Approved in Hieks v. Patterson, 1 Tex. Ap. Cir. !■
Wallace, 3 Tex. Ap. Civ. 514, both reaffirming ruh
Carat hers, 47 Tei. 26, permitting defendaot disclaimi
tify in suit between plaintiff and intervener; Stuar
Tex. Civ. 660, 28 S. W. 462, artiele 2243, Revised Stat
an action by surviving partner to enforce firm debt.
TES ON TEXAS SEPOBTS. U Tex. 150-462
execatoT of deceased; Eozie t. Farmers' etc.
6, 49 S. W. 639, permitting wife of deeeaBed
to decUrationa cancerniiig partnership affaire;
;e Neb. 737, 77 N. W. 70, where only doubtful
ritncsB he should be permitted to testify; St.
D. 146, 64 N. W. 932, party may testify to
11 administrator in snit by his successor.
K Certftln Fartlu from testifying on aeeoont
extended by implic&tion.
V. Wills, 69 Tex. 112, 5 8. W. 676. statutes
testifj' are liberally construed; Wallace v.
12 S. W. 283, permitting defendants fo testify
damages far unlawful killing of her busbaud;
Tex. 511, 14 8. W. 158, wife cannot testify
' against her husband where judgment would
property; Martin v. McAdams, 87 Tex. 227,
may testify to testator's signature to will;
Tex. Civ. 550, 30 S. W. 58, permitting wife to
ocs of deceased bnsbsnd; Sorensen v. Soren-
. W. 69, excluding witness expressly prohibited
ry V. Farmers' etc. Bank, 6 Tex. Civ. BIO, 26
rule; Missouri et«. Hy. Co. v. Peru-Van Zandt
117 Am. St. Hep. 468, 87 Pac. 82, 6 L. K. A.
mmon carrier becomes liable to consignee of
;oods in transitu equaling freight bill, refusal
Dsiguee on demand withont tender of freight
' Bailee to DellTer Goods to true owner, in
;hts of parties^ if made in good faith, is not
-d T. Wilson, 2 Tex. Ap. Cit. 190, reaffirming
itr Held by a Bailee may sue to recover it,
contract of bailment.
Gage, 1 Tex. Civ. 663, 20 S. W. 949, sustaining
bailee, where owner not party to bailment;
hries, 4 Tex. Civ. 338, 23 S. W. 557, plaintiff
time of eonveraioD if he waa owner at time
V. Moss, 6 Tex. Civ. 345, 23 S. W. 1116, su-i-
agaiost both bailor and bailee for conversion.
[IAMB V. LITTLE.
W Facta Perfectiiig Titl* subsequent to in-
e treated as new suit, and costs up to amend.
, Paul, 59 Tex. 46, and Fort Worth etc. Mill
Lp. Civ. 97, 98, both leaffirining rule,
of Oammunity to Mortgage and control com-
praisement must be filed, aa well as iaventory
41 Tei.463-J
NOTES ON TEXAS EBP0BT8.
ApproTed in Long v. Walker, 47 Tex. 177, inventory uboD
■igned bj admiDiatrator; DiekerBon v. Abemathj, 1 Posej
110, Bale b7 surviving buaband affects only bis balf of cotnm
piopnty, and not the claim of wife's heirs.
DiBtinguiBhed in Cordier *. Cage, 44 Tex. 534, where appraisi
was not filed; Ashe v. Yungst, 65 Ter. 639, (or the purpose ot p
debts the survivor may sell community property, without quali
under statute.
When Agreement for Pnrcbase of Land provides that balance
be paid it title is perfected to satisfaction of purchaser, lattei
not refnsa payment for mere unreasonable objection to title.
See Dote, 18 L. B. A. (n. a.) 741.
41 T«z. 463-4S8, TEBBELL 7. STATE.
Exceptions for Matters of Form of Indictment, or clerical
takes, must be taken before or at trial; for sucb defects a a
in arreBt of judgment cannot avail.
Approved in Mathews v. State, 44 Tex. 378, Raaberry v. St:
Tex. Ap. 667, Prasher v. State, 3 Tei. Ap. 279, Cox v. State, 7
Ap. 49S, Lowe t. State, 11 Tex. Ap. S61, Coatee v. State, 2
Ap. 17, and Base v. State, 17 Fla. 6S9, all reaffirming rule; Sen
v. State, 44 Tei. Civ. 234, 70 8. W. 215, mistake in date of fill
indictment cannot be corrected after presentation of motion i
rest of judgment; Jeasel t. State, 42 Tex. Cr. 73, 57 S. W.
objection th«t no complaint was Sled with information cann<
raiued by motion in arrest of judgment after verdict.
Oonita will Ta^ Judicial Notice of Location of places, where
location is recognized by statute.
Approved in Vivian v. Bute, 16 Tex. Ap. 264, Latham v. Sta
Tex. Ap. 30S, and Hoffman v. StaU, 12 Tex. Ap. 407, all ho
in absence of statute recognizing location of town, court cannot
judicial notice of its location.
Cleilcal Mistake not Amounting to substantial defects d(
vitiate information.
Approved in State r. Lo Sing, 34 Mont. 34, SG Pao. 522, upho
information charging murder in first degree though word "de
ately" was misspelled.
41 Tex. 468-472, CROW V. STATE.
Indicbnent Wblck in Setting out circnmatanceti of aggra
assault details facts partially constituting offense of threatenii
take life Is not bad for duplicity.
Approved in Dent v. State, 43 Tex. Cr. 153, B5 S. W. 634,
allegations ot nnne«esa«ry circumstances are mere surplusage;
ton V. State, 3 Tex. Ap. 410, 411, 30 Am. Bep. 147, 148, indict
for aggravated asMiult with pistol need not allege its being li
or that it was within carrying distance.
District Judge may Call and Examine other persons, on ap
tion for change of venue, as to existence of grounds for change
overrule application if satisfied alleged facta are untrue.
Approved in Buie v. State, 1 Tex. Ap. 454, Houillion v. St!
Tex. Ap. 544, and Ake v. State, 6 Tex. Ap. 419, 32 Am. Bep.
all reaffirming rule.
Diatinguisbed in Davis v. State, 19 Tex. Ap. 220, award of cl
of venue must be contested under article 583, Code of Criminal
cedure.
OK TEXAS EEPOET8. *1 Tex. 472-487
. la Assault, unless gon ia nii]oaded, and
» unloaded is npoo defeodaut.
3taU, 3 Tex. Ap. S33, State v. Herron, 12
. 57B, 29 Pae. 821, State t. Baker, 20 R. I.
8 At). 654, 39 L. B. A. 248, State v. Tripp,
0, and Myers v. Clearman, 125 Iowa, 463,
ing rulej Lipscomb v. State, 130 Wis. 242,
(lie in pTosecution for assault with intent
armed with dangeron* weapen. See note,
lara t. People, 24 Colo. 66, 48 Pae. 543,
person with intent to rob is assault.
BLOUNT,
ding Under WuTsntr Daed cannot resist
e for defect of title, nnleas proven that
jart, and eviction, or liability thereto by
of wihich he waa ignorant at time of pur-
r. Chadwick, E Tex. Ap. Civ. 485, and
X. 417, 19 S. W. 852, both reaffirming rule;
'ei. 113, 18 8. W. 340, and Norris v. Ennis.
gment for purchase price where purchaser
defect of title; Zimpelman t. Hipwcll,
rren v. Clark (Tei. Civ,), 24 S. W. 1107,
r of land, pre-empted by plaintiff, placing
other for portion of the laud ia proof of
ika T. Ripley, 8 T^ei. Civ. 159, 27 8. W.
r«teindiDg sale where parchaaer had no
le. See note, TO Am. Dec. 341.
STATE.
nent against several defendants, evIdeDce
I admiagible; indictment need not specify
taken togebher, constitute theft.
;ate, 1 Tex. Ap. 302, presence at carrying
acquiescence therein coiwtitatea party an
r ▼. BBOOK8.
T. Hurt (Tex. Civ.), 38 B. W. 193, cited
>f action ex delicto e*nnot b« joined with
r. STATE.
alMi Proparty must be considered in con-
>p«rty, circQDurtances of prisoner, and his
h posieaaion.
State, 44 Tex. 618, Watkins v. State, 2
Hate, 27 Tax. Ap. 477, 11 S. W. 484, all
v. State, 2 Tex. Ap. 19, charge to jury
property raiaes presumption of gvilt ie
Tex. Ap. Q3I, Mistaining indgment where
tas stolen; Hernandez v. State, 9 Tex. Ap.
-nt where court refused t '
41 Tei. 487-490 NOTES ON TEXAS BEPOETa
rule; Irvine v. State, 13 Tex. Ap. 501, sustaining chai
T. Sta-te, 24 Tei. Ap. 581, 5 Am. St. Eep. 909, 6 S. V,
V. State, 21 Tei. Ap, 406, 17 S. W. 254, revetsing
court charged that jurj migfht preaome guilt fio
Btolen properCj; Stokee v. State, 58 Miw. 6S0, ie\
where jury instructed to infer guilt from fact of
Straaten v. People, 26 Colo. 18S, 56 Fac. 907, refus
to rule is error. See notes, TO Am. Dec. 450; 101 A
D«cUratloiia of AccnMd, aa to hia possesaion of
made at time of arrest, are admiesible for or aga:
eipt a nation reasonable and oncontradicted, prMum)
removed-
Approved in Hanaah v. State, 1 Tei. Ap. 583, n^
wliere poasession by defendant explained wLtisfacto
State, 3 Tei. Ap. 54, admitting in evidence declar
mads at time property found in bis possession.
Wbere Accused Olres Beaaoaabls Explanation «f
stolen property, which is not contradicted, h« ahouk
Approved in Johnson v. SUte, 12 Tex. Ap. 391, r^'
where stat« did not disprove explanation by defeni
State, 17 Tex. Ap. 87, sustaining judgment where
plained; HiJler v. 8Ut«, 18 Tex. Ap. 33, and York
Ap. 442, reversing judgment wher« state failed to
ant's explanation of poseession; Willis v. State, 24
S. W. 859, refusal of instruction that if jary believe
defend-ant they should acquit is error.
Distinguished in William* t. State, 11 Tex. Ap.
that jury may infer guilt of theft from possession,
41 Tex. 487-188, STATE T. EABP.
Bftd Spelling in Indictment will not vitiate it, no
meaniog is obscured or changed.
Approved in Hudson t. State, 10 Tex. Ap. 22S,
Thomas v. State, 2 Tex. Ap. 294, sustaining indit^tm'
iog" spelled "gilding"; Somerville v. State, B Tex. Aj
indictment where word "eight" spelled "eiget"; Woo
Cr.), 51 S. W. 235, "one thousand eight hundred ann
sufficient in as indictment to show commission oi
1897.
41 Tex. 488-490, PEKET ▼. STATE.
Habeas Corpus Does not Operate as Writ of En
or have their effect; it deals with irregularities re
inga void.
Approved in Millikin v. City Counsel, 54 Tex.
Schwartz, 2 Tex. Ap. 81, Ex parte Slareo, 3 Tex. A
State, 5 Tex. Ap. 457, Ex parte Poland, 11 Tex. f
parte Peeler, 41 Tex. Cr. 241, 53 S. W. 858, In re Bi(
£0 Atl. 666, and In re Betta, 36 Neb. 385, 54 N. W.
iog rule; Ex parte White, 50 Tex. Cr. 474, 98 S. ^
of petitioner seotent^ed to penitentiary not avaitablt
pus; Hovey v. Sheffner, 16 Wyo. 276, 93 Pac. 312, 1
1037, 15 L. R. A. (n. s.) 227, refusing to discharge (
where at first trial jary discharged for failure to a;
ond trial accused's plea of former jeopardy based oi
TE8 ON TEXAS KEPORTS. *1 Tax. 491-501
r. State, 1 Tex. Ap. 154, Ez parte Sogers, 10
« Crofford, 39 Tex. Ct. 548, 47 3. W. 533, and
X. ST9, p^iij cannot ioterpoBe plea of autrefoia
puB; Smith t. Hess, 91 Ind. 429, and Ex parte
judgment of countj court cannot be revised on
Lt had jurisdiction I Ex parte Grace, 9 Tex. Ap.
r void ordinance entitled to relief on habeas
I, 32 Or. 184, 49 Fac. 1039, releasing paitj od
Ulegallr held. See note, 8T Am. at. Bep. 179.
BS V. STATE.
t. With Pn>p«r Seferenu to TIum tad PlaM,
ent received property, fraudulently converted
owner's consent, with intent to deprive owner
imbezzlement.
T. State, S Tex. Ap. 129, qnashing indictment
t; received money embezzled in capacity of
;e, 53 Neb. 328, 73 N. W. 749, offense charged
ifficient in indictment. Bee note, 98 Am. Dec,
tTE ▼. STATE.
Ussanlt WlUi Intent to Oommlt Mnidar cannot
lowing act done under immediate influence of
. by injuriee received where he began attack.
r. State, 5 Tex. Ap. 624, 825, Hardin v. State,
Pugh T. State, 2 Tex. Ap. 546, all reaffiiming
:ONDaON T. STATE.
"Did" in clause of indictment for mwrder
ed vitiates the indictment.
7. State, 72 Uiia. 521, 17 So. 229, reaflirming
e (Tex. Ap.), 11 S. W. 898, holding omission
ury indictment fatal; Jones v. State, 21 Tex.
, omission of word "to" before "kill and mur-
ent; Scroggics v. State, 36 Tex. Cr. 118, 3.)
if word "by" dcBcribing house "occupied S.,"
r burglary; Barfleld v. State, 39 Tex. Cr. 342, -
3jt of word "did" in charging act committeil,
Itftte V. WilliamB, 184 Mo. 264, 83 S. W. 75<;,
' murder defective for failure to allege strik-
feloniously; State v. Hagan (Mo.), 65 S. W.
mismon of the words "did" and "died" were
for murder.
Defendant Qnllt; of Mnrdn in Brst degree or
under the evidence jury might possibly have
lurder in tbe second degree,
v. State, 13 Ter. Ap. 253, Conner v. State, 23
, 192, both reaffirming rule; Walker v. Stale,
lion to find defendant guilty of killing animal
g unlawful, error.
a» InadmisHlhle, unless *made under immediato
aching death.
1 V. State. 49 Tex. Cr. 81, 90 S. W. 311,
9, dying declarations made seventeen hours
41 Tex. 5t)l-507 NOTES ON TEXAS REPORTS.
454
after deceased's statement that he was fatally shot, inadmissible
where two hours prior to statement deceased expressed doubt as to
Whether he was mortally wounded; Hunnicutt ▼. State, 18 Tex. Ap.
516, admitting declaration where party had no hope of recovery at
time of declaration; Fulcher v. State, 28 Tex. Ap. 472, 13 S. W. 751,
admitting declaration made where no hope of recovery. See note,
56 L. R. A. 395.
Where Record AMunes to Set Out Oath to Jury, it should set out
statutory oath, but recital that jury was sworn ''according to law"
ie sufficient.
Approved in Sutton t. State, 41 Tex. 515, setting aside verdict
where proper oath not administered to jury; Ewing v. State, 1 Tex.
Ap. 363, reversing judgment where record does not show jury sworn;
Ohambliss v. State, 2 Tex. Ap. 397, Leer v. State, 2 Tex. Ap. 496,
Everett v. State, 4 Tex. Ap. 160, and Mile* v. State, 1 Tex. Ap. 512,
all reversing judgment where proper oath not given to jury; Holland
T. State, 14 Tex. Ap. 184, reversing judgment where proper oath not
given to jury.
Indictment for Murder must charge death within year and day
after wound given.
See note, 3 L. B. A. (n. s.) 1022.
41 Tex. 501-504, AGITONE ▼. STATS.
Upon Proof That Defendant Drew and Pointed Pljrtol at prosecutor,
who wae at time going for his gun, instruction that "if pistol was
not loaded defendant should have shown it, and if instrument used
was one likely to produce death, the law pre&umes intent to kill,"
ie error.
Approved in Borden v. State, 42 Tex. Cr. 652, 62 S. W. 1066, in-
struction that if defendant used weapon likely to produce death, the
presumptions are against him; Walker v. State, 7 Tex. Ap. 630, in-
struction that law presumes intent to murder where party shoots
at another within carrying distance, error; Marnoch v. State, 7
Tex. Ap. 276, to justify homicide, attack must be such atf produces
reasonable expectation or fear of death or serious bodily harm.
In Order to Constltate an Assanlt, there must be an intent to in-
jure the party.
Approved in White v. State, 29 Tex. Ap. 531, 16 S. W. 340, re-
affirming rule.
41 Tex. 504-506, STATE ▼. JOHNSON.
Indictment for Keeping BlUiard-table for illegal gaming should
allege table kept fox playing some game shown to be illegal.
Approved in Longworth v. State, 41 Tex. 508, allegation that party
"did unlawfully keep, for the purpose of gaming, a table,'' sufficient;
Chiles V. State, 1 Tex. Ap. 32, keeping ten-pin alley w no offense;
Harris v. State, 9 Tex. Ap. 309, sustaining indictment against party
where his game licensed; Parker v. State, 13 Tex. Ap. 214, sustaining
indictment for gaming though game licensed; Overby y. State, 18
Fla. 184, playing '*keno" ie not an offense.
41 Tex. 506-507, STATE ▼. HOWERY.
Under Indictment for Keeping Cue-alley Table for purpose of gam-
ing, evidence that alley fees were bet on cue alley is admisi^ible.
ON TEXAS BEPOBTS. 41 Tei. S08-S15
'. State, 122 Ga. 585, flO S. E. 352, 69 L.
under agreement that loser shall paj for
able within Penal Code, aection 401. See
911.
OBTH V. STATE.
oing on Bllllard-talils, eonrt aliould eliarge
[light be shown to be illegal gaming table,
tate, I Tex. Ap. 367, 368, under the statute,
IB an offense, though played upon licensed
BUllards alone is played may be lawfully
■ betting money, drinlis, table charges, or
State, 9 Tex. Ap. 309, holding state cannot
dng of a game npon a licensed table.
>, Parker v. State, 13 Tex. Ap, 214, by act
, chapter S3, keeping and exhibiting table
it wav licensed, ia offense.
r. QOBDON.
to Sell* Foclaa that the offense is not dis-
r. State, S Tex. Ap. 682, Smalley t. SUte,
Hrming role; McQee v. State, 11 Tex. Ap.
Rte mode of accusation; Arlington t. State,
ng bond where offense described; Addiaun
t, "swindling" not vuffictent description in
lureties; Vivian v. State, 16 Tei. Ap. 264,
'theft" need not describe property stolen;
X. Ap. 101, bond not showing defendant
inse invalid; Brown v. State, £8 Tez. Ap.
ating offense in bond by name set out in
:ates v. Sauer, 73 Fed. 677, bail bond by
T in Texas, where defendant received emug-
wledge of defendant that goods were amug-
▼. STATE.
las vlll be B«v«iMd where this court ntia-
«nvicted according to law, and the error,
I SQch natQTe that it cannot be considered
State, E Tex. Ap. 403, reaffirming rule;
Vp. 27, reversing judgement in felony case
not given; Trammell v. State, 1 Tex. Ap.
where no statement of facte allowed by
ahl T. State, 1 Tex. Ap. 129, affirming
mt anfficient to sat>iain verdict, and no
)'Mealy r. State, 1 Tei. Ap. 182, reversing
structions not given; Kirh r. State, 1 Tex.
!nt whfte record shows defendant tried by
State, 1 Tex. Ap. 234, reversing jodgirent
to contain words "againet the peace and
nsford v. State, 1 Tex. Ap. 450, quashing
41 Tbx. 516-526 NOTES (
in diet meat not showing ani
ley V. State, 3 Tex. Ap. 6i;
of facts and indictment sul
4 Tex. Ap. 86, reversing jui
by judge; Erwin t. State, 1
proper instructionB not givi
OmisBloii to Olve Statut
reversible error.
Approved in Bray v. Stat
proper oath not given jury;
judgment where not shown
1 Tex. Ap. 518, CbambliM
State, 1 Tex. Ap. 512, all n
not given to jury; Clampitt
ment where proper oath no
Pae. 10S2, sustaining judgm
the same as preacribed Bta'
41 Tex- G16-520, MORBISO
Tbere la No Authority i
ia baaed on suBicieiit proof,
Approved in Johnson v. i
firming rule. See note, 28 1
A Cbarse to Jnry That
evidence against him and a
Approved in Harris v. St
Colo. 176, 58 Pac. 905. bo
Tex. Ap. IDS, charge that '
fact should be preferred to
■ame opportunity of knowin
41 Tex. SZ0-62S, STATE v.
Indictment for Swindling
full and clear to apprise
Approved in Wills v. Stai
ing rule under similar facts
41 Tex. 624r-62&, STATE v.
Indictment for Fiaadulec
fective because adminiatra
mortgage upon the property
Approved in Satchell v. 8
for fraudulently disposing
valid and unpaid.
41 Tex. 526, STATE t. HA
Neltlier tlie Unlawfnl 01
need be alleged in indictmt
Approved in State v. Ha
Tei. Ap. 46, Milgtead v.
State, 3 Tex. Ap. 233, all i
Colo. 64. 48 Pac. 542. Brow
ing iudictmeat not alleging
ON TEXAS BEP0BT3. 41 Tei. 527-347
T. STATE.
Property Alleged to b« Stolen, and there
claim, court must instruct jury to acquit,
'iminal or fraudulent.
ite, 1 Tex. Ap. 491, reaffirmiDg mle; Smith
. reverBin|[ judgment where court did not
bona fide purchaser; Winn t. State, IT Tex.
lent where intent not shown. See note,
lertT nay have been done under honest
.met jurj that tliey roust be satisGed that
1 mistake before they can convict.
State, 9 Tex. Ap. 429, reaffirming rule;
. 672, 60 8. E. 787, facts and ctrcumstanceB
ice in claim of right under which property
nent thereof, tend to prove lack of good
IN ▼. STAUXnrP.
e In Ctold, where value in currency alleged,
be rendered for amount in currency.
. Haney, 1 Tex. Ap. Civ. 395, judgment by
well pleaded by plaintiff.
rC T. STATE.
Accomplice should be corroborated, and
arefully the testimony of the accomplice.
V. State, 42 Tex. 264, fact that witness
in order to escape prosecution entitles de-
t his evidence needs corroboration; Preston
53 S. W, 128, where there is evidence tend-
s as an accomplice, the question should be
ee note, 98 Am. St. Bep. 177.
V. State, 1 Tex. Ap, 144, Camron v. State,
t. Bep. 766, 22 3. W. 683, both cited to the
ict attorney may, with the consent of the
li as .to one of several defendant* where
r. TAEBBOUGH.
ly Issue at Instance of Party in suit, or
ate, title, or interest appears of record in
»e legal representative of such party.
opinion in Steger v. Hume, 33 Tei. Civ.
W. 21, majority holding void contract of
irs who were about to appeal order allowing
t to prosecute appeal on promise of one
ty difference. See notes, 119 Am. St. Bep.
. STATE.
larrelB Between Parttea admissible to show
at time of assault.
41 Tex. 549-552 NOTES ON TEXAS EEPORTS.
458
Approved in McKinney v. State, 8 Tex. Ap. 639, Howard v. State,
25 Tex. Ap. 691, 8 S. W. 930, Sullivan v. State, 31 Tex. Cr. 488, 37
Am. St. Bep. 826, 20 S. W. 928, and Crass v. State, 31 Tex. Cr. 314,
20 S. W. 579, all reaffirming rule; Weaver v. State, 46 Tex. Cr. 626,
81 S. W. 44, upholding admissibility of testimony as to prior assault
on life of decedent day prior to present assault committed, to show
motive.
Wliere There is Ko Evidence ftom WMcli Jury might conclude of-
fense to be lower grade than that charged, court need not instruct
jury on lower grades.
Approved in Spivey v. State, 30 Tex. Ap. 344, 17 S. W. 546, law
of manslaughter and aggravated assault need not, and should not,
be charged when facts do not raise the issue.
Indictment for Shooting With Intent to Murder is established by
evidence that defendant shot at injured party and missed him.
Approved in Porter v. State, 1 Tex. Ap. 396, holding indictment in
case at bar within rule, although form of it was stated in statement
of facts or opinion.
The Statute Requires the Judge to Instruct, in felony cases, that
if the jury have reasonable doubt of defendant's guilt they must ac-
quit.
Approved in Lindsay ▼. State, 1 Tex. Ap. 330, reaffirming rule;
Black V. State, 1 Tex. Ap. 390, held error not to instruct as to rea-
sonable doubt in murder case.
No Verbal Charge shall be Oiven In Any Case, except misdemeanor
cases, and then only by consent of parties.
Approved in Lawrence v. State, 7 Tex. Ap. 194, reaffirming rule.
Overruled in Hobbs v. State, 7 Tex. Ap. 121, permitting judge to
instruct jury by reading from code.
41 Tex. 549-662, TUBNEB ▼. STATE.
Offense is Sufficiently Named In Ball Bond if indicated by name
of offense, or by direct statement of matters and things defendant
charged witl^
Approved in Smalley v. State, 3 Tex. Ap. 203, reversing judgment
on bond which describes different offense than named in indictment;
McLaren v. State, 3 Tex. Ap. 682, reversing judgment on bail bond
describing offense as "malicious mischief"; Morris v. State, 4 Tex.
Ap. 556, reversing judgment on bond where it does not describe an
offense known to law; Killingsworth v. State, 7 Tex. Ap. 29, ma-
licious mischief is not an offense known to the statute; Orrington
V. State, 13 Tex. Ap. 553, sustaining judgment on bond where offense
described, though in variance with indictment; Addison v. State,
14 Tex. Ap. 569, bond for theft will not support indictment for
swindling; Vivian v. State, 16 Tex. Ap. 264, bail bond for "theft
of animals" need only state "for theft"; Brown v. State, 28 Tex. Ap.
69, 11 S. W. 1024, offense described in bond by name in code is suffi-
cient; Mullinix v. State, 32 Tex. Cr. 117, 22 S. W. 408, bond not de-
scribing offense held invalid.
Where the Court Becognized and Treated Bail Bond as properly re-
turned by officer, omission of clerk to enter the file indorsement
thereon does not affect the judgment of forfeiture based on it.
Approved in Jones v. Wells, 3 Tex. Ap. Civ. 119, Whitman etc. Co.
V. Voss, 2 Tex. Ap. Civ. 492, both holding omission of file-mark does
not affect validity of 2ip£>cal bond from justice's court; Eggen-
>N TEXAS EEPOBTS. 41 Tei. 554-568
■4 Tei, 27S, 11 8. W. 1100, where bail
of deck and acted on b; court, objection
ate, when first urged in appellate court;
. Wagle; (Tex. Civ.), 36 8. W. 9S8, where
t filing of petition, jadgment b; default
lae file-mark on petition doea not coiro-
ect such file-mark; Leasing v. Oilbert, 8
E, paper ii deemed filed when placed in
DALHOtra.
• ba BerlMd in abaen«e 6f statement of
om pleadings charge ia necesBarilj' erro-
lount, 48 Tsz. 46, reafiSrming role.
!LD T. STATE.
Othera, withont pennisaion ef court, and
not Buffieient gronnd for new trial, nnless
te, 1 Tez. Ap. S75, 2S Am. Rep. 412, Earl;
via T. State, 3 Tez. Ap. 102, Cox v. State,
ite, 26 Tex. Ap. 704, fl 8. W. 277, all re-
Am. Dec. S3.
I Domestic Servant ia punishable only aa
tte, 33 Tbx. Ct. 172, 26 S. W. 62, reafiSrm-
Tex. Ap. 221, 2S Am. Bep. 406, reveraing
tie lervaut of greater offense than aimple
V. State, 21 Tex. Ap. 666, 2 S, W. 889,
ring water to honie does not constitnte
illiams v. State, 41 Tez. 650, party hired
throngh the house not domestic servant.
T. Learj, 8 N. M. 186, 43 Pac. B89, erro-
f the nature of affidavit required to change
r obtain writ of er-
Smjth, 57 Tez. 490, reaffirming role.
ITATE.
Donbt must be doubt sustained hj evi-
lan wonld act upon in important concerns
'er, 11 Kev. 348, reaffirming rule; Smith v.
iraing judgment where instruction set out
State V. Davis, 14 Nev. 446, defining rea-
7 L. R. A. 707.
to Honest or Felonious Intent with which
I given to accused.
41 Tex. 562-570 NOTES ON TEXAS BEPORTS.
460
Approved in Smith v. State, 7 Tex. Ap. 383, reversing judgment
where proper instructions not given, though not asked; Cunningham
V. State, 27 Tex. Ap. 481, 11 S. W. 486, instruction as to reasonable
doubt unnecessary where clearly proven that defendant is guilty, and
evidence uncontradicted; State v. Weckert, 17 S. D. 206, 95 N. W.
925, holding instruction in larceny case that where defendant tells
jury or jury becomes satisfied from evidence that original taking was
under honest or mistaken claim of right, jury must acquit, erroneous
as casting burden on accused.
Becord must Show Jury Sworn in Criminal Cases. Becital of dif-
ferent oath than prescribed by statute is ground for reversal.
Approved in Ewing v. State, 1 Tex. Ap. 363, reversing judgment
where record does not show jury sworn; Chambliss v. State, 2 Tex.
Ap. 397, and Smith v. State, 1 Tex. Ap. 518, both reversing judgment
where proper oath not given; State v. Angelo, 18 Nev. 429, 4 Pac.
1082, afSrming judgment where statutory oath substantially given.
41 Tex. 562-563, STATE ▼. HABTMAK.
Indictment for Assault and Battery need not allege offense unlaw-
ful, or committed with intent to injure.
Approved in Browning v. State, 2 Tex. Ap. 50, Ferguson v. State,
4 Tex. Ap. 157, Millstead v. State, 19 Tex. Ap. 491, and Brown v.
State, 2 Tex. Ap. 46, all reaffirming rule.
41 Tex. 563-665, STATE ▼. LEVL
Indictment for Obtaining Money or property under false pretenses
ig bad, unless containing distinct averment that such pretenses were
false.
Approved in Maranda v. State, 44 Tex. 443, quashing indictment
for swindling, where knowledge not alleged; Richardson v. State,
2 Tex. Ap. 322, indictment valid though tautological. See note, 25
Am. St. Bep. 385.
41 Tex. 565-566, STATE v. HILTON.
Indictment must Appear by Direct Averment to have been pre-
sented by a grand jury of the proper county.
Approved in Davis v. State, 6 Tex. Ap. 138, sustaining indictment
where proper county named; Walker v. State, 7 Tex. Ap. 53, quash-
ing indictment not showing presentment by grand jury of proper
county.
Defect in Indictment not showing presentment by g^and jury of
proper county may be corrected by amendment.
Approved in Thomas v. State, 18 Tex. Ap. 221, reaffirming rule.
41 Tex. 567-570, OILBBAITH v. STATE.
Evidence of Taking Other Property than that alleged stolen is in-
admissible, unless necessary to establish identity in developing res
gestae, or making out guilt on circumstantial evidence, or to explain
intent of accused.
Approved in Street v. State, 7 Tex. Ap. 9, Williamson v. State, 13
Tex. Ap. 518, and Williams' v. State, 24 Tex. Ap. 417, 6 S. W. 318,
all reaffirming rule; Cesure v. State, 1 Tex. Ap. 22, evidence of de-
fendant's previous incarceration for theft inadmissible on trial for
arson; Speights v. State, 1 Tex. Ap. 555, admitting evidence of
whereabouts of saddle upon trial for theft of horse; Persons v. State,
3 Tex. Ap. 244^ evidence that defendant was a convict at time of
a ON TEXAS REPOBTS. 41 Tei. 570-573
larda T. State, 3 Tex. Ap. 425, &dmitting
h az under iadietment loT assault with
?ez. Ap. 674, admittiog proof that certificate
fore T. State, 5 Tei. Ap. 254, error to admit
trom Mexico for murder, on trial for tbeft;
Tex. Ap. 613, admitting evidence as to
r atesling mare; Wright t. State, 10 Tex.
lence of theft of aeveral horses under in-
ne; White v. State, 11 Tex. Ap. 480, error
wiug elerk sold liquor to others than one
ividson V. Slate, 12 Tex. Ap. 218, admitting
nder indictment for theft; Kelley v. State,
nea v. State, 14 Tex. Ap. 95, both admitting
than one named being stolen at about the
tate, 14 Tex. Ap. 362, admitting proof that
yearling with her; Cartwright t. State, 16
lovementi and statements of defendant im-
part of res gestae; Smith v. State, 21 Tex.
54, 563, admitting evidence as to conapiracj
Williams v. State, 38 Tex. Cr. 135, 41 8. W.
ry inadmissible in trial for morder where
e V. O'Donnell, 36 Or. 227, 61 Pac. 893, and
}6 Cal. 671, 6 Pac. 702, both admitting eri-
id other stolen cattle in his poBsesaion than
>te, 62 L. B. A. 197.
rz T. statEl
. Vltlat« k Verdict, if ita meaning be evi-
1 V. State, 7 Tex. Ap. 102, and Walker v.
both reaffirming rule; Krebs v. State, 3 Tex,
let where words misspelled, though meaning
5 Tex. Ap. 571, suHtainlng verdict where
uity"; Wooldridge v. State, 13 Tex. Ap. 456,
spelled "fist" does not vitiate verdict; WTIaon
60 Pac. 697, upholding verdict of "murder in
notea, 28 Am. Bep. 439; 44 Am. Bep. 716; 100
T-actfl In OrHnlnal Ome, supreme court will
dictmeat will sustain charge and verdict,
iby V. State, 1 Tex. Ap. 644, Talley v. State,
. State, 2 Tex. Ap. 3, fiobson v. State, 3 Tex.
te, 3 Tex. Ap. 613, Carlson v. State, 5 Tex.
5 Tex. Ap. 461, and Kaskia v. State, 7 Tex.
rule; Keef v. State. 44 Tex. 5S4, refusing to
lere do statement of facts; Tramraelt v. State,
new trial where court refused to certify de-
rial on giound of newly discovered evidence.
court that it is material, and that he used
it before trial.
. State, 1 Tex. Ap. 62S. refusing new trial
used to obtain evidence; Bronson v. State,
> new trial where doubtful a* to diligence
41 TBI. 573-583 NOTES ON TEXAS EEPOETS.
need to diBcoveT evidence; Johnaoii v. State, 2 Tez. Ap. 4ST, ref
new trial where new evidence merely cumnlativa,
41 Tax. 673-680, HENBTB ▼. STATE.
In Alise&ee of Statement of Fact, mpreme conrt will not eon
assignments of error based on charges given or refused, nor on
cieney of evidence to Eustain verdict.
. Approved in Branch v. State, 1 Tei. Ap. 100, Trammell v. i
1 Tei. Ap. 124, Mahl v. State, 1 Tei. Ap. 129, Brooks v. Sta
Tex. A p. 3, Edwards v. State, 2 Tei. Ap. 52fl, Longle; v. Sta
Tei. Ap. 813, and Carter v. State, 5 Tei. Ap. 461, all reaffirming
State V. Morgan, 23 Utah, 219, B4 Pac. 358, applying rule whew
of jurors used eipressions to various persons showing bias ag
defendant and on voir dire answered tbey had neither fonnec
eipressed opinion as to guilt of defendant.
Indictment for Murder need not charge kind of malice, ezpre
implied, for which killing was done.
Approved in Perry v. State, 44 Tei. 475, "malice aforethough
indictment tor murder sufScient; Longlay v. State, 3 Tei. Ap.
"malice aforethought" sufficient in iudiettnent for mnrder; Boha
v. State, 14 Tez. Ap. 300, "malice aforethought" includes boti
press and implied malice; Sharps v. State, IT Tei. Ap. SOS, indict
for murder in common-taw form sufficient.
New Trial. Staonld tM Grantad where shown that a juror was i
diced sgaiDBt defendant, of which be had no notice at time of
Approved in Nash v. State, 2 Tez. Ap. 369, atatement by juror
"he would not be in defendant's shoes for ever so much" doei
show bias; Armendares v. State, 10 Tei. Ap, 45, granting new
whe^a jurors not citizens; Long v. State, 10 Tez. Ap. 199, grai
□ew trial where juror said "he naa a poor juror for defendi
Sewell V. State, 15 Tei. Ap. 63, 84, granting new trial where f
dice of juror shown; Brackenridge v. State, 27 Tez. Ap. 531
8. W. 633, Oraham v. State, 28 Tei. Ap. 584, 13 3. W. 1011, Leep
State, 29 Tei. Ap. 77, 14 8. W. 402, Washburn v. State, 31 Tei
354, 20 8. W. 715, Mitchell v. State, 38 Tez. Cr. 320, 36 S. W.
State v. Cleary, 40 Kaa. 299, 19 Pac. 782, and Boren v. State, 23
Ap. 38, 4 B. W. 466, all reversing judgment where prejudice of
was shown} Clough v. State, 7 Neb. 349, refusing new trial v
prejudice of juror known before acceptance by defendant. See
18 L. a. A. 474.
Distinguished in Allen v. State, 44 Tei. Cr. 209, 70 S. W. 87, »
juror attempted to be impeached by affidavits for remarks indici
opioion farmed against defendant, and juror ezplains aueh ran
or denies them, finding of judge not disturbed on appeal.
41 Tez. 680-683, HUBLOCK ▼. BEINBABDT.
In Salt on Hharlffa Bond for failure to sell attached property I
hands, under order for sale, the measure, of damages is value of g
not amount of judgment.
Approved in Jacobs v. Shannon, 1 Tei. Civ. 400, 21 S. W. 3Sf
affirming rule.
Snretlea on SherUTa Bond and sheriff's deputy cannot be join<
action on bond.
Approved in United States etc, Co. v. FoRsati, 97 Tex. 505, 80 (
76, in suit by state against taz collector »nd sureties for taxse
)TEa ON TEXAS EEP0ET3. 41 Tei. 5S3-394
not charged with criminal conduct, sureties can-
lir indemnitor against loss b; act amoanting to
1 Action against sheriffB' luretieB for nonfeasance
:t judgment rendered.
A. (n. a.) 30.
BHXNCI'TON T. STATE.
Indllng muBt allege that goods falselj obtained
>n intended to be defr&uded.
rdson V. State, 2 Tex. Ap. 322, sustaining indict'
;ical. See note, 26 Am. St. Bep. 3S6.
SON T. CATCHDiaS.
lOf shewing when a count)' was organized, this
it its courts had juriadiction to govern letters of
act of 1S46.
lie T. Edwards, 84 Tex. 501, 10 S. W. T73, courts
notice of the dates of organization of counties.
. S34.
[ T. BEINBABDT.
rera Debt la Dne no action of the court can be
rond the seizure of the property before the debt
V. Frazer, 2 Tex. Ap. Civ. 697, judgment in st-
il rendered before the debt is due.
Acbment based on demand not due aver that it
it support the writ, and it should be quashed and
other cause of action remains.
V, Zander, 77 Tex. 209, 13 8. W. 972, reaffirming
^Ulis T. Mooring, 63 Tex. 341, aOidavit need not
ebt is due where part due and part not due, if
on and affidavit the facts can be ascertained.
la Sned Out on Debt not due, affidavit and peti-
in debt wiil be dae.
)on V. Hobbj, 51 Tex. 149, sustaining judgment
: and attachment on note not jet due; Evans v.
qnashing attachment where petition and affidavit
I of action; Donnellj v. Elser, 69 Tex. 2S5, 6 8.
T. Gomprecbt, S9 Tex. 500, 35 S. W. 471, both
art of the claim is due the affidavit should show
id and how much has not.
tltated upon » Not« upon da; pajsble, save bj
pon debt not duo.
an v. Bement, 24 Tex. Civ. 569, 59 S. W. 910,
M court's acquiring jurisdiction are assessed and
See note, 65 Am. Dec. 147.
it of OaOM Of Action in petition majr b« eor-
:, upon payment of costs.
ent Ins. Co. v. Camp, 64 Tex. 526, reaffirming
> Tex. Civ. 77, 24 S. W. 340, amendment filed one
ct in petition where suit brought before accrual
ort Worth etc. Co. v, Milam, 1 Tex. Ap. Civ. 97,
41 Tex. 594-607 NOTES ON TEXAS EEPOBTS.
464
new cause of action may be set up in amendment where suit prema-
turely brought.
Where at Time of Filing of Exceptions to attachment suit plain-
tiff's demand was past due, court may reverse and remand the case,
inasmuch as plaintiff could proceed by amendment without attach-
ment on payment of costs.
Approved in Fire Assn. of Philadelphia ▼. Colgin (Tex. Civ.), 33
S. W. 1005, where suit on insurance policy was instituted prematurely;
Rabb V. White (Tex. Civ.), 45 S. W. 851, quashing of the writ leaves
suit as if brought without attachment.
41 Tex. 694--596, SMITH v. DEWEESE.
Mayor of City lias No Jurisdiction to try civil cases, unless con-
ferred by act of incorporation of the city.
See notes, 54 Am. St. Rep. 244, 246.
Injunction is a Proper Mode of Belief against a void judgment.
Approved in Glass v. Smith, 66 Tex. 550, 2 S. W. 196, reaffirming
rule; Wofford v. Booker, 10 Tex. Civ. 175, 30 S. W. 69, sustaining in-
junction against void judgment; dissenting opinion in Smoot v. Judd,
184 Mo. 508, 83 S. W. 518, majority refusing to set aside default judg-
ment on ground that return of service was false. See note, 31 L. B.
A. 204.
41 Tex. 696-598, STATE v. SNOW.
Indictment for Assault and Battery, where injured party unknown,
is sufficient if it charge assault made upon certain person unknown to
grand jurors.
Approved in Melton v. State (Tex. Civ.), 56 S. W. 67, sustaining in-
dictment charging theft of cattle, the property of some person to
grand juror unknown.
Distinguished in Ranch v. State, 5 Tex. Ap. 365, quashing indict-
ment which failed to state name of assaulted person and not alleging
name unknown to grand jury.
41 Tex. 698-601, TUXUS ▼. STATE.
Mere Knowledge That Offense is About to be Committed will not
render party guilty as principal, without proof of his aiding or abet-
ting its commission.
Approved in Flanagan v. Womack, 54 Tex. 51, reversing judgment
where proven that defendant assisted in ending trouble; Golden v.
State, 18 Tex. Ap. 639, bare presence at time of commission of crime
insufficient to sustain indictment; Kirby v. State, 23 Tex. Ap. 24,
5 S. W. 172, sustaining judgment where proven that defendant acted
with principal; Schackey v. State, 41 Tex. Cr. 258, 53 S. W. 878,
mere knowledge that murder has been committed and concealment
of one of defendants' connection with it does not constitute the per-
son a principal; State v. Orrick, 106 Mo. 120, 17 S. W. 178, sustain-
ing judgment where proven that defendant aided in crime.
41 Tex. 601-607, DEIANEY y. STATE.
Burning Jail Simply for the Purpose of Effecting Escape is not ar-
son.
Approved in Luera ▼. State, 12 Tex. Ap. 260, error to instruct that
intent may be presumed from means used. See notes, 81 Am. Bee. 66,
69; 20 Am. Rep. 271; 101 Am. St. Rep. 24, 25.
TES ON TEXAB KEPOBTS. il Tax. 808-61S
V. State, 23 Tax. Ap. 362, 59 Am. Eep. 7T4, 5
:ate, 32 Tax. Cr. 53S, 25 S. W. 123, both holding
re to jail ot calaboose in which he ia cooSned, iu
Ity of araon.
t a HOOM wu S«t on Flie is sufficient to eon'
not be conBumed.
V. State, 23 Tex. 303, 59 Am. Eep. 775, 5 8, W.
NSON T. STATE.
lee«d Stolen waa Tkken under claim of owner-
itructed that it must appear beyond reasonable
id not belong to accused, that he knew it not to
:h fraudulent intent.
II V. State, 43 Tex. Cr. 89, 63 S. W. 633, and
) Tex. Ap, 50, both reaffirming rule; Boyd v.
144, sustaining judgment where intent clearly
Lm. Dec. 274.
S T. STATE.
nSMt, When Foimd in posBesaion of property, as
lOBBeaBion are admissible.
irmon t. State, 3 Tex. Ap. 54, rejecting bill of
) defendant by another four days after he had
ttle; Taylor v. State, 15 Tex. Ap. 3fi0, rejecting
dant when made before he was charged with
that he was nnder suspicion therefor; Johnson
1 S. W. 576, 577, in cattle theft ease, subsequent
' (deceased at time of trial) aa to defendant
m to gather certain yearlings of hie is hearsay.
at Time of commissiOD of an act, material to
it, and expresBiTe of ita character and motive,
ims ▼. Btate, 4 Tex. Ap. 9, reaffirming rule;
Ap. 100, after evidence of an act done la put in
ay ahow his declarations, made at the tim«, ex-
to Defendant at time alleged stolen property
form part of act itself, and are admissible as
V. State, 28 Tex. Ap. 510, 13 S. W, 789. See
BBTS T. PAI^ORE.
tgage Stipulates for Payment of expenses for
tiff may recover reasonable amount expended
V. Paris Exchange Bank, S3 Tex. 561, Schmick
I. W. 84, Waters v. Walker, 4 Tex. Ap. Civ. 464,
V. Cole, 11 Or. 44, 50 Am. Rep. 454, 4 Pac. 522,
1 Woods, 3B0, 16 Fed. 90, and King v. BobiuBon,
all reafBrmiEg rule; Hamilton Gin etc. Co. v.
L B. W. 1057, stipulation for attorney's fees in
affect validity of note. See note, 55 Am. St.
-30
41 Tex. 619-634 NOTES ON TEXAS BEPORTa
4G6
Distinguished in Blankenship v. Wartelsky (Tex. Sup.), 6 S. W.
143, where note stipulates for attorney fees, if necessary to collect
note at law, they are not in nature of costs, but part of matter in
controversy.
41 Tex. 619-622, SI^TTEBY ▼. STATE.
Whether a Portion of the Human Body not mentioned in PaschaVs
Digest, article 2162, is a "member" of the body is a question of fact
for the jury.
Approved in High v. State, 26 Tex. Ap. 573, 8 Am. St. Rep. 494,
10 S. W. 241, whether "corner tooth" was a "front tooth," question
of fact for jury. See note, 65 Am. St. Rep. 772.
Offense of Mayhem Complete where one deprived of use of mem-
ber of body by willful act of another, though member put back in
place and grew there.
Approved in Republic of Hawaii v. Gallagher, 9 Haw. 589, charge
maiming by biting and tearing off ear is sustained by proof that
portion of ear bitten off though sewed on again.
41 Tex. 622-626, BRANCH ▼. STATE.
To Constitute Malicions Mischief under article 2345, Paschal's
Digest, the killing or other act mentioned, when inflicted upon dumb
animal, must be willful, wanton, without excuse and in a lawless
spirit.
Approved in Rainwater v. State, 46 Tex. Cr. 497, 81 S. W. 39, in
prosecution of slander, error to refuse charge that false words must
be shown to have been uttered maliciously, falsely and wantonly,
and defining such terms; Benson v. State, 1 Tex. Ap. 11, 12, sustain-
ing judgment where killing not justified; Uecker v. State, 4 Tex.
Ap. 236, reversing judgment where killing not willful; Lott v. State,
9 Tex. Ap. 207, admitting evidence to rebut allegation of willful kill-
ing; Rountree v. State, 10 Tex. Ap. Ill, reversing judgment where
killing not alleged as willful; State v. Prater, 130 Mo. Ap. 356, 109
S. W. 1050, applying rule under Rev. Stats. 1899, sec. 1988, relating
to cruelty to animals.
Killing Animal in Habit of Trespassing on one's crop during act
of trespass, to prevent destruction of crop, is not malicious mischief
where killing not wanton.
Approved in Jones v. State, 3 Tex. Ap. 230, 231, sustaining judg-
ment where fence around crop insufficient to turn stock; Davis v.
State, 12 Tex. Ap. 14, 15, reversing judgment where killing not wan-
ton; Thomas v. State, 14 Tex. Ap. 205, reversing judgment where
killing not willful; Reedy v. State, 22 Tex. Ap. 272, 2 8. W. 591, er-
ror to exclude evidence that animal was in the habit of trespassing
on crops. See notes, 47 Am. Rep. 310; 128 Am. St. Rep. 165.
41 Tex. 626-634, GUAaANDO ▼. STATE.
Where Affidavit Made by Respectable Person states that a defend-
ant charged with crime has become insane, a jury should be impaneled
to try issue of insanity before proceeding with trial.
Approved in Ex parte Trader, 24 Tex. Ap. 397, 6 S. W. 535, and
Toutsey v. United States, 97 Fed. 940, 943, both reaffirming rule;
Holland v. State, 52 Tex. Cr. 161, 105 S. W. 812, applying rule where
affidavit as to defendant's insanity filed after his plea of guilty;
McClackey v. State, 5 Tex. Ap. 331, reversing judgment where evi-
ITES ON TEXAS BEPOBTS. 41 Tez. 636-640
iluded; State v. Harrisoa, 36 W. Vft. T3B, 15 6.
A, partial imtanity no excnse for crime.
. State {Tex. Ct.), 68 S. W. 684, where after plea
jury attoraej filed affidavit that defendant in-
ter jniy to try saeh iagoe, refusal of request
nt of court that evidence of insanity could be
10 would be instructed to return special verdict
ror, in abaeoee of introduction of evidence of
dor tlia Law of
upon question of guilt
V. State, 3 Tex. Ap. 9S4, and Hurray v. State,
reversing judgment where jury not instructed
t upon degrees of offense.
Wtethei Accnood is mentally competent to make
L. 579.
to Tit lame as to whether accused was compe-
I defense on plea of insanity supported by aSl-
cured by trying issue after conviction.
A. 5S2.
IHEWB T. BUCKEB.
Ooufadeiate Money, executed between private
bosinese, is obligation enforceable to extent of
notes at time of contract.
rte V. Schulte, 45 Tex. 1ST, Meyers v. Dittmar,
'. Alexander, 51 Tex. 590, Taylor v. Bland, 60
McMichael, 6 Tei. Civ. 4SB, 26 B. W. SS3, and
S Tex. 43, 45, all reaffirming rule; Short v. Ab-
admitting evidence to show value of Confed-
of contract; McManus v. Scott, 48 Tex. 601,
ridge, 46 Tex. 494, both holding loan of Con-
consideration for contract; Edmonds v. Shea-
rot to charge jury that party cannot recover
money; United States v. Fuller, 4 N. M. (Johns.)
87, 20 Pac. 177, value of money embezzled need
w places value on it. See note, 31 L. B. A. 759.
fWET V. STATE.
itlBuaiice on Qronnd of absence of witnesses
ice used to procure their attendance.
as V. State, 17 Tex, Ap. 439, oveiruliDg motion
ot contain statutory requisites.
Si Cbaige in ease of misdemeanor comes too
irst time in motion for new trial.
tin V. State, 2 Tex. Ap. 9, Carr v. State, 5 Tex.
State, 7 Tex. Ap. 194, Wilson v. State, 15 Tex.
them etc. B. K., 2 N. D. 141, 33 Am. St. Rep.
right V Gillespie, 43 Mo. Ap. 249, and Ohio etc.
o C. C. 470, all reaffirming rule. See notee, 99
H. A. (c. B.) 914.
Fees for use of billiard table and playing of
than billiards will sustain conviction for viola-
Paschal's Digest.
41 Tax. 640-649 NOTES ON TEXAS EEP0BT8
Approved in Humpbrejs v. State, 34 Tex. Cr. :
buying of ciKsrs, soda water and ice cream by It
ere in game of dominoea is betting on the game;
34 Tei, Ct. 566, 31 8. W. 401, where loser of ga
table paj'B for the diiuka, it is betting on a g
articles 360 and 364 of Penal Code; Hall v. Stat
W. 122, betting of table fees ia a betting on th
121 Am. St. Bep. 6Sd.
41 Tex. 640-646, STEIX t. PASOHAL.
Fallnn to Aak Instmctloiu which might have
oue verdict will not estop party from asking new
erroDeoDB verdict apon charge given and facta.
Approved in Murcbiaon v. Warren, 50 Tex. 34, re
Distinguished in Backley v. Powlkes (Tei. Civ.
rehearing), failure to charge on limitations, wt
raised, is not error where no special charge cove
Utntgago upon Machliiwr in Factory, and oi
added, does not include machinery placed on exhib
property by one not party to mortgage.
Approved in Jordan v. Myers, 126 Cal. S69, SS 1
role where machinery exempt by statate.
Imagtn^iT and Hypothetical Profits are too n
basis of legitimate claim for damages.
Approved in Swasey v. Say, 3 Tex. Ap. Civ. 2J
Couch T. Parker, 1 Tex. Ap. Civ. 193, speculative
to be basis of claim; Haker v. Boedeker, 1 Tex. <
fees not recoverable aa part of daniagea in sni
41 Tex. 647-640, KELLET ▼. WHITMOBE.
Wife may Maintain Snlt to Enjoin .mortgage
where husband is absent or refuses to join in suit.
Approved in Huaaey v. Moser, 70 Tex. 46, 7 8. '
T. Harloe, 1 Tex. Ap. Civ. 489, Missoari etc. B;
Tex. Civ. 318, 49 S. W. 918, Cason v. Laoey (Tex. <
and Lyttle v. Harris, 2 Posey U. G. 26, 27, a1
Dority V. Dority, B6 Tex. 226, 71 S. W. 955, 60
separated from husband may soe to enjoin husbai
with her property where he mismanaged it and
Heidenheimer v. Thomaa, 63 Tex. 290, conflrmin
her separate estate; McDannell v. Bsgsdale, 71 ^
Bep. 730, 8 3. W. 625, wife becomes bead of fan
ment by husband; Cnellar v. Dewitt, 5 Tex. Civ.
sustaining sale by wife of community property up(
husband; Wylde v. Capps, 27 Tex. Civ. 114, 65 S.
wilt lie to restrain sale of homestead under judgme
60 Am. Dec. 205; 76 Am. Dec. 442, 443; 64 Am. St
On Dissolution of Injunction plaintiff may have
docket for purpose of amendment.
Approved in Avocato v. DeU'Ara (Tex. Civ.),
auit to set aside judgment on ground that it was o'
it is error, on dissolution of injunction against exi
miss bill without hearing on merits. See note, 11
NOTES
ON THJB
5 EEPOETS.
3 IN 42 TEXAS.
Oonit to proceed to final jadgmeot, where
jToceedingi is made hj bankrupt.
iements, 54 Tei. 354, state court does not
1 becaDM h« ia adjudicated a bankrupt;
:. CiT, 261, state court will take no notice
V in federal court, nulesB properljr pre-
wing Out of CoDTOrsion hy attorney of
eated whilst acting in a fiduciary eapacityr
lankruptcy,
. LammiE, 43 Tex. 229, attorney holding
d forward payments does not act in fidu-
lark, 52 Iowa, 159, 35 Am. Kop. 263, 2 N.
ent debt by judgment does not bring debt
rge by bankruptcy; Easley v. Bledsoe, 59
[ell, 111 Ind. 3, 11 N. E. 783, it is proper
lebt, where discbarge in bankruptcy is in-
; Young t. Grau, 14 B. I. 341, a debt is
or when but for bis fraud it would not
Parmsnter, 74 Vt. 62, 52 Atl. 74, where
mingled estate's funds with own, he was
ropriatiou witUn Bankruptey Act, tec. 17.
; 33 Am. Bep. 237.
an V. Alexander, 53 Tax. S6S, agent doe*
ty-
to for history of facts, f^nagan v. Pear-
rgMl In bidlctment are stated in plain anS
itain esMntlal constituents of the offense
required.
(469)
42 Tex. 10-34
NOTES ON TEXAS BEPOBTS.
470
Approved in West v. State, 8 Tex. Ap. 121, reaffirming rule; Smith
V. State, 1 Tex. Ap. 622, words "deliberately and willfully" indis-
pensable to validity of indictment; Mattingly v. State, 8 Tex. Ap.
349, indictment which fails to show on its face that false statement
is material is defective; Gabrielsky v. State, 13 Tex. Ap. 438, indict-
ment for perju/y must negative specifically the truth of the alleged
false statement; Powers v. State, 17 Tex. Ap. 436, not necessary to
state in indictment 'for perjury whether case in which perjury was
committed was prosecuted . on information or indictment; Anderson
V. State, 18 Tex. Ap. 18, indictment for perjury in criminal trial must
show jurisdiction of court over such trial.
In Indictment for Perjury, in a trial before a justice of the peace,
it is sufficient to allege, as to his authority to administer the oath,
that he is a justice of the peace and had jurisdiction to try the
case.
Beaffirmed in Stewart v. State, 6 Tex. Ap. 187, Waters v. State,
30 Tex. Ap. 286, 17 S. W. 412, and People v. De Carlo, 124 Cal. 465,
57 Pac. 384. See notes, 85 Am. Dec. 496; 124 Am. St. Bep. 662, 664.
42 Tez. 10-12, SEDBEBBY ▼. JONES.
Where Affidavit of Defendant seeking to set aside default judgment
besides meritorious defense shows agreement for a compromise, and
counter-affidavit does not negative defendant's belief of such agree-
ment, the judgment should be set aside.
Approved in Scottish Union etc. Ins. Co. v. Tomkils, 28 Tex. Civ.
160, 66 S. W. 1110, where cause tried in absence of defendant and
his attorney, who resided in distant county and had reasonable ground
to believe case would not be reached so soon, new trial should be
granted on application at same term showing meritorious defense;
Springer v. Gillespie (Tex. Civ.), 56 S. W. 370, instance where default
judgment against nonresident was set aside because of mistake of his
local attorneys.
42 Tez. 12-14, ALLEN v. STATE.
Indictment for Perjury, since adoption of Penal Code, must aver
that the statement upon which the perjury is assigned was deliberately
and willfully made.
Beaffirmed in Smith v. State, 1 Tex. Ap. 622. See notes, 85 Am.
Dec. 495; 124 Am. St. Bep. 678.
Indictment for Perjury is good if each of the essential constituents
of the offense, as defined in the code, are alleged in plain and intel-
ligible words.
Approved in Bradberry v. State, 7 Tex. Ap. 376, West v. State, 8
Tex. Ap. 122, Brown v. State, 9 Tex. Ap. 172, Cox v. State, 13 Tex.
Ap. 483, and Powers v. State, 17 Tex. Ap. 435, all reaffirming rule;
Gabrielsky v. State, 13 Tex. Ap. 438, and Turner v. State, 30 Tex.
Ap. 692, 18 S. W. 792, both holding indictment for perjury must nega-
tive specifically the truth of the alleged false statement.
42 Tez. 18-34, ANN BEBTHA LODGE v. LEVEBTON.
Wife, When Forced by Acti<m of Husband to assume and fulfill
duties of feme sole, or head of family, may exercise rights and priv-
ileges of such position.
Approved in Heidenheimer v. Thomas, 63 Tex. 290, reaffirming
rule; Dority v. Dority, 96 Tex. 226, 71 S. W. 955, 60 L. B. A. 941,
yiES ON TEXAS BEPOBTS. 12 Tex. 1&-31
ife separated from husband to Hue to enjoin bim
ith her props rt; for divertiDg revenues; Ware
i49, married woman, abandoned bj boiband, may
eommunit; property stolen fiom her poHesslon;
r. Civ. 143, 60 S. W, 359, note bj wife not bind-
seseariea or to prsservs her separate estata. See
S.
uU etc. B7. T. Bedeker, 75 Tex. 313, Id Am. St.
i56, wheie parents living together, father's con-
plojment of minor aon to relieve emplo^rer from
to son; Cason v. Laney (Tei, CiT.), 27 8. W.
person cannot sell eommunitf property to pay
'*fl'*1"g! to which exceptions have been sustained
dment of pleadings held to be defective. .
icock V. Hamilton, 62 Tez. 160.
PlndlnK is held to be defective ia entitled to
weU V. Lamkin, 12 Tei. Civ. 34, 38 8. W. 317.
paiss to try title, where defendant has no title,
lefense that plaintiff has not paid valuable eou-
;le.
ht V. Dnnri, 73 Tex. 2B5, 11 8. W. 331, reaffirm-
ew York etc. Land Co., 11 Tei. Civ. 288, 32 S,
0 try title, evidence of payment of consideration
:le ia not essential to recovery; Stephens v. Moti,
. 100, in action of treapaaa to try title, plaintiff
itled to posfession.
lontTkct for Land, whether fnlly or partially
on even though merely by nay of defense against
Dg oar is upon party asserting it.
ill V. Ivey (Tex. Civ.), 31 8. W. 244, where the
it; Bone v. Cowan, 37 Tex. Civ. 521, 84 8. W.
to purchase additional school lands from state
lie title to home tract, by verbal purcbase from
ties him to apeeiflc performance of contract.
M Uoney, making improvements (less In value
esaion will not justify decree of specific perform-
'arty v. May (Tex. Civ.), 74 8. W. 806, and
k V. Enstis, 8 Tex. Civ. 355, 28 8. W. 229, both
gghnrst v. Texas Co., 39 Tex. Civ. 609, 87 8. W.
ealty are upheld on theory of estoppel; West v.
'. 273, 87 S. W. 196, mere powession under parol
donee to specific performance and diveiiture of
V. Wilson, 5B Tex. 38, verbal agreement to coo-
enforced on account of occupancy and valuable
after death of vendor; Eason v, Eason, 61 Tex.
lents by alleged grantee are insignificant, and
valuable than such improvements, specific per-
.greement to giant will not be enforced; Bobert-
lex. 261, and Bradley v. Owsley, 74 Tex. 71, 72,
lent of purcbaee money and posseHsion of land,
nable ImprovenieiitB, will not exempt contract
Ida; Ward v. Stuart, 62 Tex. 335, and Mnnk v.
42 Tex. 34-38 NOTES ON TEXAS BEPOETa
Weidner, fl Tos. Civ. 494, 29 8. W. 410, payment of ptirphnse
not sufficient to take parol contract to convey ant of statute of f
Weatherford Mineral Wells etc. v. Wood, 88 Tex. 194. 30 8. V
28 L. B. A. 526, parol promise, upon sufficient consideration, U
annual pass for ten years not within atatate of fraoda;
T. Powell, 6 Tex. Civ. 4S, 25 8. W. 474, tender of deed is no
perf orraanee ; Bondies v. Ivey, 15 Tei, Cir. 294, 39 S. W. 151
session and making improvements not sufficient to take agrt
to convey out of statute of frauds; Aiken v. Hale, 1 Posey O, t
verbal agreement to convey interest in land acquired by cert
to one who secures patent for it cannot be specifically enforce
DittiDgaished in Castleman v. Sherry, 42 Tei. 62, Ponce ^
Whorter, 50 Tex. 571, and Wells v. Davis, 77 Tei. 638, 14
237, payment of purchase money, possession and making of vs
and permanent improvements take grant out of statute of f
Hibbert v. Aylott, 52 Tex. 533, possession and erection of va
buildings take contract out of operation of statute of frauds;
dridge v. Hancock, 70 Tez. 21, 6 S. W. 822, possession and n
valuable improvements take grant of'land out of statute of f
Baker v. De Freese, 2 Tex. Civ. 527, 21 S. W. 9B4, parol gift, i
panied by possession and valuable improvements, is exempt
statute of frauds; La Master v. Dickson, 17 Tez. Civ. 476, 43
913, whore value of improvements by donee did not exceed
wsre held sufficient to take parol gift out of statute of frauds;
Nat. Bank v. Convery (Tex. Civ.), 49 8. W. 927, where the im
menta exceeded in value the amount claimed in rejected pie:
for rent, it was sufficient ground upon which to base an eqv
title.
Equity con Enforce Parol Contract for sale of land only on f
of preventing fraud.
Beaffirmed in Jones v. Carver, 59 Tex. 296, PoacB v, McWl
50 Tex. 572, Sullivan v. O'Neal, 06 Tex. 435, 1 8. W. 185, Wool
V. Hancock, 70 Tex. 21, 6 S. W. 822, Bradley v. Owsley, 74 Ti
7E, 11 S. W. 1052, and Morris v. Oaines, 82 Tex. 258, 17 8. ■«
See note, 3 L. fi. A. (n. s.) 791.
Bare Possession Under Verbal Contract for sale of land doi
warrant specific performance of contract on application of pur(
See note, 3 L. B. A. 794, 800.
Where Suit was for Undivided Half of Irf>t, verdict for hal:
in controversy in lot ia responsive to issues.
Cited in Smith v. Conner, 98 Tex. 436, 84 S. W. 816, supreme
cannot issue mandamus to compel court of civil appeals to cert
it question decided, on ground that such ruling eonflictA with
TuHngB of supreme court.
42 Tex. 34-38, DE FOBEST ▼. MTT.T.KB.
Separate InteTest of Faitnar may be seiiied and sold tinder
tion, subject to rights of other parties, and creditors are not
to wait until those righti are ascertained, but may require i
to proceed to sell.
Approved in Mcyberg v. Steagatl, 51 Tex. 354, reaffirming
Bradford v. Johnson, 44 Tex. 383, and Lee v. Wilkins, 65 Tei
holding partnership effects subject to execution for separate
of one partner; Grant v. Williams, 1 Tex. Ap. Civ. 154, on tht
of right to property claimed by partnership, neither rights of
;S ON TEXAS EEPOBTa. i2 Tex. 38-53
lartners, nor between flrin and its creditor*
: notes, 57 Am. St. Rep. 439; 46 L. R. A. 488.
ute, CuTTie v. Stuart (Tei. Civ.), 26 3. W.
d Statutes, provides the mode of levying on
[tartnerBbip property.
Y y. WOOD.
in Ttuit Acconnt contained no itemized atate-
motion for new trial.
V. Blouat, 48 Tez. 45, objection to evidenee
t is offered.
in absence of statement of facta, on aceonnt
iridence apparent from bill of exception!, it
lat court had erred, but tbat error produced
Tty.
V. Sohurenberg, 60 Tex. 614, Miaeouri Pacifle
X. 33fi, 12 3. W. 853. Atchison etc. By. v.
I S. W. 469, and Goodale V. Douglas, 5 Tex.
all reaffirmiog rule; Castellano v. Marks, 37
731, where action was to recover penalties
lers' bond, and bond and license excluded as
t may review ruling without introduction of
g breach; Gatlin v. Street, 40 Tex. Civ. 307,
ule in action for damages suffered hy vendee
er V. Ferryman, 59 Tex. 107, failure to file
lin prescribed time precludea supreme court
er there was error in ruling of district court;
Ap. 566, in absence of statement of facts,
1 material averoients in Information were
:.and Co. V. Hyland, 8 Tex. Civ. 619. 28 8. W.
nent of facts, supreme court will assume that
«Bs based on evidence not objected to.
re allowed to be sabatituted only when the
lent in amount, or when signed by but one
Hurmann, 85 Tex. 3, 19 S, W. 886, and Den-
378, 27 So. 383, both reaffirming rule; New-
. Ap. Civ, 37, appeal bond made payable to
instead of "J. 8. N. ft Bro.," is fatally de-
rby, 1 Tex. Ap, Civ. 148, where wording o£
id is without senae or meaning, bond is de-
well, 1 Tex. Ap. Civ. 243, appeal bond mis-
dgment is defective; Garrett v. Gay, 1 Tex.
inatice'B docket, purporting to be bond is de-
Minton V. Oziaa, 115 Iowa, 150, 88 N. W.
on appeal from justice court is signed only
^ourt cannot anthoriEe amendment thereto,
s T. Ertea, i Tex. Civ. 208, 23 8. W. 411, de-
beint; jurisdictional matter bond held to bo
;or (Tex. Civ.), 35 8. W. 1083, appeal bond
able to appellees "or their certain attorneys"
laton etc. R. B. v. Bed Cross etc. Farm {Tex.
bond on appeal from justice court cannot btt
42 Tex. 53-72
NOTES ON TEXAS BEPOBTS.
474
allowed after expiration of time limit where original bond did not
fulfill statutory requirements.
42 Tex. 58-59, COOK Y. STEEL.
Application to Set Aflide Default must show facts making it appear
that defendant has a meritorious defense.
Beaffirmed in Brown v. Pfouts, 53 Tex. 224. Approved in El Paso
etc. By. Co. v. Kelly (Tex. Civ.), 83 S. W. 860, upholding refusal
to set aside default in action by servant for damages for personal
injuries.
Orowing Orops may be mortgaged.
Approved in Silberberg v. Trilling, 82 Tex. 526, 18 S. W. 592, re-
affirming rule; McKinney v. Ellison (Tex. Civ.), 75 S. W. 56, notice
by plaintiff to defendant given in fall of 1899 that he had mortgage
on A's crop is of no force if referring to drops of 1900 and 1901;
Dupree v. McClanahan, 1 Tex. Ap. Civ. 314, mortgage on unplanted
crop will become valid lien when crop comes into existence. See
notes, 46 Am. Dec. 713; 75 Am. Dec. 598; 76 Am. Dec. 725; 23 L.
B. A. 477, 450.
42 Tex. 59-62, OASTLEMAN y. SHEBBY.
To Charge Jury That Evidence of Admissions of Party is danger-
ous and liable to abuse is error as charge upon weight of evidence.
Approved in Massey v. State, 1 Tex. Ap. 571, to charge jury that
certain facts constitute suspicious circumstance is error as charge
upon weight of evidence; Hanna v. Hanna, 3 Tex. Civ. 54, 21 S. W.
721, charge must not assume as true a fact controverted by evidence,
nor give undue prominence to, nor intimate, opinion upon weight of
testimony; St. Louis etc. By. v. Carden (Tex. Civ.), 26 S. W. 748, it
is improper to charge what facts would, as matter of law, establish
a partnership; Keith v. State, 157 Ind. 386, 61 N. E. 719, upholding
refusal of instruction in prosecution for murder embodying reasons
why confessions are received with great caution; Unruh v. State,
105 Ind. 122, 4 N. E. 455, error to embody in instruction a statement
of law, from text-book, as to value of admissions of parties. See
note, 72 Ank. Dec. 545.
Negro Sold and Deliyered as consideration for and possession of
land is sufficient to take sale of land out of statute of frauds.
Approved in Ponce v. McWhorter, 50 Tex. 571, payment of pur-
chase price, pogsession, and making of improvements take sale of
land out of statutes of fraud; WestfaJl v. Perry (Tex. Civ.), 23 S. W.
741, joint erection of a windmill under agreement to share its ex-
pensee kitd use for three years is not without statute of frauds.
42 Tex. 62-72, STATE y. BB00K8.
Deputy Sheriff is an Officer liable to indictment for embezzling
money collected by him as taxes.
Approved in Griffin v. State, 4 Tex. Ap. 410, reaffirming rule;
Crump V. State, 23 Tex. Ap. 617, 5 S. W. 183, justice of the peace
is county officer and liable to indictment for embezzlement; Terri-
tory V. Hale, 13 N. M. 188, 81 Pac. 584, upholding sufficiency of
description of money and its value in indictment for embezzlement
of public moneys. See notes, 65 Am. Dec. 79; 98 Am. Dec 168; 87
Am. St. Bep. 47.
ON TEXAS BEPOBTS. 42 Tez. 72-81
llMCclvmmt, it IB Dot necessBTy to dewribe
monef to embezzled.
State, 28 Tez. Ap. 141, 12 S. W. 736.
e, 46 Tex. Ct. 289, 81 S. W. 743, upholding
lictment for misappli cation of pablie funds
t the United States of America."
r. SNOW.
lajoiiwd when there has been remedy bj
6i 30 L. B. A. S02.
. Actlona defendBnt'B setoff which was in
□onnt wsB allowed again vt each of judg-
lered hj agreement, tiiey will not be en-
ntlOD against her homeataad.
II.
to for history ot eaSB in Snow T. Nssb,
LLION.
at room was "nied and oeenpied foi gam-
icognized hy law.
IS.
V. STATE.
, stolen property may be alleged to be in
ty in it at time of theft,
ate, 45 Tex. 86, testimony that itolen prop-
joint owner ■■ Bufflcient proof of owner-
BX. Ap. 296, posseaaion of servant ie poteea-
State, 3 Tex. Ap. 167, one legally in poa-
thereof; Gaine« t. State, 4 Tex. Ap. 331,
E53, and Traftou v. State, 5 Tex. Ap. 484,
' be alleged either in one having general
>erty in thing stolen; Samora v. State, 4
[lay allege awnenhip of atolen property to
owners who hag posaeesion and control of
Ap. 73, indictment may allege ownership
in one w^o holds as estrsy, which waa
r V. STATE.
g Propwty by frandnleut representations
7, not it* value, waa acquired by fraudu-
T. State, 2 Tex. Ap. 322, reafflrmiDg rule;
. Ap. 47S, indictment mnst sat out falsa
known to be false, were made knowingly,
ing property. See note, 25 Am. St. £ep.
42 Tex. 81-98
NOTES ON TEXAS BEPORTS.
476
42 Tex. 81-83, KING y. GOODSON.
Wlien Object of Amendment is merely to cure defective fe'tatoraent,
or to give form to informality, or like, service of amendment is un-
necessary.
Approved in Spencer v. McCarty, 46 Tex. 215, reaffirming rule;
Tribby v. Wokee, 74 Tex. 144, 11 S. W. 1090, correction of amount
of note by amendment not a new cause of action; McConuell v.
Foscue (Tex. Civ.), 24 S. W. 965, defendants in foreclosure of ven-
dor's lien sire not entitled to notice of amendment to petition giving
better description of the land.
42 Tex. 85-87, MOOBING y. STATE.
In Misdemeanors Defendant must except to charge of court at
the time, and must ask additional instructions desired, otherwise such
action will not be revised.
Approved in Browning v. State, 1 Tex. Ap. 99, Foster v. State, 1
Tex. Ap. 364, Porter v. State, 1 Tex. Ap. 478, Haynes v. State, 2
Tex, Ap. 86, Goode v. State, 2 Tex. Ap. 522, Campbell v. State, 3
Tex. Ap. 34, Work v. State, 3 Tex. Ap. 234, Bichards v. State, 3 Tex.
Ap. 424, and Loyd v. State, 19 Tex. Ap. 323, Gruesendorf v. State
(Tex. Cr.), 56 S. W. 625, all reaffirming rule; Forrest v. State, 3 Tex.
Ap. 233, in misdemeanor cases, exceptions to charge are futile, un-
less substitute ins;tructions are requested.
Assault Witli Deadly Weapon, without intent to murder or maim,
is aggravated assault.
Beaffirmed in Hunt v. State, 6 Tex. Ap. 664.
42 Tex. 88-91, STATE y. COBBIT.
Infonnation may be Presented in district court during vacation.
Beaffirmed in Basberry v. State, 1 Tex. Ap. 666; State v. Kyle,
166 Mo. 307, 65 S. W. 769.
42 Tex. 91-94, 19 Am. Bep. 44, YABBOBOUGH y. WOOD.
Vendor's Lien will be Enforced to secure payment of bid by pur
chaser at sheriff'ii sale, above the satisfaction of judgment, when
credit is given by consent of defendant in execution.
Approved in Marshall v. Marshall (Tex. Civ.), 42 S. W. 354, vendor
retains equitable lien for unpaid purchase money without any dis-
tinct agreement to that effect, even though deed recites full pay-
ment; Wood V. Wood, 124 Ind. 548, 24 N. E. 752, 9 L. B. A. 173, one
who loans money for purchase of real estate has no equitable lien
upon property purchased.
Banlcruptcy of Payee of Note taken by payee for debt due his
principal does not deprive maker of offsets honestly acquired in belief
that payee was owner of note.
See note, 55 L. B. A. 45, 49.
42 Tex. 94-98, SHOBT y. ABEENATHY.
Upon Failure to Deliver at maturity specific articles in which note
is payable, obligation becomes absolute for sum specified in money.
Approved in Corbett v. Sayers, 29 Tex. Civ. 72, 69 S. W. 109,
applying rule to contract for sale of cattle at agreed price; Bummel
V. Houston, 68 Tex. 12, 2 S. W. 741, obligation which may be paid
in "cash notes" cannot be so paid after maturity; First Nat. Bank
V. Lynch, 6 Tex. Civ. 592, 25 S. W. 1043, on failure to deliver horses
on TEXAS BEPOKTS. 42 Tax. M-111
» tiaDsaction, obligation becomes monejed
es V. Fuller, 4 N. M. (John.) 360, S N. M.
.gbt hundred dollarB" sufScIently describes
.. See note, 55 Am. Dec. 776.
d in Confederate dollarB can recover their
e of the contract in lawful monej of the
ichultz, 45 Tex. 187, payments to gnardian
raid; Meyers v. Dittmar, 47 Tex. 375, note
ley can be aued upon; McUanua v. Scott,
'ederate money sufficient consideration to
louey; Lewis v. Alexander, 51 Tex. 290,
VE ▼. BIROE.
MraUon of Contract by principal can only
binding on principal, and which impairs
Phipps, 87 Tex. 581, 47 Am. St. Eep. 131,
'or payment of debt releases surety; Bab-
. Tex. Ap. Civ, 489, and Morris v. Booth,
I. W. 640, extension for payment of note
Barrack, 2 Toi. Ap. Civ. 589, extension
ODsideiation of usury does not discharge
1, 3 Tax. Civ. 232, 23 S. W. 131, wbers
I extension they are released; Benson v.
W. 360, instance where extension wa* not
il contract; Behrne v. Rogers (Tex. Civ.),
in collecting a debt will not discbarge tbe
Oec. 108.
SAMOS.
Sopieme Oonrt extends to <nal judgments
manner of pleas, plaints, motiaos, causes,
lb rights of persons and property are detar-
itcbetl, SO Tex. 166, judgment for partition
is appealable.
vet's Account may be appealed from, such
r and those interested in the
Stone Live Stock Co., 13 Tex. Civ. 418, 35
0 require an accounting on the part of a
Stone Live Stock Co., 13 Tex. Civ. 417, Sd
: appear by agreement of parties or certifi-
signed by counsel of one party, and marked
judge, wilt not be treated as a "statement
ireford, 1 Tex. Ap. Civ. 502, and Willis v.
Pac. 323, reaffirming rule; Lozano v. State
ind Bath v. Houston etc. Ky. Co., 34 Tex.
1 holding where stateroent of facta pioperly
42 Tex. 111-127 NOTES ON TEXAS BEPOETS.
478
entitled purported to give testimony and was indorsed as approved
by trial judge but not signed by attorneys, presumed that attorneys
had disagreed before approval; Hess v. State, 30 Tex. Ap. 479, 17
S. W. 1099, statement of facts marked "approved" by judge is defec-
tive; Guerrero v. State, 41 Tex. Cr. 163, 53 S. W. 119, signature of the
judge must appear to the statement of facts in such way as to indi-
cate his approval; Ft. Worth etc. Ry. v. Garvin (Tex. Cr.), 29 S. W.
795, arguendo, but allowing statement of facts in case at bar to
stand although with reluctance.
Distinguished in Dwyer v. Testard, 1 Tex. Ap. Civ. 706, statement
of facts, alleged to be such, signed by counsel of one party, and in-
dorsed "approved" by judge is effective.
Where Record Does not Show that Portion of charge complained
of on appeal was excepted to at time of trial, it will not be revtewed.
Approved in Hurst v. Benson, 27 Tex. Civ. 230, 65 S. W. 78, ob-
jections to charge must be excepted to at the time.
Several Distinct Judgments affecting different parties, though made
in same action, cannot be joined in one appeal.
Approved in Griswold v. Bender, 27 Nev. 377, 75 Pac. 162, dismiss-
ing appeal from order rejecting claim against estate, from order dis-
missing suit against estate, and suit against administrator, where only
one undertaking filed.
42 Tex. 111-114, liABX Y. BBOWN.
Mistake in Entering Judgment may be corrected in district court
nunc pro tunc, and at any time before final judgment in supreme
court.
Approved in Wichita Valley Ry. v. Peery, 88 Tex. 382, 31 S. W.
621, district court has jurisdiction of motion to enter notice of appeal
nunc pro tunc; Vestal v. State, 3 Tex. Ap. 654, to amend or supply
record in criminal case at subsequent term, proceeding for that
purpose necessary; Kerr v. Morrison (Tex. Civ.), 25 S. W. 1011, where
remittitur was filed before transcript was taken from clerk's office,
the error in the ruling of the court below became immaterial; Low-
don V. Fisk (Tex. Civ.), 27 S. W. 182, where clerical mistake in
entering judgment for too large an amount was corrected by re-
mittitur before transcript left clerk's office, costs will not be taxed
against the judgment creditors.
When Judgment on Appeal is affirmed against the principal, it is
also affirmed against the sureties on the writ of error bond with-
out further notice.
Approved in St. Louis etc. Foundry v. Taylor, 27 Tex. Civ. 351,
65 S. W. 679, sureties on claim bond are not entitled to citations and
notice of cross-action by one seeking judgment on the bond.
42 Tex. 114-115, CROSS Y. OBOSBY.
Transcript Containing a Statement of the case and facts proved,
and which is signed by attorneys as an agreed case, but lacks certifi-
cate of trial judge, is fatally defective.
Reaffirmed in Taylor v. Campbell, 59 Tex. 317.
42 Tex. 11&-127, HUGHES Y. ROPER.
Objection for Want of Proper Parties will not be noticed when ^rst
made in supreme court.
Approved in Caruth v. Grigfiby, 57 Tex. 268, reaffirming rule; Sears
V. Green, 1 Posey U. C. 734, objection ks to proper parties will not
E8 ON TEXAS BEFOBTa 42 T«c 12S-148
Dade oD appeal, naleHs defendant waa injuTed
Dding Bait b7 creditora, to aome of his ebildren,
1, and from them to otiiera to whom father ia
lent.
. Barr, 34 W. Va. 104, U 8. B. 753, coDTe^Biice
r Email part of conaideratiOD aet out in deed,
(K V. THOMPSON.
upon one of several partnera, egainat whom
taken, is inaufficient; all defendanta in error
SOE Y. VHITE.
lar Adjudication ia doubtful, it should be aub-
tain fact from record of former trial, aa inter-
ded by aueh eztraoeoua evidence aa might be
V. Mclver, 49 Tex. 572, in pleading res adjudi-
tful wbat was true isaue, it ia competent to
inde to ascertain it; Rackle/ v. Fowlkca, 89
nbere two cauaes of action pleaded, and re*
I, judgment ia prima facie evidence that plain-
recover on other; Frankel v. Heidenbeimer, 1
ience ma; be introduced to abow isaue U res
Powlkea (Tex. Civ.), 38 S. W. 75, doctriue of
apply wbere no teatimonj wae heard, although
^ as to renta in treapaaa to try title.
C V. OABTWBIOHT.
Object Of a Suit is to annul a judgment, the
suit or their privies are necessary partiea.
I Land etc. Co. v. Ward, 1 Tei. Civ. 312, 21
irard, after attaining majority, to annul judg-
guardiau not necessary party.
SAIL T. BUBBI8.
Dotaimlned Claai to whicb each bead right
d their action in ao doing cannot bo attacked
I V, Qiboney, 81 Tex. 428, 17 S. W. 14, reaf-
V. Scarborougb, 59 Tex. 49S, deciaion of land
fho were heira of deceased party cannot be
Boone v. Hulaey, 71 Tex. 188, 9 S. W. 53",
lermine right of applicant to certificate and
I entitled to, and do not determine righta of
ind.
3«rtiacat« are binding upon alt persons claim-
■, Bargas, 88 Tex. 864, 32 8. W, 875, recital in
; had presented regular transfer from original
Malone v. Dick, 94 Tei. 422, 61 8. W. 113,
nt is prima facie evidence.
42 Tex. 149-158 K0TE8 (
Act Making AsseEsor'B ]
requisiteB of exercise ot po\
plitd with will not be givei
See note, 4 Am. St. Bep.
12 Tex. 149-152, BOBEBTS
Uoney Paid to Effect B*
recovered, nor will monejr
an account; otliarwise it thi
Approved in Teagua v. ^
where part of con side ratio
deed will not be set aside.
42 Tex. 1G2-1S3. KINO ▼. <
Betom of SlierlS whicb
cop J of citation and p«titi<
sufficient.
Approved in Hoi lid ay v.
Tei. Ap. 33, Jackaon v. Ten
ford T. Davenport, 4 Tei. J
rule; Tyler v. Blanton, 34 1
did not state residence of
county and there served i
and B. the within d^fendanl
is sufficient; Bush v. Dave
should show copy of writ
Chamblee v. Hufsmith <Te
witliin named defendants in
defective; Swilley v. Relian
return reciting delivery to '
in person, a true copy of thi
Distinguished in Polmac
where return bIiowb service
that Eervlce made on each <
vice and three named defenc
Wbeie Judgrosnt is Take
set up by amendment, npoi
original lien was insisted u|
and defendant bad no notic<
Approved in Stewart v. I
meat on amended demand, «
ant, ig nullity; Boiler v. Bi
party plaintiff is made, noti
has not made appearance; 1
holding notice necessary in
made himself a party to the
42 Tex. 154-168, SNOW T. '
One BecaiTlng the Due P
proceeding is estopped fioi
Approved in Preseott v. F
conditional acceptaaca of co
I ON TEXAS BEPOBTa 42 Tei. 159-169
(Tex. Civ.), SI S. W. 990, legatee ia bound
on signed by his ancestor,
to Aibitratlon of Uattor in which ibe and
itereit ia not binding on minor*.
4.
I ▼. BATTE.
[■snad in aid of a garni sbment sued out in
ourt against a defendant in state court npon
Irown, 76 Tex. 46!
bj garDiahment i
B. A. 363.
T. Blum, 82 Tex. 443, 17 8. W. 772, gar-
gooda beld under void aEaignmsnt created
hts of subaequent attaching creditara.
QoDit to proceed to judgment and execu-
b; subsequent garniabment proceedings in
BchafTner, 3 Tex. Civ. 124, 22 8. W. 823,
kin, 2 Tex. Civ. 65, 21 8. W. 618, garnishee
inrt against double liability ia entitled to it.
Hesitate Inng to give aasiatance beyond
imishment attacbment.
etc. Bank t. Floeck, 17 Tex. Civ. 422, 43
>t be charged with property of debtor which
iNSON ▼. TEXAS ETO. BT. 00.
road Company," having been consolidated
be Texas and Pacific Railway Compaay," a
ir directed to latter, in a judgment in favor
irected.
. Ry. V. Murphy, 49 Tex. 360, Texas and
' liable for damages inflicted by Boutbern
Proctor V. San Antonio etc. Ey., 26 Tex. Civ.
y that anceeeds to rights and property, ami
decesBor, is proper party in proceedings in
ntered in action against predecessor com-
f etc. By., 56 Tex. 599, Indianola etc.
S17, Indianola v. Indianola B. B., 2 Posey
By. v. Hntehison, 3 Tex. Ap. Civ. 122, con-
mea liabilities of its eonatituenta; Acres v.
purchasers of sold ont railroad sncceed to
1 privileges. See notes, 119 Am. St. Rep.
Nat. Bank v. City of Dallas, 28 Tex. Civ.
B a bank sued and lost, writ of error by
) showing in record of B bank's interest, ex-
omplaint that A and B bsnk* were same,
vay Company is not a nonresident, and aer-
f record of writ of error is inaufiicient.
'roboese (Tex. Civ.), 63 S. W. 655.
a of Citation in error waa obviated by vol-
'endant.
42. Tex. 170-188 NOTES ON TEXAS BEPOBTS.
482
Approved in McDonald v. Blount, 2 Tex. Ap. Civ. 299, plea to be
sued in county of residence comes too late where cause continued
by consent.
Citation by Publication must be published for four weeks previous
to return day, and the first publication must be four weeks (twenty-
eight days) before the first day of the court to which it is returnable.
Approved in Phillips v. State, 23 Tex. Ap. 305, 4 S. W. 894, order
declaring result of election shall be published twenty-eight days from
day of first publication.
When Judgment is Asked in Ex Parte Proceedings, based on service
by publication, there must be strict observance of all essential re-
quirements of the law.
Approved in Netzorg v. Geren, 26 Tex. Civ. 121, 62 8. W. 790, de-
fault judgment foreclosing tax lien erroneous where citation by
publication stated action was to recover taxes; Traylor v. Lide (Tex.
Sup.), 7 S. W. 62, sustaining judgment in pejrsonam by publication
under act of 1848.
42 Tex. 170-173, GAMMAGE y. MOOBE.
Mistake Made in Drawing Contract may be corrected in equity and
decree rendered on reformed contract.
Beaffirmed in Kelley v. Ward, 94 Tex. 297, 60 S. W. 313.
42 Tex. 173-180, EASON y. LOCHEBEB.
Holder of Legal Title to a promissory note may maintain suit thereon
in his own name.
Approved in Luter v. Boberts (Tex. Civ.), 39 S. W. 1002, assignee
of promissory note as collateral security may maintain action on it
in his own name; Bond v. National Exch. Bank (Tex. Civ.), 53 S. W.
75, legal holder of promissory note may sue in his own name.
42 Tex. 180-181, NICH0IA8 y. HESTEB.
Act of 1866, Providing That Judgments shall be liens on judgment
debtor's real estate applies where the judgment was rendered prior
to its passage if it has not become dormant.
Approved in Baines v. Jemison (Tex. Civ.), 27 S. W. 183, constru-
ing venue law applicable to cases brought before its passage.
42 Tex. 182-183, CLAYTON y. MOOBING.
Act of February 2, 1858, which provides for dispensing with the
use of scrawls and seals, was intended to embrace every instru-
ment in the execution of which scrawls or seals had been before that
time used.
Approved in Butherford v. Montgomery, 14 Tex. Civ. 323, 37 S. W.
627, undisclosed principal responsible upon deed not under seal.
42 Tex. 185-188, ABMSTBOKG y. PABCHMAN.
Contracts for Wagers on Horseraces are Legal, and may be main-
tained and enforced as any other valid contracts.
See notes, 58 Am. Dec. 95; 18 L. B. A. 861.
Court will not Take Notice of Bules of turf without allegation and
proof.
Denied in Walker v. Armstrong, 54 Tex. 613, where contract silent^
it will be presumed parties had in view rules of turf.
BS ON TEXAS BEPOBTS. f2 Tex. 189-203
SL V. OI^TTON.
[tulMiid In Confederate Aimy, wife was not,
'm, "living separate and apart from her hus-
Bontractiog a debt for fbeir plantation, acting
> be individually liable for the debt.
:. 687; 64 Am, St, Eep. 867.
roperty of Wife Liable tor Debt, it must have
ras contracted by the wife, or her anthorized
id proper necessaries for heraelf and children,
arj she should to make her separate estate
r. Embree, 1 Tex. Ap. Civ. 76.
V. OLENIOE.
a Fade ^rlAeact that property ii not bome-
; homestead exemption is upon person malting
V. Hj^dman, 57 Tex. 429.
b« No Blending of homestead rights so that
lartly in town and partly in the country.
Hyndman, 57 Tex. 430, Swearingen v. Basaett,
T. Sanger, 13 Tei. CiT. 412, 35 S. W. 405, all
V. Hyndman, 57 Tex. 432, three acres outside
city homeBtead; First Nat, Bank t. Walsh
113, where owner resides in limits of village,
rated from his other tract of land by a street
e lot on which residence Btacds constitutes
v. Kyon (Tei. Civ.), 81 S. W. 139, farm
0 lived in town not part of homestead; Bob-
. Civ. 483, 484, 63 8. W. 336, charge tbat fifty
>y urban owner for support of his family is
roneouB. See note, 70 Am. Dec. 353.
' of Fioperty and naes and purpoees to which
it guide to determine whether it is country or
lanchheimer £ Sons v. Saunders, 97 Tex. 140,
I, where town grew up about residence and
1 homestead, character changed to urban bone-
hnndred acres of former rural homeatead out-
it; Haigadene v. Whitfield, 71 Tei. 4B0, B S.
place of business, ae also dedication to other
Willis, 84 Tex. 400, 19 B. W. 684, to constitute
IguooB, inhabited houses of a town. It is not
orporated; Wilder t. McConnell, 91 Tex. 603,
rithin limits of unincorporated town or village
1; BobertB v. Cawthon, 26 Tex. Civ. 481, 63 S.
9 urban homestead when within limits of town
town or village is nniscorporated. See note,
tLe Valua of the town loti of which the home-
.me of their dedication.
r. McConnell, 91 Tex. 604, 45 S. W. 147, con-
tntee that urban or rural character of home-
J Tbi, 203-207 NOTES ON TEXAS HEP0ST3.
Zieftdlng Idea In Homestead Exemptions is to furnish
letter to the familj, but limited and confined to ttie re
i>t to property of a epecifle value, irrespective of ita use
Approved in Vance v. Doebbler, 2 Posey U. C. *95, reall
tikael v. Equitable Securitiee Co,, 32 Tei, Civ. 185, 7
etermining that certain place was village with constit
iaion as to rural a'nd urban bomesteads; Eyiar t. Eylar,
eo on property u»ed as a place of buBinass not devested
resent constitution permitting place of business to bee
omestead; Inge v. Cain, 65 Tex. 7S, place of business
imily not part of bomestead ander conititntioiu of 1S4
i69. See note, 70 Am. Dee. 348.
Denied in Miller t. Menke, 56 Tei. 550, homestead ex
races not alone residence Jots, bnt lots where head of
:see his bnsineEs; Wright v. Straut, fl4 Tex. 66, place
1 bead of family is part of homestead under constitut:
J, 1876, otherwise prior to 1876] Inge v, Cain, 65 Tex.
on of 187G exempts place of business of head of famil;
amestead; Western Mortgage etc. Co. v. Ganzer, 63 Fi
;itutioa of 1S76 considered a reversal of Iken v. Oleniek,
ilargement of homestead exemption.
Idea of Home h Bealdenc* In Conntij imports that i
ected with it the means or opportunity of fallowing
Approved in Baldeseh waller v. Ship, El Tex. Civ. 8:
15, rural homestead may embrace tract several miles i
»idence. See note, 70 Am. Dec. 352.
nrban Homestead m&y Consist of One or Moi* Lots
ich lot or lots form part of homestead, they are not inc
Approved in Bailey v. Banknigbt (Tex. Civ.), 25 S. W.
'here building on adjoining lot and old house, which
inted, were held to constitute the homestead; Ashton
Ian. 679. 27 Am. Bep. 201, house and lot rented to teni
t homestead, though lot adjoins boms of owner.
Denied in Anderson v. Sessions, 93 Tex. 282, 77 Ain. i
76, 51 S. W. 875. lot detached from residence and u
ruits and vegetables for family consumption is part
ad of homestead; dieeenting opinion in Anderson v.
ex. S85, 286, 77 Am. St. Eep. 879, 51. S. W. 877, lot d«
fsidpnce and used to raise fruits and vegetables for
imption is part of residence and of homestead; Waggi
ell, 89 Tex. 430, 35 B. W. 1, lota detached from reside
ivated in grain and vegetables are places of busiaess
omestead. See note, 87 Am. Dec. 467.
Miscellaneous. — Cited in Ayers t. Shaekey, 2 Posey, i
knt homestead is lost by abandonment though new ho
2 Tax. 203-207, WBiaHI V. FAWCETT.
While Dlsbict Court has, In Its Oeneral JorlsdlctlOD, ]
ight to office, yet the act of May 8, 1873, having pres
( deciding cases of contested elections designed to be
ave no authority to adjudicate such cases other than
aid act.
33 ON TEXAS BBP0BT3. 42 Tex. 207-214
. Templeton, 82 Tex. 357, and State v. Owens,
ming rule; Norman v. Thompson, 96 Tex. 233,
of local option election, failure t« post one
itatute for twelve days prior to election can-
bsan V. Wingate, 38 Tei. Civ. 70, 80 S. W.
ct lie to prevent eommisaionei'B couit from
publiaMng Tesult of local option election on
n or available to set it aaide; Rogera v. Johi^,
allowed from judgment of district court in
laon V. Lane, 52 Tex. 346, conteits of election
ct courts for all diBtrict and countf offices;
.. 815, act not providing for jury trial in con-
titutional; Robertson v. State, 109 Ind. 131,
nto will not lie to settle title to office, wbere
I such controversies is vested in general aa-
es, 113 Ind. 14B, 13 N. E. 701, trial by jury
ested election case; Thomas v. Franklin, 42
6, proceediog for election contest not main-
unless authority therefor is found in statute;
Nbv. 386, contest for members of legislature
lurguance of statutory provisions; disseotiDg
les, 4S Tex. 444, district court has DO jurJsdic-
it election contest on ex parte proceeding; Ex
, 75 8- W. 302, arguendo.
arte Towles, 48 Tex. 436, district court has do
ountj seat election contest on ex parte prO'
I, 28 Tex. Civ. 37, 63 8. W, 170, present con-
;Ourt jurisdiction to try election contests.
opinion in Be Ounn, 50 Kan. 248, 32 Pae.
review action of house of representatives.
lection is not a question of private right,
on V. Lane, 52 Tex. 347, jurisdiction of elec-
conferred upon supreme court, not being a
Turbeville, 17 Tex. Civ. 121, 43 S. W. 810,
ection is nob a civil case, reviefrable on writ
Am. Dec. 807.
;t Court is dependent upon compliance with
by statute in cases of contested elections.
V. Dion, 18 Moot. 194, 44 Pac. 958, 33 L. R,
iurisdictional fact in election contest is fatal;
X. Civ. 645, 78 S. W. 17, statutory contest of
be had onlj on written notice of intention to
le 5, section 8, of constitution conferring gen-
rict court in contested elections, see Boach v.
8. W, 702,
S V. I.ATHBOP.
ta, whether he has autbority or not, and fails
liable on their bond for amount bo collected.
. OwingB, 98 Fed. 506, if receiver fails to pay
rsonally, incurred as receiver, surety is liable
Am. St. Bep. 36,
42 Tei. 214-224 NOTES ON TEXAS BBP0ET8.
42 Tex. 214-220, McOIANE t. BOOEBS.
WIi«re ft Sheriff la Interested, proeees must tie lerved hy
Approved in Eobinaon t. Schmidt, 4S Tex. 17, where
party, town or city marshal not authorized to serve procesB.
Distinguished in Trammel v. Sbeltou, IS Tex. Civ. 369,
320, deputy appointed by sheriff ie qaalified to perform
incumbent on deputy sheriff; oath limiting hia powers is to
If There waa a Valid Transfet of Judgment and notU
given to sheriff before its collection, without neceasary ste
be^n taken to give preference to any other party, money,
lected on Boch judgment, woald belong to usignee.
Approved in Hudson v. Morrlss, 6G Tex. 603, assignee
ment has right to control its collection and to receive the d
lected; Bludworth v. Poole, 21 Tex. Civ. 555, 53 8. W. 719,
judgment may be revived in name of original plaintiff. Sei
L. a. A. (a. a.) 217.
Vliere Uoney Oomos into SherUTa Huids, while he hold
execution against the party to whom it belongs, he may a]
satisfaction of aaeh execution.
E«affirmed in Mann v. Eeleey, 71 Tex. 014, 10 Am. SL Be
8. W. 45.
Where an Improper Chuge could not possibly work an
party complaining of it, it ia not ground for reversal on a|
Keaffirmed in Galveston etc. S,. R. v. Delahuuty, S3 Tei
Montel V. Speed, 53 Tex. 343, Burnett v. Wsddell, 64 Tex.
Dawson v. Sparks, 1 Posey U. C. 757.
If Sheriff After Notice of AsaignmeiLt of judgment ap
money to o there who have executions in his hands againat
he does so at peril of having to account to asHignee,
See note, 21 L. B. A. (n. s.) 217.
42 Tex. 221-224, OOBUAN ▼, STATE.
Stepfathw la in I«co Parentis of Hla Wife's OUldren 1
husband BO long as they are supported and maintained by
he has the same right of reasonable chastisement to enfon
tbority.
Approved In Snowden v. State, 12 Tex. Ap. 107, 41 Am.
brother is in loco parentis when he supports, maintains, anc
sister; Donnelley v. Territory, 5 Arii. 284, 52 Pao. 369, prie
ing child capable of appreciating correction may show pai
sent in mitigation of offense. See note, 53 Am. Dec. 347-
Husband's Aathorlty Over Wife does not extend to eorg
iahment, and any violence to her, save in self-defense or t
her unwarrantable interference in exercise of his parental
would be illegal.
Approved in Loring v. Loiing, 17 Tex. Civ. 99, 42 3. W
cruelty for husband to prevent, without unnecessary force, i
fering with his chastisement of children; Cunningham v. Cu.
22 Tex. Civ. 8, 53 S. W. 76, not cruelty for liuabund to si
with gun with nhich she threatened to shoot him, in attem
vent his chastisement of children. See notes, S6 Am. Dec. '
B. A. (n. B.) 217.
Evidence of Assault upon "Mar; Gorman" will not bu|
viction upon indictuient ■:or assault upon "Martha Qorman,
NOTES ON TEXAS BEPOBTS. 42 Tex. 221-232
irringon v. State, 1 Tex. A p. 174, varUnce between
of as to destination it material; Burgamv v. State,
Abie" Bnd "Avie" are neither ths sane name nor
nilskf V. State, 9 Tex. Ap. 379, charge that swin-
I dollsTB and proof that aix dollars were obtained
Owen V. State, 7 Tex. Ap. 336, no variance wbere
raa described in indictment aa "Sofia," and was
" and "Sofira,"
A and act u|>on transcripts, as being in all things
ed bj* the clerk.
ch V. State, 1 Tex. Ap. 211, where record recites
irors, appellate eoiut will not preBuma accused was
ffOBOAN V. BIATE.
ter Oatb than that piescrtbed in BTiminal cases ia
mith V. State, 1 Tex. Ap. 415, realfirming rale;
Tex. Ap. 518, wbere other than prescribed oath ad-
r, conviction must be set aside; Mites t. State, 1
re other than prescribed oath administerad to jury
tituted no legal verdicd; Clampitt v. State, 3 Tex.
13 of Code of Criminal Procedure prescilbes oatb to
0 jury in capital as well aa other offenses; State
r. 429, 4 Fac. 1082, use of words "this cauEe" in-
e between the state of Nevada and Charles Angelo,
oea not vitiate oath of jaty.
DAVIS T. STATE.
w, Indictment for rape mast charge tbat aceased
» use of the noun "rape," instead of the virb
iwitt V. State, 15 Tex. Ap. 81, reafRrming rule; ar-
il V. State, 28 Tei. Ap. 577, 14 8. W. 124, word
essaiy in indictment for that crime.
trledge, with or without consent, of female under
, ollegatioDB of force and want of consent are im-
' Bnrpluaaye, and need not be proved,
ylor v. Stats, SO Tex. Or. 363, 97 S. W. 95, 123 Am.
olding indictment charging rape on female under
|e; State v. Scroggs, 123 Iowa, 651, 96 N. W. 724,
illegations as to exercise of force; State v. Jones,
Pac. 1097, upbolding information charging rape of
) ag« of sixteen years, to wit, of the age of four-
iward"; State v. Home, 20 Or, 486, 26 Pac. 665, if
id after striking out surplusage, conviction must
T. State, 6 Lea, 105, indictment charging assault
nmit rape on female under ten years, forcibly and
will snstain conviction, "forcibly and against her
sage; O'Eourke v. State, 8 Tei. Ap. 71, indictment
L objected to that victim not sufficiently specified;
B, 13 Tex. Ap. 3.">3. indictment held good, though
. according to statute, and alleged to b« otherwise
42 Tex. 232-237 NOTES ON TEXAS KEP0ST8.
B7 tbe Obaige "Did BavlSh," force and violence bj the ir
want o( consent by the woman, are implied.
Approved in WilltamB v. State, 1 Tex. Ap. 93, 28 Am. E
reafarming rule; Gibson v. State, 17 Ter. Ap, 577, wbere word '
ia naed, it is unnecessary to allege force by defendant and
ingness of woman; Jones v. State, 18 Tei, Ap. 4S8, whei
proved, but no intent to have carnal knowledge, offense ia i
gravated assault and battery; Fields v. State, 39 Tex. Cr. 49
W. 815, omission of word "knowledge" after "carnal" cured
of word "ravish"; diseenting opinion in Beard v. State, 79 A
97 S. W. 672, majority upholding indictment for rape as
asaault made againat prosecutrix's will.
It Is not Necessazy In Indlctnwnt for rape to charge that
waa over fourteen years of age at time of otFenae; if under t
it b matter of defense.
Approved in Mitchell v. People, 24 Colo. 534, 52 Pac. (172, no
■ary to allege or prove age of defendant in rape.
In Investigation of Caaes of Bapo, every aource of knowl
the fact should be explored.
Reaffirmed in Gaaley v. Stato, 17 Tex. Ap. 277.
WUle In Oaees Of Bape the slighteat penetration ia euCHcit
there must be satisfactory proof of some to consummate the
Approved in Green v. State (Tex. Civ.), 79 S. W. 304, hold
viction for aodomy not sustained where evidence . did nc
penetration; Word v. State, 12. Tex. Ap. 183, penetration ]
established by proof, and jury go inatructed. Bee note, SO A
372.
42 Tex. 232-235, BLOW v. DE LA OABZA.
Statement of Facts Made Up by Plaintiff and Defendant,
signed by intervener's counsel, and made without reference 1
vener who prosecutes a writ of error, cannot be regarded
sidering rights of intervener, whatever errors may have be
mitted as between the plaintiCF and defendant.
Approved in Willis v. Smith, 17 Tex. Civ. 549, 43 Pac. 32.
ment approved by trial judge, as one agreed to by parties,
be considered on appeal of party who did not agree to it; ]
First Nat. Bank, 25 Tex. Civ. 208, 60 S. \V. lOOS, statement
will be considered only with reference to rights of parties i
to it.
Distinguished in Hudson v. Morriss, 55 Tex. 608, where in
adopts allegations of plaintiff, and prays for same reraedie
ment on writ of error affects alike both plaintiff and intervei
42 T«. 235-237, THOMAS ▼. STATE.
Amount of Injury Done Owner by the willful killing of an
being an element in the punishment, must be distinctly alle
legation of value of animals killed is not sufficient.
Approved in Uecker v. State, 4 Tex. Ap. 238, reaffirmii
Nicholson V. State, 3 Ter. Ap. 32, indictment must allege an
injury done owner by willful kOling of gelding, or it ia bad 01
for arrest of judgment; Newton v. State, 3 Tax. Ap. 246, jur;
have been informed in what amount punishment might be
for willful killing of tow; Strpct v. State, 7 Tex. Ap. 7, onl
sary to prove killing of so ma[:y animals as warranted jury :
OTEa ON TEXAS REPORTS. 42 Tex. 237-241
led iu tbeir verdict as injur; done to owner. At-
. State, 9 Tex. Ap. SO, indictmeDt for parsuing
vithout license shall allege, and evidence prova.
See DOt«, 128 Am. St. Sep. 173.
DN T. STATE.
I Omum, evidence ia exelutted wbich might have
jt prejudice to either side, but which would have
: of no appreciable weight in favor of defendant,
ed no ground for new trial.
le V. State, 4 Tex. Ap. 211, not error to exclude
er of person seen in conversation with alleged
tiomicide; Sbultz v. State, 5 Tex. Ap. 394, eiclu.
icb would not trairant new trial is not ground
iction; Gose v. State, 6 Tex. Ap. 131, failure to
>f arrest of defendant after his flight not ground
II V. State, 14 Tex. Ap. 16, excluding evidence
trj in carr7ing arms is not error.
LTE T. PBEET.
'Joi7i which fails to charge by direct and pos-
the false statement was deliberately and falsely
V. Williams, 111 La. 1036, 30 So. 112, indictment
arge that testimony was false to knowledge of
h having perjured himself as witness; Smith v.
622, words "deliberately and willfully" must be
barging perjury; West v. State, 8 Tex. Ap. 122,
c«itBtilueDts of perjury is that the false state-
ately and willfully made; Gabrielaky v. State, 13
assignment of perjury necessary to valid indict-
mer, 122 Cal. ESO, 55 Pac. 685, indictment not
>art that he "willfully and contrary to aneh oath
irial matter which he knew to be false," is fatally
I, SS Am. Dec. 495; 124 Am. St. Bep. 678.
cJlUTt founded on an oath differing both in form
that which is authorized by statute, ia bad.
Dec. 496; 124 Am. St. Rep. 663.
«mar v. State, 49 Tex. Cr. 564, 95 8. W. 310, in-
charging defendant as witness at trial took his
ti waa duly administered, ia eufficient without
3N v. BENNETT. .
UaUar in controversy as to all parties is disposed
Ina) for purpose of appeal.
art V. Lenoir, 31 Tex. Civ. 470, 72 S. W. 619,
between plaintiff and defendant case, as against
ed, was continued, and prosecuted to judgment m
I, there waa no final judgment appealable by
. V. Fort Worth etc. Ry., 68 Tex. 104, 2 S. W.
Iving injunction to restrain railroad from con-
ting its road, is final; Mignon v. Brinson, 74
14, judgment in partition suit no* final when in.
ling life interest ia not paased npon; Thompson
42 T«. 24S-249 NOTES ON TEXAS EEPOBTa
▼. State, 17 Tex. Ap. 320, where one of •nreties waa not fi
scire facias aod did not appear, judgment against othei
dismissing or discoatinuing as to bim was error, and not
T. State, 34 Tei. Cr 95, 29 S. W. 273, judgment on bail bo,
sureties, without disposing of case agaisst principal, is uo
purpose of appeal; Lay v. Bellinger, 1 Tei. Ap. Civ. 18, whi
for new trial granted tw one or more defendants and overr
otbers, judgment not final for purpose of appeal; Frank
(Tei. Civ.), 20 S. W. 870, where judgment in suit by one t
copartners does not adjudicate all the isBues raised, it is
Davis V. Martin (Tei. Civ.), 53 S. W. 599, judgment whicl
dispose of all the paiidea to the suit is not final; Mills
Tex. Civ. 421, 23 3. W. 190, and Mills v. Paul, 4 Tei. Civ.
W. 396, where nine causes cooBolidated and judgment re
four, judgment not final for purpose of appeal; State Nat
Waiahachia Nat. Bank, 14 Tei. Civ. 144, 35 S. W. 1083,
which fails to dispose of rights of defendant is not final
not support appeal; Davis v. Martin, 15 Tex. Civ. 62, 53 !
where judgment does not diapase of two of parties to suit
final for purpose of appeal; Watkina v. Magon, 11 Or. 73, 4
judgment on demurrer as to one of two defendants is doi
purpose of appeal. See note, 60 Am. Dee. 436.
42 Tex. 242-244, 8TEWABT t. STATE.
Judgment Sismiaslng Petition of intervention is not su
judgment as will authorize an appeal by intervener, bi
judgment on issues between plaintiff aad defendant.
Approved in Lion v. Arambould, 55 Tei. 620, judgmei
abeyance until an undetermined issue is tried is not final fi
of appeal. See note, 60 Am. Dec. 431.
42 Tex. 244-247, TATIOR T. HUBOINa
Wbeie In Salt on Note to Foreclose Uortgage defendai
noD est factum as to note only, deed of trust was admitt
dence, there was no error, deed of trust and note constit
Approved in Meiiean Nat. Coal etc. Co. v. Frank, 154
where power of attorney and letter written contemporan
principal to agent inclosing same, agent's authority limit
structions in letter. See note, 62 Am. Dec. Sll.
Trust De«d Alone vas Sufficient, without note, to author!
meat for the debt and a decree of foreclosure. See note, 62
539.
42 Tex. 24&-219, aHIPUAN 7. FUIiCBOD.
Every Part of a Written Contract upon which suit is '
material to its identity, and a variaoco in any respec
iustrument described in petritton and that offered in eviden
fatal.
Approved in Baker v. State, 14 Tex. Ap. 339, variance bet
itself and instrument set ont in indictment, whether matei
material, disqualifies former as evidence; dissenting opinio)
ern Union Tel. Co. v. Smith (Tex. Civ.), 30 S. W. 940
holding variance between allegation of contract to transmi
and proof of contract with another company, who forwa
ES ON TEXAS REP0BT8. 42 Tei. 250-255
ortian of charges, not fatal; Hill t. Tacker,
;Te no writing set up and described in pa till on,
les not apply.
Doacli V. Tsylor, M Tei. 56, omission of words
tition in deaciibing notf sued on not ft fatal
rithrow {Tei. Civ.), 28 S. W. 227, wbere dia-
and "Feb. 11th" wai bold immaterial where
me folly deiciibed.
s Written Instnunent as evidence merely be-
lad Dot been affixed.
V. Mirike, 25 Tei. Civ. 532, 61 8. W. 541, law
locuments shall not be admissible in evidence,
itaiopH, affects tbeir use in federal conrte only,
aace between allegation of note signed by "S.
of one by "8. P. Walker."
. Pay, 2 Tex. Ap. Civ. 734, allegation of note
Bank," and proof of one payable "at Ooue-
ENS ▼. STATS.
UovB tlie Ood» and if supported by precedent
:. 309.
r Ooutiniuiice complies with requirement! of
« in granting it.
V. State, 5 Tex. Ap. 186, and Peeler v. State,
affirming mle; Nelaon r. State, 1 Tex. Ap. 44,
lanee in capital case, though not in strict
:ory requirements, ahoald strongly commend
onrt; Swofford v. State, 3 Tex. Ap. 85, eontin-
rst are within discretion of court; Brown v.
wbere order for first continuance set aside,
mdant, subsequent application for continuance
r. State, 10 Tex. A p. S33, under preaant eode
ontinuance is in discretion of court.
b0 Denied Defendant who before indictment
default of bail, (or lack of diligence in pro-
I indictment.
T. People, 30 Colo. 123, 69 Pae. 513, following
BBB8 T. STATE.
Oommlttlng Aggravated Aflaanlt by etriking
bave been a deadly weapon, cannot complain
ault was not given in charge to jury, where
istol, as used, was a deadly weapon.
y V. State, 1 Tex. Ap. 667, charge that pistol
idly weapon is sufScicnt to charge aggravated
Ironeon v. State, 2 Tex. Ap. 47, where court
of simple assault and self-defense wben evi-
gravated assault, it was not errorj Hunt v.
vhether weapon ia "deadly" is matter of proof,
I upon manner of its use; Bligs v. State, 20
42 Tex. 256-260 NOTES ON TEXAS KEPOETS.
Fla. 752, 51 Am, Eep. 630, weapon may be deadly,
especially deaigaated for deatructioa of life, oi inflictiot
42 T«X. 256-259, TAYIX)E T. POEB.
Wten. Defendant, Tbiocgh Accident or lltatake, and
fault in proper degree of care, fails to present his c
court will, in its discretion, grant relief by iojunctlon
ceeUinga under judgment, and reeiamine case.
Approved in Overton v. Blum, 50 Tei. 424, reaffirminj
Ins. Co. V. Brannon, 99 Tei. 398, 89 S. W, 1000, 2 L. E. j
one may »ue to reform contract for mistake and in saa
recovery on contract as reformed; Brown v. Dutton, 38 '
85 S. W. 455, proceeding under Key. Stata., art. 1375,
judgment obtained on service by publication is tried i
separatB from original cause and method of appeal
judgment in such proceeding irrespective of original judj
V. Wool ridge, 46 Tez. 494, 49C, proceeding in equity
judgment is not maintainable for irregularity in proeee
authorised consent to its entry by counsel, unless fran
Wcod V. Lenox, 5 Tei. Civ. 322, 23 8. W. 813, in «cti
judgment and enjoin proceedings thereunder, it is not
show irregularities, injustice, and meritorious cause oi
must be shown that party was prevented from proset
fending by fraud, accident, or acts of opposing party,
of hu own; Beck v. Avondtno, 20 Tex. Civ. 335, 50 3. T
attorney refused to represent defendant, and failed tc
defendant entitled to new trial on ground of accident
Bowdea v. Crow, 3 Tex. Civ. 5B8, 21 3. W. 614, if ji
award of arbitrators sboald not bo set aside tbey procee
Adams V. First Nat. Bank (Tei. Civ.), 52 8. W. 643, j
nob be set aside, because counsel had agreed to its en
fraud is shown. See notes, 67 Am. Dec. 653, 654; 19 A
30 L. B. A. 787.
New Trials In Eqnity, in regard to all matters adjudi
are never granted tn terms.
Approved in Overton v. Blum, 50 Tez. 423, and Edd
Glathery, 71 Te*. 281, 11 8. W. 1101, new trial canno
after adjournment of term of court at which judgment '
When, After Expiration of Term, injunction is issued
ceedings under judgment, upon new trial, judgment si
finally of case; judgment permitting plaintiff to plead d<
he had neglected in former suit, and continuing cause, is
from which no appeal lies.
Approved in Eaymond v. Conger, 51 Tei. 539, judgmc
ing injunction, without a hearing, is interlocutory, fri
appeal lies; Eaymond v. Conger, 51 Tei. 540, where inji
to restrain proceedings under judgment, on Snal heariu,
•honld be disposed of; O'Neill v. Brown, 61 Tex. 39, wh
granted, in case where judgment rendered on service b;
defendant becomes quasi plainbiS, and burden of proof
42 Tex. 260, SMITH t. BOBB.
Writ of Error is not the Eemedy for one removed fn
istration, who gave no notice of appeal at time of his
TES ON TEXAS BEPOBTS. 42 Tei. 260-265
9 to obtain sppe&l or review as are contemplated
£AKA T. BTATB.
le had upon Testimony of aeeompliee, nnleBi cor-
idence teudiDg to connect defendant with offenM
1 V. State, 5 Tez. Ap. 193, corroboration of ac-
evidence connecting defendant with "otfenM
offense charged. See note, 71 Am. Dee. 6TS.
epublie of Hawaii v. Edwards, 11 Haw. 576,
instract that nncorro bo rated evidence of eom-
idomj is insufficient.
»d Wltli Defsndant on Trial, and wfao testifies
all prosecutions concerning afFair of which he
3e dismissed, ii considered an accomplice, and
. to have jury instrncted that they shall not
rted testimony «f such accomplice, even though
ilt.
f V. Stata (Tex. Cr.), 67 8. W. 104, where only
IS in jail as witness, told defendant where de-
d made no attempt t)o prevent killing and con-
eat, question as to whether he was accomplice
emitted to jury; Tullis v. State (Tex. Gr.), 52
;he court is necessary to an agreement with wit-
:e's evidence; Gillian v. State, 3 Tez. Ap. 137,
ccomplice is not corroborated, accused cannot b«
in Bowden v. SUte, 1 Tez. Ap. 144, one who
on agreement with district attorney, should not
!ut indictment, though he waa prevented from
opportunity. See note, 35 L. R. A. 710,
iberts V. State, 44 Tez. 123, one jointly indicted
neceflsarily an accomplice; Preston v. State, 41
. ]2g, where it is questionable whether a witness
le question sbonid be submitted to the jury.
" H Used in Code of Criminal Procedure, em-
cemed in the eommtseion of » crime, whether
V. State, 1 Tez. Ap. 303, Davis v. State, 2 Tez.
v. State, 4 Tex. Ap. SO, all reaffirming rule;
[. Ap. 579, word "accomplice" has much broader
d in article 311S, Paschal's Digest, than defend-
ive it; Ham v. State, 4 Tez. Ap. 675, in article
at, "accomplice" not used in technical sense;
■z. Ap. 511, it is error for court in defining "ac-
niUon of "principal"; House v. StaU, 16 Tax, Ap.
« charge that "accomplice" is one who aids in
senta ta Testify on condition of exemption from
>romi8ed exemption with consent of coart, and
the character of an accomplice, be must be W ,
t in ita charge.
42 Tax. 265-273 NOTEa ON TEXAS EEPOBTa ■
Approved in Smith t. State, JO Wyo, 16T, 6T Pac. 979, follr
rule; Gates t. State, 4S Tex. Cr. 138, SB 8. W. 772, where codete
turned state's evidence, but sucb matter not submitted, witoess i
ing be nas not connected with crime, and court not instructing
he was accomplice, there is reverBlble error; Csmron v. State, 32
Cr. 182, 183, 40 Am. St. Hep. 706, 22 S. W. 683, state's agreenie
dismiss if defendant turn state's evidence is a good defense aj
further piosecution. Bee note, 40 Am. St. Rep. 768.
Distinguished in Zollicoffer v. State, 18 Tex. Ap. 3X7, not en
submit question of "accomplice" to jury; White v. State, 30 Tei
657, 18 S. W. 463, failure to charge jury that witness was an a
plice is not error; dissentiug opinion in Oatee v. State, 50 Tex. C
95 S. W. 108, majority holding where codefcnilant turned state';
dence, and he denied connection with crime, charge leaving to
to determine whether he was accomplice is erroneous.
Tbat Defendant Staould b« Acquitted because evidence as to c<
boundaries does not «BtabUsh jurisdiction beyond reasonable (
does not seem within contemplation of law.
Approved in McBeynolds v. State, 4 Tex. Ap. 329, to refuse c
that reasonable doubt as to which county assault was committed i
ground for acquittal was not error; Deggs v. State, 7 Tex. Ap. 3
suffices if, from the evidence, the jury may reasonably conclude
offense was committed in county alleged; Achterberg v. State, 8
Ap. 464, reasonable inference from testimony authorizes finding
offense w«3 committed in county alleged.
M is cell an eo as. — Miscited in Stewart t. State, 4 Tex. Ap. 524.
42 Tex. 265-.275, FASKEB ▼. STATE.
To Oonstltiite ExpTesB Malice, act of killing mast not result
mere sudden, rash, and immediate design, springing from an i
siderate iropahe, pasaian, or excitement, however uujastifiab
unwarranted It may be; in such a case, the sedate, deliberate mi
wanting, and without it there can be no express malice.
Approved in Boberts v. State, 5 Tex. Ap. 151, and Martin
State, 30 Tex. Ap. 137, 26 Am. St. Bep. 8B6, 16 S. W. 768, bol
affirming rule; Manning v. State, 48 Tei. Cr. 5T, 85 S. W. 1149, i
ing rule in prosecution for murder where couple of hours before
ing deceased had forced defendant to apologize on his linees for i
ing former of having insulted defendant's wife; Ferrell v. Stai
Tex. 509, drunkennesB may be essential fact in determining mal:
case of murder; Duehbe v. State, 1 Tei. Ap. 166, beating one so tb
dies from its effects, though killing not intended, is murder
eiprcBB malice; Plastrrs v. State, 1 Tex. Ap. 681, where officer
a person who resists arrest, there is no expieBs malice; Stewf
State, 4- Tex. Ap. 524, intuiting words used toward female rclati
accused reduces voluntary homicide to manslaughter; Burkha
State, IS Tex. Ap. 621, court held that issue of murder in secoi
gree raised by evidence; Jones v. St&te, 29 Tex. Ap. 340, 15 S. W
held that Issues of murder in seeood degree and manslaughter
raised as well as murder in the first degree; Beyons v. State, 32
Cr. 153, 22 S. W. 591, when homicide is reanlt of sudden, rasb
immediate design, springing from inconsiderate impulse, passic
excitement, it is murder in second degree; Hatl t. State, 33 Te:
196, 26 3. W. 72, there may be malice when the mind is not
Eolutely calm, unruffled, or self-posaessed"; dissenting opiuic
OTBS ON TEXAS BEPOBTa 42 Tei. 263-276
Tei. Cr. 537, 56 S. W, 351, majority raising the
iety of cbarga stating mind must be absolutelj
.e express malice, but not deciding it. See ootea.
Am, Dec. 529; 97 Am. St. Hep. 7S5.
endo in Spears v. State, 41 Tei. Cr. 535, 56 S. W,
it deciding, tfiat charge stating express malice
the mind must be absolutely unruHled is not
to Murder ia formed nitb a sedate, deliberate
h design being executed while the slayer is under
e, passion, «r other «icitement, will not change
DTeas malice.
rard t. State (Tex. Cr.), SS 8. W. 78.
ceaa Uallce, killing must result from act done in
I design of sedate, deliberate mind to kill de-
in him, by an unlawful act, some serious bodily
iTobably end in depriving him of life.
It V. State, 2 Tex. Ap. 375, 376, express malice is
was design to do serious bodily harm by unlaw-
e was no design to take lite; Taylor v. I^tate,
ntentional killing of one person, in attempt to
;preBS malice, is murder in second degree. See
5.
ig Dmnk, or mere menial excitement, or ungov-
rage, which may be engendered by drinking in-
ill not mitigate criminality of voluntary killing
a V. State, 11 Tex. Ap. 561, 562, reaSirming rule;
X. Ap. 546, drunkenness does not mitigate val-
ult with intent to kill; Jeffries v. State, 9 Tex.
cannot mitigate an assault with intent to murder
t( Houston V. State, 26 Tex. Ap. 662, 14 8. W.
ng drunk will not reduce homicide from murder
B note, 40 Am. Bep. 561.
not Imputed aa presumption of law from unei-
;; but to warrant a conviction of murder in first
iTOved, by euch evidence as is reasonably suffi-
of its existence.
1 V. State, 4 Tex. Ap. 2S8, and Gaitan v. State,
, both reaffirming rule; Murray v. State, 1 Tex.
aliee not presumed where death ensues from
dly weapon in manner calculated to kill; Single-
Ap. S07, express malice is presumed in murder
■petration of robbery; Bicharte v. State, 5 Tex.
rge that killing without cause or excuse is of ex-
rder in first degree.
'roved, and it is not shown to have been done
I, induced by adequate canae, or under eircum-
or justify it, ouch killing must be regarded as
led, and, therefore, with the malice which the
homicide.
V. State, 5 Tex. Ap. T. See notes, 4 L. B. A.
A. 546; 2 L. B. A, 130.
42 Tei. 270-284 NOTBa ON TEXAS BEPOET!
Ezpress Mallca itu7 l» ProTed by all sueb mat
tinent to tbe isBue which may be suggested by tl
Eeaffirmed in Gomez v. State, 15 Tex. Ap. 330.
Tbe DUrerence In tba Degree of Murder does
leogth of time taken to form tbe design, or tb
it is executed, but upon the state and eouditioD o
design is formed.
Approved in Halbert \. State, 3 Tex. Ap. 859,
of aoe person, in attempt to kill another wltl
murder in the wcond degree. See note, 18 Am. I
Wbetber KlUlng was Done Under One State
ia a question for the JQi?, and should be submitte
tion under iuatmctions presenting alternative i
the testimony, from which the proper coucluaion ■
Approved in Perry t. State, 44 Tex. 479, 480,
only law applicable if eon&ict bad been brough
kill, erroneous.
It IB not Pn>p«r tor Judge bo announce merel;
of law defining otFense charged, but he ought a
on the law applicable to particular case before th
facts proved.
Approved in Johnson v. State, 1 Tex. Ap. 118,
judge having failed to define "theft" according t<
iti essential ingredients.
42 Tex. 276-281, FKANOO ▼. STATE.
Entrance into HonB« of Any Fart of Body, bon
sufficient to warrant conviction for burglary, pr
to commit felony and other statutory requisites i
Reaffirmed in Burke v. State, 5 Tex. Ap. 79,
20 Tex. Ap. 387, 54 Am. Rep. 53& See note, 2 A
Facta Tbat House was Entered at 4 o'clock
raising of window so that fingers were inside, I
show any excuse, that there was valuable pro
and no other known desired object, are snfficieni
of jury that intent was to steal.
Approved in Walton v. State, 29 Tex. Ap. 16S
plying rule in ease of burglary with intent to rap
42 Te«. 2S2~2B4, BXHO ▼. STATE.
Verdict of Jury That Defendant Agreed to co
and is liable as principal offender, in trial foi
support judgment.
Distinguished in Lindsay v. State, 1 Tex. Ap.
the jury, find the defendant guilty of the crime,
ment at five years in penitentiary," for theft, held
It Is Error to Instruct Jury that presence of
robbery, his failure to give tilarm, his silence, b
supposed concealment of offense were sufficient
1 Flanagan t. Womack, 54 Tex. 5
failed to connect defendant with assault, not en
to return verdict in bis favorj Jackson v. State, 2
cealment of offense after its commission not su
guilt; Qolden v. State, 18 Tex, Ap. 639, whpre e
cased was present, silent, and inactive, at robbe
S ON TEXAS REP0BT8. 42 Tex. 284-2D3
pm&n V. Btat«, 1 Tex. Ap. T29, in casea of
s upon tbe Btate.
V. State, 23 Tex. Ap, 24, 5 8. W, 172, where
lonera kill a, person in making their escape,
Jchackey v. State, 11 Tes. Cr. 259, 53 S. W,
mained silent ae to the crime, and concealed
1 person's eoDoection with it, does not mako
inder execution, which
lued more than twelve'
is not sufficient; it should negative fact
had issued before that time.
V. Wyett, 49 Tex. 632, act of Norember 9,
nts becoming dormaat, did not apply wbeie
roe execution witbin year from judgment;
BX. Ap. Civ. 392, injunction will be granted
dormant judgment. See note, 30 L. R. A.
iMise mbmita bis defenses in matter within
cannot plead ignorance of eubsequcat pro-
'. SeeligsoD, S7 Tez. 633, parties properly be-
to take notice of petition in interTention,
t2T; 30 L. E. A. 704.
1 V. Justin 2 Tex. Ap. Civ. 605, injunction
•edingB where petitioner had no notice tliat
lought to be annulled.
A ▼. DotrauLsa.
le la Good F»itli, according to a list returned
ax on income ae due from him to the state
pod defense to plaintiff's claim for damages.
1 V. Fort Worth Nat. Bk., 83 Tex. 460, 29
W. 746, regular fees paid notary who made
t recoverable.
a Undei Color of Office officer must know-
in than authorized,
ep. 453.
rrsKS.
9e, be sufficient
n no exception is taken or counter charge
ppear that jury was misled by charge given.
'. Baird, 1 Tex. Ap. Civ. 389, Chevaral v,
r, 105, and Landes v, Eichelberger, 2 Tex.
tug rule; Bowles v. Brice, 66 Tex. 731, 2 3.
verdict could have been rendered by jury.
It material; Lee v. Welborne, 71 Tex. 502,
jrd shows jury could not have brought in
rdiet, error in charge is not ground for re-
42 Tei. 298-303 NOTES ON TEXAS EEP0RT8.
veraal; Gulf etc. Rj. t. Jones, 1 Tex. Civ. 375, 2] S.
ol omiEsion to charge, wbich did not mislead jury, not .
Tersal. Sea note, 6S Am. Dee. 98.
42 Tex. 298-301, I<OFEZ T. BTATR
OonetltutioiiiJity of an Act under whieh one liolds b:
office of district clerk will not be determined on appe.
cause nith which clerk had no further eonneetion tt
Approved in CommiasionerB v. State, 24 Fla. 60, 12
186, 3 So. 473, constitutionality of act cannot be calll
by party whose rights its enforcement does not affect.
Cliarge Set Forth In Indictment, and facts in evidei
whet is the Ian applicable to case.
Approved in Jenkins v. State, 1 Tex. Ap. 35T, failu:
charge law applicable to case is ground for reversal; B
10 Tex. Ap. 703, it is reversible error not to charge el<
tiueotly lew applicable to delirium tremens, when e<
this issue; Bodd? v. State, 14 Tex. Ap. 541, when law
defease is not affirmativelj given in ebarge, it is levers:
The Words "Well and Truly to Try tha lame between
the defendant" are not the equivalent of oath prescril
563 to be administered to jury in all criminal cases.
Approved in Clampitt v. State, 3 Tex. Ap. 641, oath
article 563 superseded oath prescribed by act of 1S46.
42 T9X. 301-305, FLTKN V. BTATB.
Wben Focketbook In Pocket of Ownei is seized by
without knowledge or consent of owner, and drawn hi
pocket, there was sufficient taking away to constitute t!
Approved in Bennett v. State, 16 Tei. Ap. 237, tt
person per se a felony without reference to value of
if of any value whatever; State v. Chambers, 22 W.
40 Am. Sep. 558, 564, in simple larceny, slightest rem
completes offensei dissenting opinion in Thomas v. Stat
333, 101 S. W. 7BS, majority holding under evidence de
not have taken money from prosecutor's pocket while in
intercourse without his knowledge at time of taking.
Am. St. Bep. 562, 585; 10 L. B. A. 109.
Distinguished in Thomas v. State, 51 Tex. Cr. S31, 3
798, 799, holding under evidence defendant could no
money from prosecutor's pocket wliile in act of aexu
without bis knowledge at time of taking.
Wbeie Accused Drev Focketboolc half way oat of poc
without latter'B consent or knowledge, there was Bufficit
if taken with felonious intent, to constitute theft.
Approved in Dukes v. State, 22 Tex. Ap. 193,- 2 B.
Green v. State, 28 Tex. Ap. 497, 13 S. W. 786, in thi
complete when property has gone into possession of t
not be carried away; Files v. State, 36 Tex. C(. 207,
if without knowledge of prosecutor, defendant slipped
prosecutor's pocket and secured in his hand pocketbook
he was guilty of theft.
Distinguished in McLin ». State, 29 Tex. Ap. 173, :
no theft where complftinant was aware of attempt to pi
before thief had his band on purse.
) OH TEXAS BEPOBTS. 42 Tex. 305-315
T. STATE.
being pftsaed to meet condition of things
inoperative, and as it embraced more than
itional.
V. Finley, 93 Tex. 177, 54 a W. 344, act of
itional.
13 V. MONEOE.
is not safficieut in Mnonnt, eoart ma^ per-
ns; bnt judgment perpetuating injunction
at bond ibould be thereafter executed was
M>D ▼. CampboU, 15 Tex. Civ. 321, 40 S. W.
made perpetoal on final hearing, refusal of
rr injanctioD becauso of failure of plaintiEF
I T. STATE.
OoTpns Oases, record ahould contain testi-
lumBtances of accoied, bo as to enable court
amount of bail, if granted,
s Walker, 3 Tex. Ap. 673, and Bnaton v.
lOKE T. WOODWAKD.
1S4S, jurisdiction of probate court was nnt
n tbe petition for administration, of facts
r will absence of anj evidence of presenta-
tenee of claims against the estate require
void; nor ie it necessary to validity of ad-
or necessity for administration appear of
, Terue, 68 Tex. 418, 4 8. W. 550, allegation
died before winiiing up estate is sufficient
ir letters of adminietration de bonjg noo;
21 Tex. Civ. 354, 52 S. W. 89, judgment
cannot be eollaterally attacked on ground
ate are paid.
■e Zavalla, 1 Posey V. C. 638, that an estate
ad expenses, to tbe low or want of benefit
>ct ezlBtence of administration. See note,
atdo Sole of Property by testator's admin-
,ud is, in substance, a bill of review, and
1 in case of minors two years after their
ming rule; Me-
lt avoid sale of
I, direct proceeding must be resorted to,
!d in four years; Miller v. Miller, 21 Tei.
lill to review probate court proceedint^s in
brought by minora within two years after
Manner v. Moulton, 138 U. 3. 491, 11 Sup.
imitation to review proceedines of probate
V. De Zavalla, 1 Posey U. C. 638, limitation
42 Tex.
Distin
800, 16
attacked
anch act
be held
flrming
563, 87 I
expense
debte, oi
Boulwar
by Btat.
aions of
scribe pi
64, orde
accurate
64, IS £
V. MeDo
ordering
Itaath
presump
Appro
that jur
eon, 67 '
15 S. Vi
T12, "W
'fist' deg
Verdi<
tbe indi
until de:
3 Tei. J
13 Tex.
Cloud V.
99 Mo.
Tex. Ap
fendant
of guUt,
)N TEXAS EEP0BT8. 42 Tei. 320-338
Tei. Ap. 206, verdict: "We, the jurj, find
■ cbarged, but we do fiod hiia guilty of
:d adsese bis pennlty," etc., ib good; Milei
trial for theft of property worth tweoty-
the jury, fled the defendant guilty of
ty at two years in the state penitentiary,"
late, 4 Tex. Ap, 212, "We, the jury, find
irder in the first degree," is a good ver-
ei, Ap. 390, "We, the jury, find the de-
his puniBhnient at three years' eoofine-
is a good verdict where charge is "as-
er"; Dubose v. State, 13 Tei. Ap. 425,
ial ie insufficient, it does not opernte as
degree; Wooldridge v. State, 13 Tejc. Ap.
}, the jury, find the defendant guilty of
' etc., is insufficient and illegal; Sanders
in trial for murder, verdict; "We, the
: of the defendant, Mitch Senders, upon
ement in the state penitentiary for life,"
V. State, E4 Tex. Ap. 532, 7 S. W. 243,
felony and misdemeanor, and verdict was
indictment," and assessed penaltT appli-
ell as to theft, verdict held ilkgiil; liar-
1 8. W. 983, general verdict of "guilty,"
is insufficient in murder case.
WHITTIiESET.
for Boueftt of 8apant« Estate of Wife,
signed by husband and wife, may be en.
or separate estate of wife at option of
eneman (Tex. CSv.), 46 8. W. 81.
Iiicli no action is invoked is in general
defective plea is cored by verdict, ^et
fective, and fails to state a cause of ac-
id not rely en his demurrer wili not pre-
iself of euch defect on appeal or writ of
Prendenthal, 74 Tex. 55, 11 8. W. 1051,
« dissolution of former partnership, and
of assets, was cured by verdict for plain-
■. Davis (Tex. Civ.), 43 S. W. 605, where
by pleading in essential matter, the error
TUUiLES.
>pante Piopoitr it community property,
I a suit Bgaiuit him by the wife of her
ffset his debt against use and hire of her
iommer, 61 Tez. 127, creditor of husband
from wife, on her separate note, to psy-
rhere creditor prevented payment of in-
S5 Tei, 405, crops grown on wife's land
lum V. Light, 81 Tex. 421, 16 S. W. 1093,
42 Tor. 339-345 MOTES ON TEXAS EEPOBTS.
creditor of husband cautiot levy upon cows, separat
wife, and obtain lien on unborn calves, nor hold then
tion until calves ms-j be appropriated^ Stringfellow
Tex. 27S, 18 S. W. 689, increase in value of mules, sep
of wife, Dot eommunity property; Holland v, Sewar
Civ. 530, note for lumber taken off wife's separate pr
muDity property; Craxton v. Byao, 3 Tex. Ap. Civ. ii
out of dirt of wife's separate land is commnnity prope
86 Am. Dec. 633.
42 Tex. 339-342, BOGBBS ▼. JOHITS.
No Appeal fa Allowed by Iaw from judgment of
npoD contest of election held under act of May 8, 18T3
Approved in Buckler v. Turbeville, 17 Tex. Civ. 121,
TeafGrming rule; Williamson v. Lane, 62 Tex. 317, no a]
district court in election contest for county judge.
Am. Dee. 806.
Determluatton of Besnlt of Eleetloa is not a mattei
ordinary jurisdiction of law in courts of justice; it is
of a political question, to be regulated under the consi
political authority of the state.
Approved in Norman v. Thompson, 96 Tex. 253, 72 S.
to post one of notices required by statvte is not grou
of local option election; Bobinson v. Wlngate, 36 Tc
8. W. 1070, injunction not maintainable to prevent
court from canvassiag returns and publishing result i
election, on grounds rendering election void or avail
aside under general statutes aa to contested elections
State, 109 Ind. 131, 10 N. E. 607, quo warranto n
settle title to office of lieutenant-governor, jurisdictioi
troversies being vested in the general asgembly by th
Thomas v. Franklin, 42 Neb. 312, 60 N. W. 569, elect
test election for relocation of county seat; Garrard
11 Nev, 386, courts have no jurisdiction in contests f
legislature i Qoff v. Wilson, 32 W. Va. 406, 9 a E, 3]
jurisdiction to declare result of election for goveri
Conley (Tex. Cr.), 75 8. W. 302, arguendo.
DistiDguiBhed in State v. Owens, 63 Tex. 269, suit f
not a political question, but matter of judicial cognizat
Rule changed by statute in Roach v. Malotte, 23
66 S. W. 702, article 5, section 8, of constitution c
jurisiliction on district court of election contests.
The Legislature lias Oonstltated the District Oonrt a t
for the trial of contests as to the validity of electio
and connty officers.
Approved in Williamson v. Lane, 52 Tex. 346, disi
jurisdiction to try election contest for county judge; <
pleton, 62 Tex. 557, contest of election as to sale c
liquora in certain county not cognisable in district coi
Distingiiisfaed in Ex parte Towles, 48 Tex. 436, 44
election contest not cognizable in district court.
42 Tex. 342-346, SWAHH ▼. MVSCHKE.
A Written Becelpt for Money or Frtqwrt? may bi
contradicted by parol.
BeaMrmed in Brown t. Dennis (Tex. Civ.), 3D 8. W.
TES ON TEXAS REPOETS. 42 Tex. 343-360
CIH T. STATE.
NecessAiy to be alleged oi proved in order to
^or tbeft.
10 T. State, 6 Tei. Ap. 241, and Conner t. State,
Qote, 57 Am. Dec. 272.
y to AUego tbat the taking in theft was
"fraudulently" is equivalent to "feloniously."
;o T. State, 6 Tei. Ap. 240.
flying with t&e Statutory Beqnlrement for the
error tn refuse the application.
T. State, 2 Tex. Ap. 450, StephenBon v. State,
niler T. State, IS Tex. Ap. 256, all reaffirming
te, 3 Tex. Ap. 85, eontinnance other than first
wbete process sued out, but not served and re-
Uctee STB and 380 of the Code of Proeedi^re,
il's Digest, articles 6601 and 6602, relate solely
ce of witnesses before grand juries.
J V. State, 5 Tex. Ap. 186.
iTTI T. HOBBT.
t Parol ETld«ncs of boundaries, which are dO'
1 of adverse patty, who has been noti-
e original.
lit AnWQdmeiit to Iw FU«d, disclaiming as to
imiting prayer for foreclosure, to land actually
, when plaintiff ascertained fact for Qret time
from original deed in course of trial,
.n v. Heidenbeimer, 16 Tex. Civ. 118, 40 3. W.
omental answer to be filed during trial, to show
st in result, not reveiaible error.
TIN T. STATE.
Bead to J1117 on trial of criminal cause bore
t another criminal cause raises no preeuinption
1 on trial of another party, nor it applicable to
it had been so used be ground for new trial.
T. State, 11 Tex. Ap. 261, use of charge, the
ed defendant and another had been jointly in-
tiarge announces severance, is not ground for
r Ono Jnior to Anotlm, after they had retired
erdict, in regard to character of accused, is not
lid authorize a new trial.
. Stale, 28 Tex. Ap. 95, 12 S. W. 495, reaffirm-
ite, 3 Tex. Ap. 102, separation of jury does not,
rdict, even in a capital case; Jack v. State, 20
, after reaching determination of guilt. Juror
penalty because defendant was a porter, tliere
warrant new trial. See note, 31 L. B. A. 493.
a V. State, 42 Tex. Cr. 254, 58 S. W. 1005, atate-
0 another that defendant had served term in
defendant to new tiiaU
42 Tex. 36ft-377 NOTES ON TEXAS BEPOBTS.
To Authorize New Trial od account of misconduct of
be shown that defendant has not received fair and ii
hj reason of such misconduct.
Approved in Davie v. State, 3 Tex. Ap. 102, and Jacl
Tex. Ap. 660, both reaffirming rule; Hodges v. State, 6
conflicting affidavits of jurors as to miscoaduct, made i
assail verdict, shonld not be allowed except as last re)
SalversoD, S7 Mien. 49, 91 N. W. 4, upholding denial
becanae one of jurors was intoxicated.
42 Tex. 360-377, WAI.KBB T. STATE.
CliarKa Which Assumes That No Evidence of Allhi
fendant, nnlesa it produces conviction on minds of J
feadaut was not present at commisBioa of offense, is e
Approved io Ayrcs v. State, 21 Tex. Ap. 405, 17 i
burglar; where defense is an alibi, it is error to char
proof is on defendant; Gallaher v. State, 28 Tex. Ap. i
1088, burden of proving alibi not on defeodant; proof ol
reasonable doubt is sufficient to warrant acquittal; Sti
lis Mo. 16^, 174, 24 8. W, 453, 454, instruction to find <
guilty if he was not at the place at the time offense i
erroneous. See note, 41 L. B. A. 536.
An Alibi la not » Defense at All in anjr other sensi
butting evidence.
Approved in dissenting opinion in Qallaher v. State,
270, 12 S. W. 1090, majority holding burden of prov
on defendant; proof of alibi raising reasonable doubt il
warrant acquittal.
If Evidence of Alibi Frodnceg upon Ulnds of Jul
doubt concerning truth of facts constituting guilt of
would be sufficient to require an acquittal.
Approved In Humphries v. State, IS Tex. Ap. 309,
Howell, lOO Mo. 654, 14 S. W. 14, both reaffirming m
United States, 147 Fed. 432, where in robbery indictl
defendant "did then and there" commit an assault, error
to prove defense of alibi defense must show that at ti
defendant was at another place so tar away that he e<
participated in offense; Webb v. State, Q Tex. Ap. 514.
refuse to instruct for acquittal if there was reasonable
fendant's sanity; Bennett v. State, 30 Tex. Ap. 343, 3
charge that if jury believe proof of alibi they can acquit
McNamara v. People, 24 Colo. 69, 4S Pac. 544, charge thi
satisfied minds of jury in relation to alibi they sho
erroneous; State v. Eelly, 16 Mo. Ap. 215, where there
evidence as to alibi, it is error not to instruct jury b
to it. See note, 35 Am. Bep. 34.
Whero DefeuM Belled upon vas an Alibi, and the chs
opinion of judge as plainly and much more injurious
had been directly expressed, it was error and ground
Approved in Brown v. State, 3 Tex. Ap. 314, chart
asnume guilt of accused, nor indicate any opinion of i
question; Harrison v. State, 8 Tex. Ap. 186, judgment
erroneous charge on circumstantial evidence. See notf
Bep. 800.
Charge That Dying Declarations were "worthy of si
other evidence '' is objectionable, as charge upon weigbi
ON TEXAS EEP0BT3. 42 Tex. 377-383
roflord, 121 Iowa, 408, 96 N. W. 894, and
390, charge upon weight of cireumstantial
Cunningham v. State, 20 Tei. Ap. 168.
gbt of circumstantial eviclenfe not ground
epted to and not prejudicial to defendant.
oga of TeotM of criminal cause is made,
it canoot be overborne by anj' number of
ve cbaracter.
Itate, 43 Tex. 419, and Anschicka v. State,
b; Davia v. State, 19 Tei. Ap. 221, counter-
til credibility or means of knowledge of
rlct Jndg« in determining merits of appli-
» is a judicial, and not a petsonal, discre-
e revised on appeal.
T. State, 14 Tei. Ap. 302, where discre-
e will not be revised on appeal.
g tbs AppUeation for change of venue are
if the prejudice as awom to bv them does
1 by proof of affirmative facts, as well as
ie, 1 Tex. Ap. 454, 455, court may examine
change of veoue as to their means of
tste, 71 Tei. Ap. 535, where atSants shown
of venue may ba refused.
: of ETld«nce is not necessarily a ground
ears, by a bill of exceptions, that it was
te, 10 Tex. Ap. 596.
lit Connter-affldavits, when deemed neces-
tcta submitted in evidence, in application
. State, 3 Tex. Ap. 544.
to as having been twice tried and re-
'. State, 3 Tei. Ap. 670, 674. History of ease
State, 13 Tei. Ap. 639; Black v. State, 42
>f principal case as to charge similar to
reference to alibi.
'. STATE.
I has Formed Opinion, and that it would
a his opinion, and that bis opinion would
court shonld not have been satisfied that
V, State, 7 Tex. Ap. 543, 54T, juror who
ge bis opinion is not impartial; State v.
W. 639, sheriff who expressed opinion that
ipetent to summon special jury,
ilniou in State v. Bryant, 93 Mo. 292, 6
1 opinion from newspaper accounts, which
change, is competent. See notes, 36 Am.
Am. Dec. 67.
tther juror is qualified, it is safer to decide
V. State, 7 Tei. Ap. 548.
42 Tex. 383-392 NOTES ON TEXAS EBPOETS.
WlLen tbo Qu«ation Is First Asked the juror u to
he is made tbe judge of the extent to which tbe couclu
formed will influence Mb action.
Approved in Stagaer v. State, 9 Tex. Ap. 452, when ;
that bis conclusion will influence his verdict he must be
Miscellaneous. — Reference to evidenee in this case i
State, 1 Ter. Ap. 387; Walker t. State, 13 Tex. Ap, 63
to hiatoTj of case.
42 Tex. 383^86, STATE v. UcCKAOEEH.
Thongb FtovIsIoh of ConBUtutlon that "ever; law ena'
legislature shall embrace but one object, and that shall t
in its caption," is niaQdatoij, misrecital in caption of
intended to be enacted does not affect validity of amen
Approved in Ounter v. Texas Land etc Co., 82 Tex. SC
843, subject is not expressed in title where reference Oi
to same taw; English etc. Investment Co. v. Hard;, 93 1
8. W. XTl, title of amendatory act is sufficient when it
numbered article in a code; Hasselmejer v. State, 1 T(
title, "An act to amend article 766 of the Penal Code,"
tional; Nichols v. State, 32 Tex. Cr. 404, 23 8. W. 6
amending act is sufficient if it names tbe article, chapte
code to be amended; Tabor r. State, 34 Tex. Cr. S3S,
Rep. 726, 31 8. W. 662, act which in its title amends
simpl}' by reference to code articles, is valid; Oennan
Luckett, 12 Tex. Civ. 142, 34 8. W. 174, where two sectii
different phasea of same subject, title of general snbje
these sectioDs is valid; State v. Hallock, 19 Nev. 390, 1
act to amend act relating to compensation of state offic
of snpreme court, and attaches of state government, is vi
embracing more than one subject; Loomis v. Bunge, 66 F«
of supplemental act which gave title of act it sought to
held valid; Daj Land etc. Co. v. State, 68 Tex. 543, 4
word "object" held to bo used in sense of word "subject,"
61 Am. Dec. 340, 344; 73 Am. Dec. 218; 86 Am. Dec, 360;
Sep. 483; 55 L. B. A. 847.
Distinguished in Eriokson v. Cass County, 11 N. D. SI
851, holding void Laws 1901, chapter 25, relating to a
attorneys' fees in actions to enjoin drainage assessmei
object of act ia not expressed iu title.
42 lex. 389-392, AKDEBSON v. STATE.
Court will not Regard a Statement, mads in a motii
trial, in reference to some other proceeding in case, whiel
does not verify as being true, as where transcript fails t>
any action was had by court on motiou for a continuanci
Reaffirmed in Nelson v. State, 1 Tex. Ap. 44, and Hoi
9 Tex. Ap. 646.
Recitation In Jndgmeat Entry in criminal cause tha
"sworn well and truly to try tbe case," is construed as
to saying simply that jury was sworn.
Approved in Harris v. State, 2 Tex. Ap. 109, recital tha
"sworn according to law to try the said defendant" does
that tbe jury oath was administered in those words; Smi
SS ON. TEXAS BEPOBTS. 42 Tex. 392-398
that jurjr were "a worn according to la.it to
hat jury were aworn according to law.
ibetliaa v. State, 2 Tex. Ap. 397, when judg-
ath from that provided by law, judgmout ia
AMS T. STATE.
0 Allege In lodlctnent particular sets done
mmitting murder, but should it be attempted
ticalar acta done by tbem T«Bpeetively, and
ime of them are inaufficleDt, indietmeot as to
r. State, 2 Tex. Ap. SOS, two defendants
1, one u actual perpetrator of murder and
avia V. State, 3 Tex. Ap. 93, and Tuller t.
indictment need not charge particular acta
; Wataon v. State, 28 Tex. Ap. 10, 12 3. W.
it cliarge each of several eodefendanta with
tted murder; Bed t. State, 39 Tex. Cr. 669,
I. W. 100*, under indictment charging several
ttent to conTict one of murder in Srst degree
1 of felonioua bomieide.
la of Orimiuja ProcednT* the word "accom-
broader senae than in article 219 of Penal
del principals and accessories, and testimony
ire corroboration before conviction could be
State, 2 Tex. Ap. SOS, and Jones t. State, 3
Irming rule; Irvin v. StaU, 1 Tax. Ap. 303,
part in theft ia an accomplice; Gillian v.
where testimony of accomplice not corrob-
warrantcd; Roach v. State, 4 Tex. Ap. SO,
full explanation of term "accomplice" in its
State, 4 Tex. Ap. 675, witness who had no
rged ia not "accomplice"; Smith t. State, 13
iberger v. State, 19 Tex. Ap. 343, charge con-
pal is not an accomplice is error; House v.
here word "accomplice" is not fully explained
tis T. State, 18 Tex. Ap. 283, charge defining
article 79 of Penal Code is error. See note,
Jniy that testimony of witness who turned
e corroborated before finding others guilty,
teatimony denied participation in crime.
State, 1 Tex. A p. 63S, reaffirming rule; argu-
:e, 1 Tex. Ap. 144, and Camron v. State, 32
, Eep. 766, 22 S. W. 683, both holding it to
to enter a nolle prosequi to obtain teatimony
danta; ZolIicotTer v. State, 16 Tex. Ap. 317,
per for court, in its charge, to assume that
e, but not error to leave question to jnry.
p. 768.
te V. State, 30 Tex. Ap. 657, 18 8. W. 484,
that witness is accomplice is not error; Pres-
;r. 309, S3 S. W. 126, where it is doubtful
43 Tex. 396-410 NOTES ON TEXAS BEPOBTS.
9 accomplice, the questio
42 Tex. 396-410, WOOD ▼. WEIJ>EB.
Testlmonlo to le Admitted In ETldence mnit t
be admitted to record must have due autbentieatioi
Approved in Eutchins v. Bacon, 46 Tex. 41S,
Houston V. Blythe, 80 •Tei. 514, usefulness at ti
paired a» evidence because issued two or three ■
tion of original protocol; Beaumont Pasture Co. v.
4134, proper to admit instrument in evideoee when
its genuineneBS.
Conaeut of Federal Bxecntlvft was easeDtial to <
within the ten border leagues.
Distinguished in dissenting opinion in Schleici
Tex. 278, 20 8. W. 124, majority holding tax deed
will not support limitation of five years.
If Theia Is Anytblng That Bestraliu Bt*t« fron
ute of limitations, it baa not yet been adjudicated.
Approved in Kennedy t. Erie re, 45 Tex. 311,
property unlawfully disposed of by trustees is ban
Truehart v. Mc Michael, 46 Tex. 22S, time duri
statute of limitations not to be computed to cample
Henderson v. Beaton, 1 Posey U. C. 31, time dur
statute of limitation not to be computed to comple
Lewis V. Davidson, 51 Tex. 257, plea of limitation
was avoided by taking eSect of constitution snsp
limitation before time of trial; McDow v. Babb,
session of land from 1852 to 1869 does not make
available; Grigsby y. Peak, 57 Tex. 151, statute c
suspended in Texas from January 2S, 1S61, to Man
frank v. Young, 64 Tex. 435, statute of limitatioi
to sale of trust property without aid of court, to
which it was security; Campbell v. Holt, 115 U. I
Bep. 214, 29 L. 487, repeal of statnte of limita
applied to debtor against whom right of action i
him of vested right. See note, 45 L. B. A. 610.
In Absencs of Proof of Date of Locatloil and an
for, limitation will only run from date of patent ii
ant in possession under another title.
Approved in Truehart v. Babcock, 49 Tex. 258, tei
cannot avail defendant under piea of limitation, if
of that time title was in the government; Tarlton
Tex. Civ. Ill, 21 S. W. 407, as against title under
tion does not begin to run until date of location o1
kins V. Hill, 2 Tex. Civ. 360, 21 S. W. 375, sheriff-
which no title by defendant in execution was show
V. Cain, 9 Tex. Civ. 200, 28 S. W. 548, possessioi
evidence of title to recover in trespass where occn
domain.
Where Sereral Tracts Sued for are described in
and name of patentees and acreage, verdict for
tracts described by name of grantee is sufficiently i
Approved in American Cotton Co. v. Collier, i
69 S. W. 1027, in aeUon to cancel c
)N TEXAS BEPOETB. 42 Tex.4U-14*
'. GABDNIIB.
n Mb owq direct examination, or on that
'e in evidence hia own declariitiong made
ine party was not preBent.
!o. V. Eastman, SS Tex. 37, fl* S. W. 863,
ritneHS not admisBible; Coffin v. Loomis
deelaratiooB admissible for one purpose
) restricted to the one purpose.
ip. 17, TUBHEB T. MTIiTiBIt.
lit upon general warranty of title to land,
y one who maiotaiaed superior title, is
est; attorney's fees, in absence of stipu-
Ilowed.
i. By. V. JackBon, 62 Tez. 212, interest
iiitj, among other elements of damage,
e to deliver on time; Estell v. Cole, 62
ot allowed in action for breach of war-
14 Tex. Civ. 300, 37 S. W. 345, attorney's
>u false representations in sale of realty;
Tex. Civ. 367, 37 S. W. 457, vendee may
' amount which was paid to such vendor
fatten v. Oarrett, 37 Ark. 613, attorney's
ndant where attachment fails. See notes,
13.
r. BAGUUro.
ot 01 Lota," as used in constitution in
■ construed to embrace "farm lots" lying
gh they may be included in jurisdictional
6; 87 Am. Dee. 467.
Vo Pact of Homestead, where they were
taideDce for homestead purposes.
mdman, 57 Tei. 431, tract one thousand
partly outBide corporate limitB not part
leeler, 61 Tei. 659, though country place
f is cultivated after family's removal to
leatead; Oliver v. Snowden, 18 Fla. 835,
ral miles from town,, not used as a resi-
ee note, 70 Am. Dec. 353.
Husband's Becmt Homestead and select
er, as against rights of creditors,
Hendrix, 46 Tex. 8, reaffirming role;
'ex. 271, whether right of election exists
r of defense.
V. Golden (Tex. Sup.), 7 S. W. 365, cited
court changed the rule on second appeal
ibetter, 56 Tex. 283, cited in support of
lay depart from law as decided on former
Tex. 566, cited as instance where court
is ruliug, but as no precedent for reviev
42 Tex. 444-455 NOTES ON TEXAS EEPOET3.
of its action where second appeal was from judgme]
■oant to mandate from supreme court; Fr&nkland
Tex. 421, cited as another inBtance SDpporting the
the supreme court will not deviate from the law it
except in exceptional cases.
42 Tex. 444-450, SMITH t. STATE.
Frandnleat Taking ol Property embisceB idea tlia
was not his own, and also that it was done to depriv
its valtie. Taking under claim of ownership, when
reason to believe claim, well founded, will not autti
of theft.
Approved in Johnson v. State, 1 Tex. Ap. 120, I
theft to jury hj court is ground for reversal; LozB.
Ap. 490, evidence to prove accused was so drunk :
to form intent to steal is admissible; Ainswortb v.
Ap. 343, Bud Harris v. State, 17 Tex. Ap. ITS, evi<l
to warrant conviction for theft of cow; Boyd v. Sti
341, it is not hog theft to kill hog openly on defei
range under claim of property, where defendant hai
hogs; Lawrence v. State, 20 Tex. Ap. 541, taking o:
mals is as much theft as if thief knew the owner
Am. Dee. 274; 88 Am. St. Kep. G04.
ThsTft la No Authority la This Stats which permi
courtroom to inspect animal alleged to have been st
Approved in Bouldin t. State, 8 Tex. Ap. 335, erro
to take with them, on retiring to deliberate, a gun an
of in testimony; Gainesville etc. By. v. Waples, 3 T<
not error to refuse to permit jury to inspect laud sc
demned; Eiggins v. State, 42 Tei. Cr. 474, QO S. 1
permit jury to inspect scene of alleged assault with ii
People T. Bush, 68 Cal. 634, 10 Pac. 175, view by ;
crime must be had in presence of defendant; Gar
Fla. 334, 16 So. 230, where there is statutory auth
State V. EUwDod, 18 E. I. 236, 26 At!. 191, dian
ones submitted to jury by state as ones stolen were
nesa for defense, but not allowed to go to jury. S
Dec. 344.
Distinguished in Territory of Hawaii v. Watanabe '.
220, upholding allowance of jury in criminal cases t(
Jackson V. State, 28 Tex. Ap. 374, 19 Am. St. Hep
452, not error to permit jury to inspect stolen sac
senting opinion in Biggins v. State, 42 Tex. Cr. 471
S78, 879, error to prevent jury inspecting scene of
with intent to murder.
Denied in Hart v. State, 15 Tex. Ap. 228, 49 Ai
error to pot in evidence clothes worn by deceased.
42 Tex. 461-455, HOUSTON ETO. B. B. v. TEBBT.
Railway Company Is Uable for Damage resulting
killing of stock by its train on railway track, when
faster than allowed by law.
Approved in H. & T. etc. R. H. v. Ijougbbridge,
755, railroad need not fence its road, but fencing i
TE3 ON TEXAS BEPOBTB. 12 Tax. 455-462
iwn In killing Btock; Jackson y. Kansas Citf
13, 58 a W. 38, and Grand Trunk Ry. v. Ives,
1. Ct Bep. 6B3, 3G L. 489, botb holding where
train running faster than ordinance peimita,
. See notes, 49 Am. Dec. 2C7; 77 Am. St. Bep.
isentiog opinion in Sluder v. St. Louia Tianaii
J, 88 8. W. 6C3, 6G5, 5 L. B. A. (n. «.) 186,
!t. Loais ordinance providing that street-car
Int appeatuDee of danger from vehicles, stop
Its Question Outside of Case aa made bj plead-
rerdiet might have beeo found, judgment based
le reversed.
y Lumber Co. v. Goldsmith (Tex. Cit.), M
in etc. By. v. Powell (Tei. Civ.), 41 3. W. G96,
Loving V. Dixon, 56 Tex, 79, charge embracing
d by pleading as to liability on note is errono-
. French, S6 Tex. 98, 23 S. W. 644, charge em-
legligence, not contained in pleadings, is erro-
, V. Montgomery, 4 Tex. Ap. Civ. 405, 16 8. W.
bility of railroad for not feeding cattle held
ne of pleadings; Hall v. Johnston, 6 Tex. Civ.
here question as to whether or not agreement
issue, it was error to submit it to jury; Gulf
Tex. Civ, 350, 26 8. W. 231, failure to plead
of minority of employee, in action for damages
und for reversal.
TE T. DUKE.
iwfnlly CairylDK DMdly Weapons should nega-
carried by person, or at a place or under oir-
r statute.
T. State, 42 Tox. 464, reaffirming rule; State
2, inaictment negatived that pistol was carried
amstances allowed by law; Lewis t. State, 2
ck traveler is not permitted to carry pistol
on bis person; Summerlin v. State, 3 Tex. Ap.
article 0514, PaBchal's Digest, that negatives
lace ofiicer is good; WooJwurd v. State, 5 Tex.
lat accused carried pistol on his pprson nega-
raveler; Rice v. State, 37 Tex. Cr. 37, 38 S. W.
rape upon female under tifteen years must
is wife of accused; Williamson v. State, 41
J. 570, appljing rule to indictment for selling
's prescription; dissenting opinion in Snearley
516, 52 8. W. 551, majority sustaining indiot-
;capation tax law, though failing to negative
note, 5 L. B. A. 833.
isdell V. State, 5 Tex. Ap. 266, 267, provisos of
ice of medicine need not be negatived in an
. State, B Tex. Ap. 172, provision which is no
perjury need not be negatived in indictment;
'ex. Ap. 312, provisos to Sunday law need not
ment for violating tliat law.
42 Tex. 462-467 NOTES ON TEXAS EEPOHTa
ProTlsOT In Act Belas EssontUl Furts of desi^iip
atatute authoiiziug their omiasioD 'would be in violal
tioual rigbt to be exempt from ausweriag an; crim
upon indictment or infarm&tion.
Approved in Hodges v. State, 44 Toz. Cr. 446, 72
dictment under Penal Code, article 379, for perroitti
in houses enumerated in atatute, need not negative
ianiB V. State, 12 Tex. Ap. 399, 400, form of indie
prescribed by act uf ISSl is uDeonetitutionBl; Hun
12 Tei. Ap. 631, that part of statute which purports
of theft include embezzlement ia unconstitutional; i
74 Minn. 416, 77 N. W. 225, indictment that dispens.
ments of perjury" is uucoustitutional.
AT«nMDts of Facts peculiarly within defendant'^
quire no proof on pptt of the state.
Approved in Leatherwood v. State, 6 Tex. Ap. 24'
State, T Tex. Ap. 507, not necesaary to prove negi
in information for unlawfully carrying weapons.
Statute Forbidding Carrring of Weapona does not
tutional right to bear arms.
See note, 3 L. B. A. (n. a.) 169.
42 Tei. 462-464, TOUNO v. STATE.
Court Sboiild liave Snlimitted to Jury evidence of >
defendant felt his life was endangered by certain tlir
Approved in Leatherwood v. State, 6 Tex. Ap. 24
quired to prove negative averments in information
carrying weapons; they are matter of defense.
Statute Does not Prescrlba tbs Fatty from whoi
feared must be actually present before prepa ratio
defense.
Approved in Sbort t. State, 2S Tex. Ap. 386, 8 S. 'V
of threatening party not essential to bring accuse i
tion of statute relating to unlawfully carrying weap
42 Tex. 464-466, SMITH T. STATE.
Indictment must Negative Conditions under which
may be carried.
Approved in Woodward t. State, 5 Tex. Ap. 297,
accused had pistol on his person negatived that he
Leatherwood v. State, 6 Tei. Ap. 247, indictment pro
cocditioas allowing carrying of weapons; dissenti
Sncarley v. State, 40 Tex. Cr. 516, 52 S. W. 551, maj
indictment for violating occupation tax law, though .
Person Biding Sixteen Miles from home in wagon,
gone two or three days and to camp out, is a tiav
meaning of the law relating to carrying deadly weap
Distinguislied in Darby v. State, 23 Tex. Ap. 408, i
son going from home to county seat, intending to rel
ing day, is not a traveler within meaning of law relat
42 Tex. 466^67. WILUAMS T. STATE.
It Is not Necessary to His Defense that policema:
tlrrii' and plare charged he was in discharge of his
his defense is made out by proving he was such officei
OTES ON TEXAS EEP0BT8. iZ Tei. 467-488
i V. Falloek, 49 Mo. Ap. 447, deputy conetable
character as defense in prosecution foe carrying
:liough out of his towQBhip at time; State v.
I. 620, 110 S. W. 008, one who, while traveling,
of others, a weapon in rude and threatening
in. Stats. 1906, Bee. 1862; State t. Mosb;, 81
ible not amenable to law for exhibiting pistol
>T, whether in discharge of his dnty or not.
nSTON ETC. RT. v. HODDE.
urge to call attention to evidence about which
nbt, and instruct that snch facts prove delivery,
ility of defendant, where there was conflicting
indes V. Schiermann, 23 Tex. Civ. 345, 55 S. W.
s evidence besides testimony of certain witness
boundary, charge that testimony of sueb witness,
iry as claimed was erroneous; Missouri etc. By.
. Civ. 202, charge that jury riiould find, in view
that defendant railroad operated another road,
Cat of Carrier is not a delivery unless some reg-
er or custom makes it otherwise, or notice ia
or its authorized servants.
ifoakum v. Dryden (Tei. Civ.), 26 8. W. 313,
on being notified that car on sidetrack ii loaded,
oods, there is do delivery to the carrier.
kBBEN T. WAUJS.
lion of Snpreme Court rendered in a cause ean-
:Tidence before jury in subsequent trial of same
}aey t. State, 3 Tex. Ap. 432, 30 Am. Bep. 150,
ion of supreme court on former appeal cannot
t on later trial of same cause; Quest v. State,
S. W. 244, opinion of supreme court cannot be
subsequent trial of same cause; Press Pub. Co.
■d. 24T, 26 L. B. A. 531, it is error to permit
jury opinion of another judge in overruling de-
t Betwe«n Poitnets, after attachment has been
f one, cannot be admitted in evidence against
0 prove condition of accounts between partners.
>erg V. Steagall, 61 Tex. 3S4, attachment against
1 enjoined when it appears that prior claims of
iditors would absorb entire interest of such other
LLEB T. HATS.
12, 1866, cannot be to construed as to give an
he right to & survey of land after it had been
, and patented to auotbei, wbere alleged pre-
npon land until after patent issued.
■erry v. Coleman, 1 Posey U. C. 316, 318, loca-
ate on land occupied by pre-emplor invalid a»
—33
42 Tex. 488-497 NOTES ON TEXAS EEPOBTS.
FioeenUng for MuKUrons agaiuat surveyor eano
by claimant to land to be aurveyed until after pate
to another has been canceled by decree of cou
juriBdiction.
Approved in Calvert y. Ramsey, 59 Tei. 492,
againat coonty sarveyor to compel survey by one
patentee whoae patent was procured by fraud.
42 Tex. 486-493, HOUSE v. OOLLIHS.
Wban It la EstabUSbed that testator was not si
wag fraudulently made to show be had been, i
executrix, being sued to revive judgment by defauli
her testator's liability on alleged indorsement of n<
fault judgment was founded.
Approved in August Kern Barber Supply Co. v.
516, 74 S. W. 304, enforcement of judgment void o
upon which it was rendered may be enjoined wit
meiitoriouB defense; Masterson v. Ashcom, 54 Te:
action under a judgment, it must be shown tha
fraudulently obtained, and that defendant has go(
table defense; Bandall v. Collins, 52 Tex. 443, fa:
to show charge for service of citation on defends
to overturn presumption in favor of record reciti
Kempner v. Jordan, 7 Tei. Civ. 278, 26 S. W. 871, pe
been served and has good defense may impeach
MastersoD t. Ashcom, 54 Tex. 328, no opinion eipr>
of defendant by bill of equity to controvert by pari
upon him.
Miscellaneous, — Referred to as being before eonr'
In Randall v. Collins, 58 Tez. 232.
42 Tax. 494^96, DAVIS t. STATE.
It it Piopsr to Submit to Jnry plsa of former eon
of not guilty, with instractious to first tad upon
conviction, and proceed no further if evidence bus
jury fail to find on issue of former conviction, an
guilty, it it reversible error.
Approved in McCampbell v. State, 9 Tei. Ap. 127,
9 Tei. Ap. 272, and Smith v. State, 18 Tex. Ap. 33
rule; Wilson v. State, 45 Tex. 79, 23 Am. Rep. 604
be convicted on separate indictments where articl
time belonged to difTerent persons; White v. State,
where conviction in justice's court is pleaded in
grade of offense in county court, jury should return i
plea first; Grisham v. State, 19 Tez. Ap. 512, refuse
of former conviction to jury is error.
42 Tbx. 4S6-497, SY1.VESTEB t. STATE.
Oeneial Reputation of OcctipsjitB of Honso is adr
its character in a prosecution for keeping a disorder]
Approved in Cook v. State, 22 Tex. Ap. 527, 3
Sprague v. State (Tex. Cr.), 44 8. W. 838, both
Brown v. State. 2 Tex. Ap. 190, evidence established
of keeping disorderly bouse; Stone v. State, 22 Te
"W. 587, charge that proof of general reputation of I
to establish character of house is charge upon wei;
ON TEXAS BEPORTS, 42 Tex. 498-501
Ct. 100, 47 Am. St. Itep. 20, 25 8. W. 291,
esH maj be asked if he knows wbat a dis-
ini V. Anderion, 127 Cal. 35, 59 Pac. 207,
rove reputation of bouse bh house of ill-
in WiuBlow -7. State, 5 Ind. Ap. 315. 32
ig evidence auffieient to warrant conviction
.me; Lowe v. State, 4 Tei. Ap. 37, indictment
"for purpose of public pTostitution, and as
Qtet and vagabonds, which was then a dis-
3ee notes, SO Am. Rep. 209; 20 L. B. A. Oil.
By V, State, 11 Tex. Ap. 148, evidence of
bad sexual intercourse with daughters of
her house, insuffleient to sustain conviction
luse; Allen v. State, 15 Tex. Ap. 322, fact
of house of prostitution cannot be proved
latoey v. State, 30 Tex. Cr. £03, 45 S. W.
alooe insufficient to establish offense of
M Aailgiutlon Boom warrants
OOD ▼. STATE.
iBMB who have violated the mle, or who
ler the rule, is within discretion of court;
presumed to have been correctly exercised
State, 3 Tex. Ap. 312, attomeya should not
0 confer with witnesses who are under the
'ex. Ap. 673, witness nnder the rule, who
■e, was correctly allowed to testify respect-
ilan V. State, 7 Tex. Ap. 144, witness under
remain in court after he had testified, and
ittal, held not to be error; Piereon v. State,
ithin discretion of court to permit witnesses
t,al, notwithstanding they had been under
29 Tex. Ap. 200, 15 S. W. 600, where "role"
aproper to admit testimony of witness not
nd who had not heard testimony of other
30 Tex. Ap. 612, IS 8. W. 412, witness not
emitted to testify, though he heard testi-
who had been placed nnder the rule; Boat-
. 474, 20 8. W. 1102, though witoessea placed
ror not to permit assistant county attorney
1 not been placed under the rule; Phillips
Civ. 396, within discretion of court to re-
s, not placed under the rule, to testify.
ell V. State, 14 Tex. Ap. 16, court has no
to disclose to opposite side what bit testi-
Jooloy, 30 Tex. Civ, 681, 71 8. W. 37, revera-
to permit witness placed under rule to
who himself bad testified, bad told witneai
42 Tex. 501-513 NOTES ON TEXAS EEPOETS.
Tbs Cods AnthorliM the Introduction of WltUMSM a
before tbe argumeot of a caase U concluded, if it appea
necessary to a due administration of justice.
Approved in Treadway v. State, 1 Tei. Ap. 070, refasal
call of witness for purpose of laying foundation for imp
credit is error; Noftsinger v. State, 7 Tex. Ap. 321, n
allow proseciitiOD to introduce further testimony after
nouBCed that testimony was closed.
42 Tex. 601-SD4, SHEPHEBS t. STATE.
In Indictment for Burglary, it is proper to charge onli
with intent to commit theft, and the theft.
Approved in Black t. State, 18 Tex. Ap. 12T, in lad
burglary not necessary to allege entry was without ooDseo
Crawford v. State, 31 Tex, Cr, 56, 18 8. W. 767, under
charging "forgery" and "uttering forged iuetrument" tli
a conviction for only one of offenBea.
Distinguished in Howard t. State, 8 Tex. Ap. 448, 4
separate prosecutions for burglary and theft; Loakman '
Tex. C(. 564, 25 a. W. 23, where "burglary" and "theft"
separate indictments accused may be convicted of each.
Theft 1b Included as 0ns of Degresa of Burglary; burg
ing every species of housebreaking, and of theft from a I
Arguendo in Robertson v. State, 6 Tex. Ap. 682, quae
conviction for "burglary and theft" under one indie tmi
ranted. See note, 2 Am. St. Kep. 399.
Jury may Acquit of tlie Burglar; and convict of the I
cannot convict of the burglary and larceny as two distincl
Arguendo in Boberteon v. State, 6 Tex. Ap, 683, quae
conviction for "burglary and theft" under one indictmi
ranted.
42 Tex. 504-508, TATLOR T. STATE.
If Additional InstmctlonH ue Desired by jury, they
brought into court, and, after notice to defendant, shi
structcd only on points asked. Failure to notify defen
Approved in Qarza v. State, 3 Tex. Ap. 291, submitting
to jury, without their request, or coneent of accused, Ji
error; Lester v. Hays, 14 Tex. Civ. 646, 38 S. W. 53, revt
for judge, at request of jury, to enter jury-room and <
jury. See note, 17 L. R. A. (n. g.) 610.
Di.^^tiDguished in Benavides v. State, 31 Tex. Cr. 175,
Rep. 800, 20 S. W. 369, judge may, of bis own motion,
and give further instructions, if defendant ii present
right to be present.
42 Tex. 608-613, liEDBETTEB T. BUBNS.
Appeal on Bond in no more than costs and damagei
does not act as a supersedeas; plaintiff is authorized
such process as will authorize sheriff to take possession
sonal property of defendant. Such appea! suspends poi
Approved in Ridley v, Henderson, 43 Tei. 137, appeal
ing costs nnd damages will huspcnd eierution of judgi
ing sale of land; Uoor« y. Muse, 17 Tex. 216, clerk may b
NOTES ON TEXAS BEPOBTS. 42 Tm. B13-520
enforee jadgment where &ppeftl bond not auffieient
nanee of writ of superaedeaB; WillisraB v. Pouns,
inction in force when final judgment rendered,
I is prosecuted, lemains in force while judgment
ereeded by appeal.
T V. Westin, 66 Tex. Z13, 18 S. W. 513, bond for
does not deprive one of right to process authoriz-
e of judgment debtor's property.
mdlug AppMl on bond for coBta and damages of
;>ower to sell.
-ns V. Ledbetter, 54 Tex. 3T9, one who buys under
g appeal acquires no title; Arnold v, Leatherwood,
sale of land for costs pending appeal is void.
X Damages have been alleged or proven, question
ages is fox most part left to jury; only in cases
: clearly in excess of verdict will new trials be
dmoDt etc. Ins. Co. v. Fitzgerald, 1 Tex. Ap. Civ.
three hundred dollars damages for illegally for-
lee policy sustained.
hBIFFIN ▼. WAKEI.ee.
strict Court awarding peremptory mandsinus for
itiO to office is superseded by an appeal to supreme
urchill T. Martin, 65 Tex. 3GS, reaffirming rule;
48 Tex. 145, injunction in force when final juilg-
jta which appeal is prosecuted, remains in force
ipended or supereeded by appeal.
dged by tli« Court is secured to the plaintiff by
liken v. City Council, 54 Tex. 391, judgment in ease
office may be enforced by mandamus.
UOBE T. GABBETT.
to Sapmne Court in cases appealed to district
XI.EN V. STATE.
dmlt as ETldence the mark and brand of a party,
y proof that same is recorded.
Fisher V. State, 4 Tex. Ap. 1S3, and Hutto v.
47, unrecorded brand admisHible to aid in identi-
inimal, title being eBtabltshed by other testimony.
It is a Hired Hand, acting under orders of an.
en cattle being found in herd which defendant is
; to sustain verdict of guilty in prosecution for
leys V. State, 22 Tex. Ap. 414, 3 3. W. 573, error to
that if defendant was acting under direction of
knowledge of criminal intent of employer, jury
lis V. State, 24 Tex. Ap. 590, 6 S. W. S.-iB, error to
:hat if defendant was requested to assist in brand-
42 Tei. 520-578 NOTES ON TEXAS EBPORTa
iog stolen cattle, without preTiouB aEreemant or partii
oCTense, iaij should acquit; State v. Beece, 27 W. Va. 3S0,
of stolen goods not prima facie evideoee of guilt.
Distinguished in Taylor v. State, 5 Tei. Ap. 531, instn
if employes acted for employer, knowing latter inteade
cattle, employee was guilty, is correct.
42 Tax. &20-fi23, LOTS T. KBHDEBSOK.
Uode of proceeding Against Heirs whose names are t
legulatsd by act of November Q, 1S66, wbich providai
suits by publication.
Approved in Byrnes t. Sampson, 74 Tex. 83, 11 S. W.
ute of 1866, autborizing citation of unknown heirs by publi
repealed by "Public Printing Law" of 1870.
Distinguished in Kilmer v. Brown, 28 Tei. Civ. 424, 67 I
where petition Sled in 185S showed cauia of action againi
his unknown heirs could be cited as unknown heirs un
1848, though ancestor had never been party to suit.
MiscellancoDS, — Referred to for history of case in UcC
Henderson, 50 Tex. 611.
42 Tex. 623-629, WSIGHT T. BEODES.
Judgment Operates as Zalen on all lands of judgment debt
in county where judgment is recorded, for four years aft
registry, and bas priority over mortgage lien subsequently
Approved in Jackson t. Butler, 47 Tex. 428, recorded j
lien for four years on lands of defendant, irrespective of
of diligence in isauing execution, etc.
42 Tex. 629-^36, BEED T. X-UCIAS.
Recaption of Personal Property, sold without authority
and without taking bill of sale, though recaption made un
warrant based on insufficient affidavit, will afford purchase
See notes, IS Am. Dec. 549; 60 Am. Dee. 296; 101 An
333.
Unlawful Taking or Purchase of Personal Fropertr
affect right of true owner, when he has done nothing to
destroy his right.
Approved in Russell v. Oppenheimer, 1 Tex. Ap. CiT. 1
third party, without knowledge or consent of owner, does
owner's title.
42 Tex. e66-«78, BOT8TOK T. QStFTXU.
Act of Jnl7 23, 1670 (Paschal's Digest, 6143), provides
of district criminal court of Galveston and Harris counti
appointed by governor at intervals of four years from i
pointment of first appointment; appointment to vacancy
Cited in Ridley v. Henderson, 43 Tex. 138, to the point
of court has right of appeal from judgment of court.
Distinguished in Hamilton v. Stats, 40 Tex. Cr. 467, 61
judge appointed to office is a de jura officer until suceessoi
and bas qualified.
iN TEXAS BEPOKTS. 42 Tei. 578-396
STATE.
, Under Lat Against Osxrylng DeAdlf
bile buntlQg away from his own premiBea.
State, 1 Tax. Ap. 620, it is no defense
purpose ol killing a beef; Strahan v.
[4, carrying conrealed weapon, regardless
te note, 25 Am. Bep. 562.
r. STATE.
Tibntlon of Prizes by chance is a lottery.
State, 2 Tex. Ap. 612, 28 Am. Rep. 441,
evice in nature of lottery; Prendergast
i7 S. W. 851, elot machine, with money
V. Elliott, 74 Mich. 268, 16 Am. St. Bep.
. 403, "policy" held to be a lottery; State
I Am. Rep. 534, distribution of prizes to
. a lottery. See notee, 16 Am. St. Bep. 42,
receives something does not. render dis-
gual value to ticket -holders any less a
. drew blanks when not drawing prizes,
ding Co. V. Vaughn, 18 Okl. 26, 90 Pac.
3, holding fraudulent contract promising
rhich are cot expected to be earned from
I promises to pay are dependent for per-
g of investors for means to pay others;
241, 45 S. W. 571, "wheel of fortune"
on, 16 Nev. 142, distribution of gifts to
ent is a lottery. See notes, 16 Am. St.
Against IiOtterlei renders nugatory act
;nrded as gift enterprise and imposing
such business.
ertoD, 16 Nev. 150, act to aid Nevada
mitting it to hold raffles, is unconstitu-
601.
e Massey, 49 Tex. Or. 85, 66, 92 B. W.
. 791, holding void act of 1905, prohibit-
r sale of liquor in local option territory.
I. T. STATE.
Lttflst of Juiy, who disagree as to his
id to repeat his testimony upon point in
testifying; it is error to allow re-eiam-
V. State, 7 Tez. Ap. 117, witness re-
lonld not be allowed to make statements
timoQy.
ii charged and evidence is that they
Btomed range, article 2410b of code, in-
theft, should be charged by court, and
should be given, said clause imposing
:attle from their range where there ia
42 Tex. 596-604 NOTES ON TEXAS BEPORTS.
521)
Approved in Marahall y. State, 4 Tex. Ap. S52, driving another*!
cattle from its accnstomed range will sustain i^onviction for theft;
Turner v. State, 7 Tex. Ap. 600, court erred in not charging Ian
of driving stock from its acruatomed range under circumstance!
not constituting theft; Foster v. State, 21 Tex. Ap. 86, 17 S. W. 550
charge that defendant, indicted for theft of animal, may be con.
victed of fraudulently driving stock from its a'^customed range, it
correct; Powell v. State, 7 Tex. Ap. 469, indictment for theft oi
cattle, which fails to allege value of animal, will not sustain con
victioQ of "willfully driving animal out of its aecustomed rantte";
dissenting Opinion in Brown v. State, 15 Tex. Ap. 5S6, conviction
for receiving stolen property cannot be had under indictment foi
theft.
Distinguished in Hutto v. State, 7 Tex. Ap. 49, charge need not
submit minor dsgree of offense alleged, unless there is evidence re-
quiring it.
Wbenever Than Is Beuon to Appreltand that injury may have
resulted to defendant, especially in case of felony, from failure to
observe directions given court by the legislature, the judgment
should be reversed.
Approved in W 11 kins v. State, 15 Tex. Ap. 428, failare to read in-
dictment ,to jury is reversible error; Murray v. State, 21 Tex. Ap.
477, 1 S. W. 524, not reversible error for court to fail to conform
to articles relating to organization of trial jury in capital felony;
Holsey v. State, 24 Tex. Ap. 41, 5 S. W. S24, failure of prosecution
to state accusation against defendant and what be expected to
prove, not reversible error.
Distinguished in Uurrsy v. State (Tex. Ap.), 3 S. W. 103, articles
618, 619, 620 and 621, Code of Criminal Procedure, regarding jurors
are directory and no injury resulting from their non observance,
reversal will not lie.
42 Tex. 696-601, EDMONSON t. BLGSSINa.
Deed Ezecntad by Husband and Wif« for express purpose of
abaodonment of homestead rights would be conclusive against heirs
of grantors claiming, against purchaser at administrator's sale, the
right of the husband for whose use original deed was made and to
whose administrator grantee had conveyed homestead, unless prop-
erty had again become homestead.
Approved in Blessing v. Edmondson, 49 Tex. 337, reafBrming rule;
Crockett v. Templeton, 65 Tex. 136, until husband and wife aban-
don part of homestead occupied by wife, husband £an acquire no
other homestead.
42 Tex. 601-404, OI£MENTS v. OBAWFOBD.
Article IS, Section 27, of state constitution, refers to personi
who were both precluded from intermarriage with each other and
from marriage with anyone else. Its object was to legitimate off-
spring of those whose bondage had disabled them from legal mar-
riage until death of one of them, or until adoption of constitution.
Approved in Oldham v. Mclver, 49 Tex. 564, marriage of white
man and mulatto woman not presumed from cohabitation; Frashel
T. State, 3 Tex. Ap. 278, 30 Am. Bep. 141, statute which legalized
marital relations of emancipated rare among themselves did not afTect
article of Penal Code making it felony for white person to marry
TES ON TEXAS REPORTS. 42 Tei. 605-612
Imlnal Caaas Tequirlng statntorf form of oath
jury does not obtain in civil eases, and it is
and judgment, to object to formality of oath
30 ▼. STATE.
'az Iaws did not reliaquish the right of atate
iubIj levied.
on T. Galveston Co., 1 Ter. Ap. Ci¥. 438, act
J act of 1876, in bo far as remedies for collec-
bj act of- ISTl were provided for; Smith v.
Pae. 64S, repeal of tax law does not destroy
if taxes levied before such repeal.
al and Ex«cntlT« Omcen under provisional
superseded until organization of atate gov-
niel V. Hutcheson, 4 Tex. Civ. 246, 22 S. W.
red \yj judge of eounty court Febniar]', ISTO)
in Daniel v. Hutcheson, 4 Tex. Civ.' Ap. 249,
ty holding probate sale ordered by judge of
, 1870, void.
M Int«ndad to he Sp«ciflc Oharg« upon land
to be enforced by proceedings prescribed by
ondemnation and sale, and not by sale under
▼. State, 16 Tex. 104, failure of sheriff to car-
personal property of delinquent taxpayer is
roeeedings to collect tax; State v. Baker, 49
town should be separately assessed; Edmon-
Tex. 161, personal judgment declaring a lien
gregate taxes due on all is erroneous; Jondou
157, lien on property for taxes attaches not to
generally, but to each tract for taxes asseesed
Jacksonville, 37 Fla. 3S1, SO So. 538, munlci-
a single tax lien on three different lots of land
nent made by city.
illas etc. Trust Co. v. Oak aiff, 8 Tax. Civ.
issessment made in manner approved by tax-
several lots assessed together.
T. San Antonio, 19 Tex. Civ. 100, 50 S. W.
delinquent taxpayer, except homestead, liable
iquent.
exists for nonpayment of ad valorem property
t has been made as provided by law.
irt V. Houston, 45 Tex. 324, to maintain suit
of statutory authority, an assessment mnst be
in, 47 Tex. 86, one of eBsentials of valid tax
by proper officer; Clegg ▼. Galveston, 1 Tex.
ly be collected by suit, as well as in manner
People's Nat, Bank v. Ennia (Tex. Civ.), 50 S.
reates no persona] liability against the tax-
I (Tex. Civ.), 54 S. W. 33, suit for taxes not
42 Tex. 612-627 KOTES ON TEXAS
maintaiDable without proof of a legal
94 Tei. 235, 69 S. W. E42, there can b
eessment it void for uncoTtainty of desi
Oollectoi of Taxes, on failure of pa;
parties in default to comptroller as i
the default and authorizes conipt roller
Approved in State Tax Law Cases, 54
right of intervention of judiciary in ta:
Facta to be Estebllslied by delinqnen
evidence.
Approved in Clegg v. GalveBton, 1 1
delinquent taxpayers are not required to
list.
42 Tex. 612-627, BOUKDTBEE T. OAJ
Oeneral Authority In Oliafter to <
■treet, limited by proviBo that not i
within certain limits shall be paved ol
tends to the right of the city to imprc
and to impose two-tbirds of expense up
Approved in Allen v. Galveston, 51 1
on estimate of coat of improvement i
seesed not valid; Loveoberg v, Galve:
W. 1D26, owner of property is persona
ing street on which his property abuts,
Anthority for Making AsMHinBiit
derivable from, and an exercise of, th
of eminent domain.
Seaffirmed in Adama ▼. Fisher, 63 T(
Oonstltatioual PtotIsIou having ret
revenue, that tbey shall be equal an
plicable to assessments for local impro
be maintained by city, for assessment :
adjoining lot owner, of one-third of i
Approved in Allen v. Galveston, 51 '
veston not authorized, from October, 1
for unj^aid taxes property assessed f
was proper method; Taylor v. Boyd, 61
for local improvements not subject tc
uniformity; Wood v. Galveston, 76 Ti
assessment lien may be enforced in di
87 Tel. 37, 27 S. W. 90. city ordinan
not a special law; Higgios v. Bordages.
774, 31 8. W. 63, constitution eiempti
for improvementB of sidewalk ordered
Ala. 467, 7 So. 388, 8 L. H. A. 368, aase:
are not such taxes as shall be asaesBed
of property.
Distinguished in Harris Co. v. Boyd,
authorities cannot bind county for ti
in front of county courthouae; Bordi
49, 19 8. W. 448, homestead subject t(
of sidewalk ordered by city.
Bill of Exceptions cannot Snpply sta
Approved in Cates v. McClure, 27
following rule; Colley v. Wood, 32 1
ON TEXAS EEP0BT8. 48 Tex. 636-661
JDBideT aulDcieiiej of evidence in absence
hough charge Bumt up judge's conclusions
itemont of Futa tnaj be made to serre
eptiona.
'. Herroo, 99 Tei. 65, 68, 87 8. W. 327,
t deed offered in evidence, preierved in
it by sepftrats bill of exceptions, may be
to, as deciding nearly all iesnea, in Lufkin
lAITEINa EIO. 00. ▼. STATE,
cnpatiaii Taxes, no formal assetsment was
paid before tbe party liable to such tax
ad, it was the duty of the officer charged
to enforce its payment.
. Galveston, 42 Tei. 658.
▼e PrOTlsion for collection of occupation
: collect by suit.
lalveston, 1 Tex. Ap. Civ. 27, taxes may
well as in manner provided by statute.
ESS.
a that "taxation shall be equal and uni-
i" is Dot violated by act impoeiug giad-
persons dealing in stocks or bills of ex-
. Qalveston, 42 Tex. 659, reaffirming rule;
State, 5S Tex. 319, graduated occupation
!8 is valid; Albrecht v. State, 8 Tex. Ap.
Pahey v. State, 27 Tex. Ap. 160, 161, 11
7. 110, graduated occupation tax on retail
[ parte Williams, 31 Tex, Cr. 274, 30 S.
lawyers may be fined for refusing to pay
State (Tex. Civ.), 6S B. W. 1034, occupa-
DS is valid; Amador Co. v. Kennedy, 70 Cal.
B fixing lower license for business of sell-
1 than in village, tonn, or city, is valid;
V. 270, 28 Am. Eep. 797, act impoeiog tax
» notes, 129 Am. St. Sep. 255; 15 L. R. A.
), 349; 30 L. B. A. 419; 6 L. B. A. 509.
ra V. GAIiVESTON.
Ting Validity of Tax, which may be de-
LB couEiEtently with public policy before
i especially where rights of a large num-
ved, and great number of suits may be
loss and damage prevented, courts may
nction to prevent collection of such tar.
Eldridge, 1 Tex. Ap. Civ. 550, reaffirming
ove, 61 Tex. 320, district court has juris-
DJunctioD against issuance of bonds by
irt for courthouse; Oalvestou etc. By. v.
369, injunction the proper remedy to pre-
to which petition showed perfect defense;
42 Tex. 641-6G1 NOTES ON TEXAS REPOBTS.
524
Morris v. Cummings, 91 Tex. 621, 45 S. W. 385, collection of illegal
poll tax may be restrained; Kellogg v. School District, 13 Okl. 304,
74 Pac. 116, upholding right of taxpayer to sue to restrain school
district from contracting for schoolhouse at unauthorized place and
contracting liabilities therefor which district taxpayers would be
required to pay; Preston v. Finley, 72 Fed. 854, injunction will
not issue to restrain collection of tax unless tax is shown to be
invalid; Carman v. Woodruff, 10 Or. 135, taxpayer has right to main-
tain suit to annul fraudulent disposition of county funds. See notes,
69 Am. Dec. 201, 205; 22 L. E. A. 704.
Distinguished in George v. Dean, 47 Tex. 84, invalidity of assess-
ment-roll or process not ground for injunction; Red v. Johnson, 53
Tex. 288, claim that tax sale would cast cloud on title of plaintiff
not ground for injunction.
Courts will not DiBregard an act of the legislature because journals
of one or both houses fail to show its passage in strict conformity
to all directions in constitution, it being in other respects perfect and
unobjectionable.
Approved in Williams v. Taylor, 83 Tex. 673, 19 S. W. 157, when
bill is signed by presiding officer of each house and approved by
governor it is conclusive of its passage according to the constitu-
tion; Usener v. State, 8 Tex. Ap. 182, Sunday law declared consti-
tutional, though journals of legislature fail to show it was passed
in conformity to constitutional provisions; Donaldson v. State, 15
Tex. Ap. 28, burden of proving legality of ''local option" law is upon
person who invokes it; Baldwin v. State, 21 Tex. Ap. 593, 3 S. W.
110, quaere, whether courts can inquire into authority of special
session of legislature to pass statute valid on its face; Ex parte
Tipton, 28 Tex. Ap. 443, 13 S. W. 611, 8 L. B. A. 326, act providing
for inspection of oils held valid, on ground court cannot go behind
authenticated statute itself; McLane v. Paschal, 8 Tex. Civ. 401,
28 S. W. 713, Revised Civil Statutes of Texas of 1879 declared valid;
Chicot Co. V. Davies, 40 Ark. 214, where journal is silent court will
presume suspension of rule, to uphold act; Glidewell v. Martin, 51
Ark. 567, 11 S. W. 884, court will presume readings of bill were in
accordance with law; State v. Corbett, 61 Ark. 238, 32 S. W. 689,
failure to take "yea" and "no" vote on rescission of amendment does
not invalidate bill; In re Duncan, 139 U. S. 459, 11 Sup. Ct. Rep.
576, 35 L. 224, Penal Code and Code of Criminal Procedure of Texas
held valid; statute only certified is presumed to have been duly
passed; dissenting opinion in Cohn v. Kingsley, 5 Idaho, 454, 49 Pac.
999, majority holding journals of both houses must affirmatively
show that constitutional provision requiring three readings of bill
on three separate days was complied with. See notes, 51 Am. Dec.
620; 85 Am. Dec. 359; 23 L. R. A. 347; 11 L. R. A. 491.
Denied in Hunt v. State, 22 Tex. Ap. 403, 3 S. W. 237, act pre-
scribing penalty for keeping gaming bank is unconstitutional, be-
cause journals of senate fail to disclose its proper signing by pre-
siding officer.
Powers of Municipal Corporation may be enlarged, contracted, or
destroyed at will of the legislature.
Approved in Qraham v. Greenville, 67 Tex. 65, 2 S. W. 743, legis-
lature may annex or authorize annexation of territory contiguous
to incorporated town, without consent of persons residing either in
corporation or annexed territory; Wilder v. McConnell, 91 Tex. 604,
OTES ON TEXAS REPORTS. 42 Tex. 641-661
lature has power to enact Ian ander which coT'
are eTtended.
la not Nec«8BU7 to Tslidity of city charter en-
; if Buch assent were oeeesiHry the arganization
aent under the charter would evidence euch as-
rd V. Stat«, 72 Tez. 184, 10 S. W. 402, failure to
nicipality does not disaolve the corporation.
nue cannot Delegate its general legislative power,
mnicipal oorporations local legislative power ad-
ises of their creation.
y V. Rockdale, 62 Tex. 454, legislature has power
»lity to levy poll taj.
are not prohibited by constitation.
Y V. Galveston Co., 45 Tex. 29S, oeeupation tax en
I is valid; Pahey v. State, 27 Tex. Ap. 181, 11
. S. W. 110, occupation tax on retail liquor dealer
obintoD, 12 Nev. 270, 28 Am. Rep. 797, occupation
valid.
rranted by OousUtDtlon, when creating municipal
to municipal tribunals,
ris V. Stewart, »1 Tex. 139, 41 8. W. 654, legia-
eoDfer upon city recorder jurisdiction of justice
Dffenses committed against state lairsi Leach v.
:52, 36 S. W. 473, legislature cannot confer upon
iidiction over violationn of state laws within city
!g, 38 Tex. Cr. 584, 41 S. W, 295, 40 L. R. A. 212,
e no jurisdictioQ in violations of law against keep-
hich is a state statute; Ex parte Coamba, 38 Tex.
9, city court haa no jurisdiction to try offense of
louse; and also in concurring opinion of Hender-
Coombe, 38 Tex. Cr. B70, 47 S. W. 104, majority
preceding citation; Ex parte Levine, 46 Tex. Cr.
arguendo.
ace Impoftng Dlaeilmiiiatlng occupation taxea is
ive act would be so.
;. A. 340, 343.
to Whether Statutes were pawed by Ugistature
constitution will not be submitted to jury.
\.. 611.
kUona an Oreatnree of State made for specific
within prescribed limit powers conferred upon
-n V. City of Galveston, 97 Tex. 14, 75 S. W. 495,
charter of 1901, conferring on commission erg, ms-
oiuted by governor, powers usually committed to
NOTES
■I THB
AS EEPOETS.
&SES IN 43 TEXAS.
lAUS T. DAVmSON.
loa for more tban thirty yean, for grantiog a toll-
iving bees by public enBctoient, claim t<t lucb
eatabiiBbed by uBags for thirty years alone, where
of record evidencing grant.
T V. BrownsoD, 50 Tex. 594, grant cannot be pre-
in violation of law; Laredo v. Martin, 52 Tex.
icbise to ferry by prescription where used for
r a Hnnlcivallty cannot be delegated, bargained
Tor private purposes.
ibam V. Brenham Water Co., 67 Tex. 553, 4 S.
Duopoly by city to corporation to operate water-
■ etc. Ey. V. Biordan (Tei. CIt.), 22 8. W. 522,
delegate a committee of it« members to decide
■hall be maintained.
qnlro OorporfttloiiB in all cases to show a plain
r the authority tbey assume to exercise.
feston y. Loonie, 54 Tex. 525, reaffirming rule;
B, 154 Ind. 495, 77 Am. St. Eep. 507, 57 N. E. 125,
wer to construct lawns not inferred from power
ham T. Oerman etc. Bank, 144 U. S. 182, 12 Sup.
394, power of municipal corporation to borrow
uly stated in charter; Greeley v. Hamman, 12
courts will not take judicial notice of city ordi-
nms, 40 Fls. 442, 25 So. 2S2, anthority to impose
strictly construed. See notes, 34 Am. Dec. 631;
ler CoTer of Ezerclatug Ita Unnldpal AuUiortt]r
cannot embark the city in a private partnersliip
, anch as partnership in building of a toll-bridgo.
a V. Austin (Tex. Civ.), 21 S. W. 380, city can-
a where it« main purpose is to lease tbe power
e manufacturing enterprises, altliough ostensibly
Dg purposes, ^ee note, 58 L. R. A. 150,
(527)
43 Tex. 41-73 NOTES ON TEXAS EEP0ET8. S28
Oonrt cannot Assome Uaterlal Facts Proven, in charge to jury,
which it la iacumbent on partj clsiming benefit of tbem to prove.
Approved in Parker y. Stroud, 39 Tex. Cir. 4S0, 87 8. W, 735,
holding evidence conflicting in«uit for damagea for failure to comply
with contract and not to authorize peremptory instruction to find
for full amount claimed; Briseoo v. InteniBtional etc. B. B. Co.
(Tex, Civ.), 81 S. W. 580, in action to cancel judgment on ground
that action in which rendered commenced by attorney witbout au-
thority, charge that for attorney to have been authorized agreement
need not have been written waa erroneous; EUis v. Rosenberg (Tex.
Civ.), 29 3. W. 520, where issue of fraud is clearly raised, it is error
to direct a verdict; Choate v. San Antonio etc. By., 90 Tex. 86, 38
8. W. 249, direction by court to find foi plaintiff where evidence
conflicting error.
Riparian Owner ma; 1m CH-no Preferencs wben applying for toll-
bridge franchise, but riparian ownership does not confer jurisdic-
See note, 58 L. B. A. 158.
A Citizen Property Owner injured by maintenance of an illegal
toll-bridge, abutting on public highway, may sue for equitable relief
from the nuie'ance.
Approved in Corporation of Seguiu t. Ireland, 58 Tex. 185, in snit
by abutting taxpayer for relief against erection of market house and
calaboose in public square; Nalle v. Austin (Tex. Civ.), 21 S. W. 37S,
taxpayer may maintain suit to enjoin issue Of municipal bonds or
collection of taxes upon a proper showing.
Distinguidied in San Antonio t. Strunberg, 70 Tex. 369, 7 8. W.
755, suit to restrain erection of public building on public squ&re,
where no special damages are shown, ia not maintainable.
43 Tex. 41-73, WILLIS ▼. OWEN.
The Rule of Stare Declsla applies when a deeiaioQ bas become
recognized law of property, and conflicting demands adjusted and
contracts made on faith of it, but not to construction and interpreta-
tion of organic law, structure of government, and limitation* upon
legislative and executive power.
Approved In State v. Lewi«, 69 Ohio St. 209, 69 N. E. 134, follow-
ing rule; Ex parte Eoser, SO Cal. 204, doctrane of stare decisis cannot
prevent inquiry as to constitutionality of sections of Penal Code;
Robinson v. Scbenck, 102 Ind. 320, 1 N. E. 706, State v. Kolsem, 130
Ind. 450, 29 N. E. 600, 14 L. R. A. 566, and State v. Sinks, 42 Ohio
St. 357, rule of stare decisis applies where decision iiaa become rule
of property; Burks v. Hinton, 77 Va. 25, and Mountain Grove Bank v.
Douglas Co., 146 Mo. 53, 47 S. W. 946, constitutional questiona are
always open to examination; State v. Aiken, 42 S. C. 228, 20 S. E.
223, 26 L, R. A. 345, former decision does not prevent court from
derlaring "dispensary act" unconstitutional; dissenting opinion in
■VValiing v, Bown, 9 Idaho, 751, 76 Pac. 322, majority following former
decisioDB upholding validity of "Two Mile Limit Law." See note,
27 Am. Dec. 632.
Difltinguished in Lowell v. Ball, 5S Tex. 566, that no appeal lies
from judgment of distinct court, rendered in accordance with man-
date of supreme court.
Tbe Constitution Ftovldes for Raising Snch Sum by Taxation in
the several school districts as will be neces!''Bry for school purposes.
ON TEXAS BEPOBTa. 43 Tex. 76-87
and, 44 Tex. 145, abowing adjudication on
Swan V. State, 48 Ter. 132, declaring tai
anconstitutioiial; Higgins t. Bordages, S8
: levy of 1872 constitutional.
B Ifffvled the school tax by fixing the maxi-
ze tbe district boards of school directors
)llected in Iheir district.
Llano Co., 9 Tax. Civ. 206, 28 S. W. S71,
:r the Btatute, may fix county treasurer's
. See note, 15 L. S. A. (n. a.) 66.
fo Nnmber of Persona are involved, or a,
avoided, & court of equity may interpose
1 tax at well before as after collection, if
ined by the court.
Dean, 47 Tex. 84, and Ex parte Mato, 19
kttona of Power are not controlled by gen-
t of constitution.
unty V. Butler, 3S Tex. Civ. 425, 80 8. W.
97 not in conflict with Const., art. 5, sec.
for SnbdlTldlng Stata into school district!
indereon, M Tex. Cr. 378, 81 8. W. 975,
ir pas^d by legislature authorizing gover-
mmtsEioners for city,
[kte Poweta nnlew authorized to do bo by
y. Webb, 33 Tex. Civ. 332. 76 8. W. 770.
though it is invalid as to clause forbidding
le not a physician.
▼. HcNEIXT.
TOgatorloa cannot one the depositions.
[iller, 82 Tex. 285, 17 B. W. 1056, defendant
ire he fails to cross them,
U> V. TVKMEB.
ot be Devested of ber separate estate In
executed in terms of statute, with privy
there is fraud on ber part, which other
amel, 62 Tex. Ill, reaffirming rule; Cauble
'7 Am. St. Rep. 871, 70 S. W. 739, married
separate property by parol gift followed
] from claiming title by consent to con-
donor who held record title; Texas Land
v.), 8T S. W. 175, wife cannot be deprived
udulent acts of hut'band in which she did
tfaxey, 43 Tex. 196, refusing to set aside
fhere fraud on her part; T. & P. Ry. v.
Dg aside conveyance where no privy ex-
43 Tex. 88-92
NOTES ON TEXAS REPORTS.
530
amination of married woman; Johnson v. Bryan, 62 Tex. 625, setting
aside deed not explained to wife; Woolridge v. Hancock, 70 Tex. 21,
6 8. W. 821, McLaren v. Jones, 89 Tex. 135, 33 S. W. 851, Stephenson
V. Marsalis, 11 Tex. Civ. 169, 33 S. W. 386, and Shooksberry v. Swann,
12 Tex. Civ. 74, 34 S. W. 372, all holding sale of wife's slaves by
deed of herself and husband valid; Steed v. Petty, 65 Tex. 496, set-
ting aside deed where no fraud on wife's part; Blagge v. Moore, 6
Tex. Civ. 364, 23 S. W. 472, setting aside deed where not explaine«l
to wife; McKinney v. Matthews (Tex. Sup.), 6 S. W. 797, she cannot
avail herself of defective acknowledgment where the deed released
to her other land from encumbrance of a trust deed; McFalls v. Brown
(Tex. Civ.), 36 S. W. 1110, in such case s?he need not refund purchase
money unless it was applied to her use or benefit; Robert v. Ezell, 11
Tex. Civ. 177, 178, 32 S. W. 363, refusing to enforce verbal gift of
married woman where no fraud; Huss v. Wells, 17 Tex. Oiv. 197, 44
S. W. 34, married woman not estopped from recovery of homestead
under void deed where no other homeS'tead acquired; Miller v. Texas
etc. By., 132 U. S. 690, 10 Sup. Ct. Rep. 215, 33 L. 501, setting aside
deed where not explained to wife. See notes, 58 Am. Dec. 117; 58
Am. Dec. 124.
Fact Tliat Alarried Woman Accepts Fmlts of Sale of Land with-
out disaffirmance, with full knowledge, neither amounts to ratifica-
tion as estoppel, nor raises an equity against her right to recover.
Approved in Owen v. New York etc. Land Co., 11 Tex. Civ. 294,
32 S. W. 1060, reaffirming rule; Stone v. Sledge (Tex. Civ.), 24 S.
W. 699, acceptance of fruits of sale does not preclude wife from
claiming the land because of defect in her acknowledgment; Grand-
jean V. San Antonio (Tex. Civ.), 38 S. W. 841, to be estopped, wife
must be guilty of some further fraud or act of concealment equiv-
alent.
43 Tez. 88-90, SKABO ▼. STATE.
If Application for Continuance is Proper at Time Made and suffi-
cient cause shown, continuance should be granted without waiting
result of a trial on other evidence.
Approved in Brown v. State, 3 Tex. Ap. 310, and Peeler v. State,
2 Tex. Ap. 456, error to refuse first continuance where requirements
of srtatute complied with.
An Admission Tliat Absent Witness Would Swear to Certain Facts
stated in affidavit would not defeat the application for continuance.
Approved in Hackett v. State, 13 Tex. Ap. 412, rule applies only
where party legally entitled to continuance.
43 Tez. 91-92, NEIL ▼. STATE.
Under Act of August 13, 1870, justices of the peace have no juris-
diction to try one charged with aggravated assault, and appeal from
judgment, where jurisdiction improperly assumed, cannot invest dis-
trict court with jurisdiction.
Approved in Wads worth v. Chick, 55 Tex. 243, dismissing appeal
from judgment of court without jurisdiction; Cotulla v. Ooggan, 77
Tex. 34, 13 S. W^ 743, Griffin v. Brown, 1 Tex. Ap. Civ. 619, and
Timmins v. Bonner, 58 Tex. 562, appellate court can have no juris-
diction where lower court had none; Schwartz v. Frees (Tex. Civ.),
31 S. W. 214, where justice has no jurisdiction, appeal will not give
it to district court; Hall v. McGill (Tex. Civ.), 38 S. W. 828, where
justice has no jurisdiction of amount set up in defendant's cross-
)N TEXAS BEPOBTS. 43 Tex. 93-IOT
t will not giv6 appellate eoort jurisdie-
7. 8TATB.
r to Jail, thoQgh JQitifled in unng force
piiltf of an offeoae if be strikes him ez-
State, 2 Tez. Ap. 21, Beaverts t. State,
LSI T. State, 135 Ind. 3M, 34 N. E. 970,
Aasanlt With Deadly Weapon wae Proven,
leeording to manner used, shoold be left
ite, 9 Tex. Ap. 36, Hnot v. SUte, ft Tez.
e, BO Pla. 762, 51 Am. Eep. 629, all ro-
State, 1 Tez. Ap. 642, reversing judg-
retamed deadly by court; McReynolda v.
uning judgment nhere weapon proven a
.e, IS Tez. Ap. 351, a knife is not per ee
V. State, 30 Tei. Ap. 381, 17 8. W. 939,
»iaitol not proven deadly weapon,
Ukely to Frodnce Death or great bodily
lucb depends on it> size and manner of its
tate, 37 Tez. Cr. 159, 38 8. W. 1015, re-
iggie, 82 Miss. 415, 34 So. 147, applying
ite, 3 Tez. Ap. 15, a eliair is not oeces-
: depends upon its size and manner of
Tex. Ap. 330, sustaining instruction mih-
Voited States v. Beeves, 38 Fed. 407,
e. See note, 21 L. B. A. (d. a.) 497, 501.
, STATE.
d FropOBltloa of Imw and not aenuming
s not a charge upon weight of evidence.
ate, 1 Tez. Ap. 25, Buataining charge not
TATE.
w Oeneral, and Anotbor Special, Fnperty
may allege ownership in eitlier.
State, 1 Tex. Ap. 296, Bagley v. State,
State, 4 Tex, Ap. 331, Jinka v. State, 8
, 5 Tez. Ap. 253, Hotb v. State, 10 Tex.
9, 11 Tex. Ap. 258, all reaffirming rule;
p. 119, 5 S, W. 832, actual care, control,
ty sufficient to support allegation of pos-
eft. See note, 21 L. B. A. (n. s.) 315.
On* Oonnty and carried into another, the
ave been in either,
ate, 15 Tez. Ap. 485, reafBrming rule.
STATE.
TO JndgeB of tbe rMta in criminal caaen.
State, 1 Tex. Ap. 584, reversing judgment
I assumed facts as proven. See note, 72
43 Tex. 108-121 NOTES ON TEXAS BEPOETS.
532
43 Tex. 108-113, PIGO ▼. STATE.
It is not Consent to Taking for Owner to hire detective, who for
purpose of detection joins defendant in criminal act designed hj de-
fendant and carried into execution by actual theft.
Approved in Bobinson v. State, 34 Tex. Or. 75, 53 Am. ^t. Bep.
701, 29 S. W. 40, reaffirming rule; Crowd^r v. State, 50 Tex. Cr. 93,
96 S. W. 935, applying rule in prosecution for theft of mules; Tones
V. State, 48 Tex. Cr. 368, 122 Am. St. Bep. 759, 88 S. W. 219, 1 L. B.
A. (n. s.) 1024, where detective provided with marked coin to catch
robbers, arrested for drunkenness and searched in jail and money
9to]en by officers, there was want of consent; Allison v. State, 14 Tex.
Ap. 127, detective not an accomplice to crime where employed by
owner of stolen property; Conner v. State, 24 Tex. Ap, 251, 6 S. W.
139, hoppling horse by owner for purpose of detection, with expecta-
tion that defendant would take it, is not consent. See notes, 57 Am.
Dec. 272; 81 Am. Dec. 366; 72 Am. St. Bep. 703; 88 Am. St. Bep.
597, 598; 7 L. B. A. (n. s.) 758; 25 L. B. A. 341, 344.
Distinguished in Johnson v. State, 3 Tex. Ap. 592, crime of con-
spiracy to commit offense is complete when agreement entered into.
Quaere, Whetber Use of Word "Horsei'' by Wltnessee was not
synonymous with word "gelding," used in the indictment, and suffi-
cient to sustain conviction of offense charged.
Approved in Trevinio v. State, 1 Tex. Ap. 74, rule applied where
affidavit for continuance used word "horse" instead of "gelding,"
the word used in the indictment of case at bar; Brisco v. State,
4 Tex. Ap. 221, 30 Am. Bep. 163, proof of stealing a ridgling will
not support indictment for stealing gelding.
Opinion of Family Physician who had observed symptoms of in-
sanity in defendant is admissible on question of his sanity at time
of offense.
See note, 39 L. B. A. 308.
Miscellaneous. — Smith v. State, 43 Tex. 107, cited while discussing
the rule but not deciding the proposition.
43 Tex. 113-121, WILLIAMS ▼. HUUKG.
Defendant Served by Publication, who answered, and at subse-
quent term withdrew answer, cannot complain that order of dismissal
of suit subsequent to such withdrawal was revoked and suit rein-
stated.
Approved in Carlton v. Mdller, 2 Tex. Civ. 624, 21 S. W. 699, re-
instating case at same term, dismissed for want of prosecution; Bart-
ley V. Conn, 4 Tex. Civ. 300, 23 S. W,. 383, setting aside order dis-
charging defendants from suit. See note, 33 L. B. A. 519.
Courts may Enforce Parol Agreements of Counsel, though not re-
quired to.
Approved in Finley ▼. Love, 2 Tex. Ap. Civ. 647, and Faggard
V. Williamson, 4 Tex. Civ. 339, 23 S. W. 558, both reaffirming rule;
Massie v. Yates (Tex. Civ.), 29 S. W. 1133, enforcing oral agreement,
waiving three days' notice of filing title papers.
Defendant Served by Publication, having answered, cannot, by
withdrawal of answer, avoid results of such appearance or claim
that suit should proceed as though he was not served and had not
answered.
Approved in Jenkins v. Adams, 71 Tex. 4, 8 S. W. 604, and Capt
v. Stubbs, 68 Tex. 225, 4 S. W. 469, both reaffirming rule.
rSS ON TEXAS EEPOHTS. 43 Tai. 1
mo of plaintiff is not of
«quire notice to defendant.
on V. Swearengin, 48 Tei. 580, Teafflrmiiig rule,
nth Ootut to alter oi Bet aside decrees during
T. State, 8 Tei. Ap. 3(H, miscited.
iraON T. TATIAB.
xtatj uu] Api»alBem«nt nnder act of Aofraat
LAd eonvej' tbe bomutead, though estate in-
1 V. Holt, *4 Tex. 178, Orothans v. De Lopei,
> T. YungBt, 65 Tex. 636, all reafHtiuing rule;
iv.), 2i S. W. 1124, widow's deed of commun-
inalifieatioD a* survivor conveys whole estate
after qualiflcation; Withrow v. Adams, i Tex.
I, mistake in inventor;^ does not deprive party
. See note, SB L. B. A. 74.
OtereBt in Homaetead as such, aa against sur-
ae of homestead rights of deceased patent.
n V. Gray, 56 Tex. 252, and Zwememann v. Vou
a, 13 S. W. 4S8, both reafHrming rule; Barrett
;iT. IBO, 67 a. W. 199, wh«re husband without
[ed communitj homestead and mortgage fore-
li, wife's heirs not parties to forerlosurs pre-
homestead rights in property.
FM tbe 8«puate Froputy of surviving spouse,
a sell and convey is well settled.
)e«. 217; 76 Am. Dee. 60.
iPHT T. STEUl
Uleg»d Brron lit Accoant settled by note, ex-
kbsence of apeciflc allegations of error in the
it raised on appeal.
rn Union Tel. Co. v. McHenry, 3 Tex. Ap.
ie; Lewis v. Batten, 35 Tex, Civ. 370, 80 8. W.
)et mistake in division of land, objection that
^« was mutual cannot be maa« for first time
sL
ft Of ZiUids, followed by passession and expeo-
grantee, the terms of such eontract must be
ts mads upon strength of it. Permissive oeca-
I of gift is sufficient.
arford etc. By. v. Wood, 88 Tex. 194, 30 8. W.
[ontgomery v. Carlton, 56 Tex. 304, Woodbridge
i, 6 3. W. 822, WiUis T. Mclntyre, 70 Tei. 42,
S. W. 598, Wootters v. Hale, 83 Tei. 567, 19 8.
'reese, 2 Tax. Civ. 527, 21 6. W. 964. Bullock v.
54 8. W. 658, Story v. Black. 5 Mout. 50, 51
9, and Seavey v. Drake, 62 N. H. 334, alt
ble V. Worsbaro, 96 Tex. 92, 93, 97 Am. St.
38, 739, interest in land acquired by married
43 Tex. 135-147 NOTES ON TEXAS BEPORTS.
woman at separate property by parol gift followed by poase«i
and improvementB could not be conveyed to one puicbaaing it f
her, by deed from donor who still held record title; MeCarty v. I
(Tez. Civ.), 74 S. W. 80G, denying epeeiflc performance of oral i
tract to convey though full price paid where poBsession not ta
by purchaser and no improvements made; Ealeigh t. Wells, 29 U
224, 110 Am. St. Bep. 689, SI Pac. &11, plural wife who lived forty
years on huaband'a premises did not acquire title by adverse pos
sion based on parol gift where her residence waa merely as pli
wife and husband exercised dominion over property; Bondies v. I
(Tei. Civ.), 31 8. W. 244, bnrden is on party claiming such p
contract to prove it; Willis v. Matthews, 46 Tex. 483, enforc
verbal gift of land from father to son, where son possessed
improvementB made. See note, 3 L. R. A. (o. s.) 801.
Distinguished in Boodies v. Ivey, 15 Tex. Crv. 294, 39 8. W. :
distinguished where proven that party in possession agreed to
for land but did not; Ward T. Stuart, 62 Tex. 335, refusing
enforce parol agreement to convey where son not in poEseasioD
improvements made.
Limited in Bonner v. Bonner, 34 Tex. Civ. 351, 78 8. W. !
actual possession and improvements not necessary where fat
divided estate among children hy parol gift and partition prioi
his death and children each claimed and held parts in Beveraltj
more than twenty years.
43 T«Z. 136-138, BIDI.ET T. HEKDEKSON.
Judgment Ordering Sale of I>and seized under attachment for i
cannot be enforced pending appeal by claimants, who have exeet
Approved in Gruner v. Weston, 66 Tex. 213, 18 8. W, 813, reaffi
ing rule.
Wbeto Jndgmeot Is Bendeied AgtioA the Oleik of Court in n
damus, be has the right of appeal.
Approved in Moore v. Muse, 47 Tex. 216, reaffirming rule.
43 Tez. 138-143, SHAOEI.EFOBD T. STATE.
Wbere Bequlsttes of Statute entitling party to continuance e
plied with, and the affidavits in support tbereof are not discredi
such party is entitled, as a matter of right, to continuance.
Approved in Swofford v. State, 3 Tex. Ap. 85, Brown v. St
3 Tex. Ap. 310, Stephenson v. State, S Tex. Ap. 60, Willismi
State, 10 Tex. Ap. 533, and Peeler v. State, 2 Tex. Ap, 456,
granting continuance where requisites of statute complied i
by parly entitled thereto.
Statements of One Accrued of Tbeft, made at time of an
after being found in possession of stolen property, but against wl
evidence is only circumstantial, are admissible in his defense.
Approved in Wright v. State, 10 Tei. Ap. 479, Harmon v. St
3 Tex. Ap. 54, and Taylor v. State, 15 Tex. Ap. 360, admitting
evidence declarations made by defendant at time of arrest expl
ing posseaaion of stolen property.
43 Tez. 143-147, BBADSHAW T. HOtTSE.
Purchaser of Land at Sale Under Order of Oonit enforcing
reserved by law in favor of creditor takes title agaloat purch:
OTES ON TEZAB BEPOBTB. 13 Tex. 147-10»
ider penonal jadgment Eigninit a distribatm in
ho failed to enforce lien.
V. T»iJdy, 70 Tex. 748, 6 S. W. 621, reaffiimiDg
UtHELL V. STATE.
3iUlii£ Att«iitlon to FuUcnlar Facts lelied upon
indicating tbe law tbereoD is proper.
are t. State, 1 Tex. Ap. 25, leaffirmiDg rule;
IT Tez. Ap. 424, Bastaining chacge not npon
ldaiic« from Jmr that defendant claimed tha
, when charged with theft, is error.
or V. State, 15 Tez. Ap. 360, reaffirming rule.
TATT T. JEFFRI£a.
lellant of Inftbllitr to Olve Bond and Beenritjr
ire county clerk of another state insufficient, and
such affidavit will be dismissed,
lydt T. Alexander, 99 Uo. Ap. 192, defining affl-
Am. Dec. 327.
raSUFUlU) T. DAVI8.
from Order of Dlatrlct Court disapproving eala '
. favor of purchaser at such -sale, under probate
.Itota etc. Co. v. Sullivan, ft N. J). 306, 83 N.
appeal from order confirming sale.
t an Inadequate Filce should not be approved by
es V. Nease (Tex. Civ.), 69 S. W. Ill, following
lith, 49 Tex. 424, setting aside sale where price
lATE T. EDUONDBON.
Iilcb OhaigM^ In Two Separata OonntB, two sepa-
lenaes would be bad for duplicity.
dersoD v. State, 2 Tex. Ap. 89, sustaining iodict-
otfeoses where one count is bad; Nicliolae v.
326, 5 B. W. 241, qoaere, whether the two statu-
! can be joined in one indictment.
I Law mdlctment Might Allege that party died
)r wounds charged to have been given, without
ed of any one in particular.
n V. State (Tex. Ap.), 12 S. W. 1102, indictment
ravated and a common assaalt in the same count;
Kan. 664, 33 Pac. 28S, 24 L. B. A. SS5, sustaining
hree separate death strokes alleged in one i^ount;
Or. 258, 50 Pac. 562, sustaining indictment alleg-
ina of billing.
rANFIEU) T. STATE.
le Bight to have the issnes of law and fact so
ary that they may pass upon them.
IDS V. State, 3 Tex. Ap. 14, reversing judgment,
given on two other grounds, constituting aggra-
43 Tex. 169-175 NOTES ON TEXAS REPOBTS.
53e
vated assault, than the one' charged; Dowlen v. State, 14 Tex. Ap.
66, reversing judgment where issues not properly presented to jury;
Parker v. State, 22 Tex. Ap. 107, 3 S. W. 103, charge of court must
apply to offense charged.
Whether Correction of a Child is Moderate or excessive depends
upon the age, sex, condition, and disposition of the child, with all
surrounding circumstances to be judged by the jury, under proper
instructions.
Approved in Bell v. State, 18 Tex. Ap. 56, sustaining conviction
of aggravated assault against school teacher where victim a child ;^
Bolding V. State, 23 Tex. Ap. 175, 4 S. W. 580, moderate correction
of pupil by teacher is not an offense.
Ouardlan Ezcossiyely Chastising ChUd is guilty of aggravated
assault.
See note, 21 L. B. A. (n. s.) 218.
43 Tex, 169-170, COTTON Y. STATE.
Where Offense Proved as Charged in Indictment, the fact that
witnees on whose testimony bill found knew nothing of particulsir
offense proved cannot avail as defense. Defendant has no right to
inquire into intentions of grand jury except as expressed in indict-
ment.
Approved in Hart v. State, 15 Tex. Ap. 224, and Johnson v. State^
22 Tex. Ap. 222, 2 S. W. 613, defendant cannot inquire whether
indictment is based upon proof. See note, 28 L. B. A. 326.
43 Tex. 170-175, WEIGHT ▼. STATE.
No Conviction can be had upon the uncorroborated testimony
of an accomplice, but an accomplice is not an incompetent witness.
Approved in Hasselmeyer v. State, 1 Tex. Ap. 701, Davis v. State,
2 Tex. Ap. 606, Gillian v. State, 3 Tex. Ap. 137, and Irwin v. State.
1 Tex. Ap. 303, all reversing judgment rendered upon uncorroborated
testimony of accomplice. See notes, 71 Am. Dec. 678; &8 Am.
St. Bep. 167; 28 L. B. A. 319.
Where No Evidence of Conspiracy between accused and others
charged in separate indictment with same murder, evidence of quar-
rel between deceased and other parties charged is inadmissible.
Approved in Preston v. State, 4 Tex. Ap. 200, reaffirming rule;
Cox V. State, & Tex. Ap. 303, evidence of antecedent acts and
admissions of co-conspirators is admissible against all; Heffingtou
V. State, 41 Tex. Cr. 320, 54 S. W. 757, in manslaughter case evi-
dence of other offenses not connected with the charge at bar is not
admissible; Morris ▼. State, 13 Tex. Ap. 73, error to admit evidencj
of co-conspirator as to acts and admissions of defendant after
consummation; State v. Quen, 48 Or. 350, 86 Pac. 792, in absence
of proof of conspiracy evidence of threats by one to kill another,
made in presence of third party who thereafter shot person threat-
ened, is inadmissible against accused.
The District Attorney may. With Consent of Courts enter a nolle
prosequi in cases where it becomes necessary to ends of justice that
one or more of the defendants, with their consent, turn state's evi-
dence.
Approved in Bowden v. State, 1 Tex. Ap. 144, Camron v. State,
32 Tex. Cr. 183, 40 Am. St. Rep. 766, 22 S. W. 683, and Tullis v.
State (Tex. Cr.), 52 S. W. 84, all reaffirming rule. See notes, 40^
Am. St. Bep. 768; 35 L. B. A. 710.
NOTES ON TEXAS EEPOBT& 43 Tex. 175-192
JTOOD T. EVANS.
der of Tiomiaaorj Hote^ alleging failure to paj
nt credited theTeon, which amoont is not stated,
opshire t. Smith (Tex, Civ.), 37 8. W, 470, in suit
itioD of QDpaid balance of "about eight hondred
ient; Howell etc. Co. v. Citizeos' etc. Banli, 81
for balance due on large running account muat
tatement.
:tion and tlie BreMb should be dietinctlj averred.
brell V. Ireland, 1 Tex. Ap. Civ. 123, diBmiasing
ig cause af action.
3 Am. Bap. GSO, WHJJAMS t. STATE.
I of Olrcnmstantlal Erldonce^ evidence of flight
his forfeiture of bail are inadmissible on part of
n. Dec. 185; 97 Am. St. Bep. 784.
irdin V. State, 4 Tex. Ap. 368, Hart v. State, 22
, W, 742, and Blake t. State, 3 Tex. Ap. 586, oil
0 prove escape of defendant after homicide and
>AVI8 V. STATE.
Allow LetUUng QnesUoiu, there being no reason
furnished in the record.
■dsoe V. State, 52 Tex. Cr. 627, 108 S. W. 389, Gar-
Tex. Cr. £82, 106 B. W. 392, and Biplej v. State,
W 8. W. 946, all following rule; International etc.
: Tex. 6SS, 51 S. W. 501, error to permit question,
:h answers two questions.
lid be Prored Beyoiid Haastmable Donbt, and jury
icted in prosecution for rape,
ord T. State, 12 Tex. Ap. 183, reafSrming rule;
17 Tex. Ap. 537, reversing judgment where jury-
acted; Blair v. Stats (Tex. Cr.), 56 S. W. 622,
both affirms aod also denies the rape in toto,
t be sustained where there is no other proof of
lote, SO Am. Dec. 362.
1 V. Welch, 41 Or. 37, 68 Pac. 809, in proBCCntion
la under age of sixteen, where evidence showed
and that she and defendant slept together for five
presumed.
or will not bft Allomd to prove misconduct' of
Louis etc. Ey. Co. v. Eicltetts, 98 Tex. 71, 70
V. Missouri etc. Ey. Co., 30 Tex. Civ. 273, 69 H.
chold V. State, 16 Tex. A p. 584, reaffirming rule.
M BerersMl where apparent that verdict is not
ckworth V. State, 42 Tex. Cr. 76, 57 S. W. 666,
; where not supported by competent evidence,
ibtfnl and ITncaitaln OhaxacUi i» insufficient to
43 Tex. 192-204 NOTES ON TEXAS EEPOETS.
638
Approved in Cude v. State, 50 Tex. Or. 373, 97 8. W. 486, holding
evidence simply raising suspicion and not corroborated by facts
easily obtainable insufficient to support conviction for incest.
43 Tex. 192-196^ BYAK ▼. MAXEY.
Married Womea will not be Allowed to perpetrate fraud in
recovering property sold at their instance and for their benefit, or
that of their estate.
Approved in Morris v. Turner, 5 Tex. Civ. 712, 24 S. W. 960,
Stephenson v. Marsalis, 11 Tex. Civ. 171, 33 S. W. 3«7, Robert v.
Ezell, 11 Tex. Civ. 178, 32 S. W. 363, Eobb v. Henry (Tex. Civ.), 40
S. W. 1049, Hubs v. Wells, 17 Tex. Civ. 197, 44 S. W. 34, and Taylor
V. Tompkins, 1 Tex. Ap. Civ. 589, all realQirming rule; Stafford v.
Harris, 82 Tex. 185, 17 S. W. 533, parties urging appointment of
trustee of estate are estopped from attacking his acts; Talkin v.
Anderson (Tex. Sup.), 19 S. W. 351, where married woman accepted
land in partition and sold it to one who was not a party to the par-
tition, she ie estopped from disturbing the partition ;Berger ▼. Beeves
(Tex. Civ.), 24 S. W. 528, where heirs acted as commissioners in
selling land, they are estopped from claiming it; Jones v. Bull,
90 Tex. IM, 37 S. W. 1057, party severing personal from real prop-
erty and disposing of it is estopped from urging that it was realty;
Cordray v. Neuhaus, 25 Tex. Civ. 254, 61 S. W. 418, land owner not
estopped from recovery of land where attorney confessed judgment
for greater amount than authorized. See notes, 58 Am. Dec 115;
65 Am. Dec. 185.
43 Tex. 197-204, HIBLEB ▼. STATE.
. A Beqnisition Made upon Oovemor of Tezaa by governor of
sister state for arrest of one claimed "fugitive from justice" suffi-
cient authority for governor's order of arrest, and the prisoner's only
remedy is by habeas corpus.
Approved in Re Bloch, 87 Fed. 983, reaffirming rule; In re Mohr,
73 Ala. 515, discharging prisoner upon proof that he was not a
fugitive from justice; In re Baker, 21 Wash. 263, 57 Pac. 829, hold-
ing prisoner where proven a fugitive from justice. See notes, 57
Am. Dec. 396, 397; 68 Am. St. Bep. 130.
The Provisloiis of the Federal Oohstltutlon relating to surrender
of fugitives from justice is equally binding on each state and its
officers, as though part of its constitution.
Approved in Be Mohr, 73 Ala. 509, 49 Am. Bep. 70, and Ex
parte Pearce, 32 Tex. Cr. 304, 23 S. W. 16, both reaffirming rule.
Absence of Seal of Clerk of Court in which indictment purports
to have been found and of file-mark does not invalidate requisition.
See note, 28 L. B. A. 803.
"Fugitive from Justice" defined.
Approved in Appleyard v. Massachusetts, 203 U. S. 232, 51 L.
165, 27 Sup. Ct. Bep. 122, under constitutional provision relating to
extradition accused is fugitive if he was in demanding state at time
of offense though not after finding of indictment; People v. Hyatt,
172 N. Y. 184, 92 Am. St. Bep. 706, 64 N. E. 827, 60 L. B. A. 774,
constructive presence of one in demanding state at time of offense does
not make one fugitive. See note, 28 L. B. A. 290.
TEXAS BEPOBTS. 43 Tei. S05-221
rtner'B Nuna in amended petition fllei
prayer for relief by ameDdment, ia
)t which atatute would run.
Sir ea ran gin, 48 Tex. 560, reafflrming
I. 144, 11 a. W. 1090, amendment cor-
of note not new cause of action; Mid-
Co. (TBI. Civ.), 27 8. W. 170, changing
int by amendment is not new caase
y Street By. etc. Co., 80 Tex. 486, 15
of party in ^ayer tor relief not new
M Two or Mota Defenduits on appeal
!H as a Teversal as to all.
rescott, 73 Tei. 566. 11 8. W. 549, Md
1, both reaffirming rule.
le charaeteT in wbicb h« snea or the
[■ Bned by an amendment, the amend'
limit&tiona.
ocery Co. v. Craddock Grocery Co., 34
where after defendant sued as non-
served, but had not answered, petition
as pBTtcership, default judgment with-
lefendant is void; Dillingham t. Anello
personal injury suit, where defendant
,ver at time of injury, plaintiff cannot
party after one year's limitation.
ite, 1 Tex. Ap. 159, reafBrming rule.
STATE.
of Offenaa given in statement of facts
will be reversed when it appeara that
lent to indictment.
:e, 8 Tex. Ap. 466, reaffirming mle.
. T. BBOWN.
eta, the verdict will be presumed sup-
it ion states good cause of action.
s etc. Bank, 1 Posey U. C. 95, reaffirm-
IiorlzM Verdict on cause of action not
be disturbed in absence of statement
ow it waa not affected by erroDeaus
elle, 68 Tex. 386, 4 S. W. 844, verdict
icb based is not special verdict.
ifandants against wham judgment ren-
BB, □mission of judgment to state that
.ufmnn, 62 Tex. 54B, reaffirming rule.
43 Tex. 221-235 JTOTES ON TEXAS BEPOBTS.
540
43 Tex. 221-224, CAROTHEBS Y. McNESE.
Husband is a Necessary Party Defendant in an action upon a con-
tract signed by the wife.
Approved in Noel v. Clark, 25 Tex. Civ. 143, 60 S. W. 359, reaffirm-
ing rule.
Long and Necessary Absence of Husband from the state does not
necessarily authorize the wife to bind community property as her
separate estate for purchase of land.
See note, 64 Am. St. Bep. 867.
Where the Husband Totally Abandons tbe Wife, she acquires the
right to manage, control, and dispose of community property, as well
as her separate estate, without his joinder or consent.
Approved in Zimpleman v. Bobb, 53 Tex. 281, Bennett v. Mont-
gomery, 3 Tex. Civ. 226, 22 S. W. 117, Houston etc. Ry. v. Lackey,
12 Tex. Civ. 234, 33 S. W. 770, Fermier v. Brannan, 21 Tex. Civ.
Ap. 547, 548, 53 8. W. 701, 702, and Woodson v. Massenberg, 3 Tex.
Civ. 148, 22 S. W. 107, all reaffirming rule; Davis v. Saladee, 57
Tex. 326, sustaining ^ contract by wife upon desertion by husband.
See note, 60 Am. Dec. 205.
43 Tex. 225-227, MABDIS ▼. JOHNSON.
On Trial of Bight of Property, when verdict is against claimant
having given bond under statute, judgment for value of property is
error; he has ten days to return property, in default of which his
bond is forfeited.
Approved in Maymore v. Baldwin, 1 Tex. Ap. Civ. 395, failure
to restore property forfeits bond.
Overruled in Wrought Iron etc. Co. v. Brooker, 2 Tex. Ap. Civ.
178, and Floege v. Wiedner, 77 Tex. 316, 14 S. W. 133, judgment
must be unconditional, but may be satisfied by return of property.
43 Tez. 227-229, McADOO ▼. LUMMIS.
Attorney Beceiving and Holding Claim Without Compensation, for
the sole purpose of receiving and paying over money paid thereon,
cannot be held responsible on debt being barred by statute.
See note, 77 Am. Dec. 386.
Plea by Attorney, Oratuitously Holding Note for Collection, that
makers of note were discharged in bankruptcy would be good bar
to liability for allowing statute to run against note.
Distinguished in Herman v. Lynch, 26 Kan. 440, bankruptcy no
discharge from failure to turn over money received in fiduciary capac-
ity.
43 Tex. 230-233, EDMUNDSON ▼. STATE.
Issuance of Subpoena for Witness during trial at request of
accused is matter of right.
See note, 8 L. B. A. (n. s.) 512.
Distinguished in Pittman v. State, 51 Fla. 108, 41 So. 390, 8 L.
B. A. (n. s.) 509, upholding refusal to subpoena witnesses for defense
at expense of county where statutory requirements not properly
complied with.
43 Tex. 233-235, KIBKIAND ▼. SULLIVAN.
Party to Suit cannot be Required to go to trial of his cause when
same called out of its regular order on docket, and before precedent
suits are disposed of; such procedure is reversible error.
Approved in Price v. Lauve, 49 Tex. 80, reaffirming rule.
SOTES ON TEXAS BBP0BT8. 13 Tei. 83C-261
lyn V. Willis, 65 Tex. 70, trying cbqm oat of
'ound for reversal where no injury dooe; Missouri
i, 72 Te». IflS, 10 8. W. 409, by statute now in
squire eaase to be tiied out of order on docket.
BWIH T. STATE.
nuaata to Asaaasliiata nor desperate character of
«ible in evideoce, uBlesa deceased shown to liave
ime of killing indicating hia purpose theu to kill
rbaeb v. State, 43 Tex. 254, permitting general
led to be proven in eonnection witb acta dooe at
tewart v. State, 36 Tex. Cr. 133, 35 8. W. 986,
of tbreata where doubtful as to who coinineneed
Itate, 17 Tex. Ap. 044, Creswell v. State, 14 Tex.
3tate, SS Fla. 137, 29 Am. St. Rep. 241, 9 So. 641,
2 Tex. Ap. 366, all excluding evidence of threatg
lat deceased intended to execute them. See notei,
028; 89 Am. St. Rep. 702; 3 L. E. A. (n. s.) 524.
I tlie Person of an indiTldnal, in order to justify
inch as to produce reasonable expectation or tear
bodily injury.
raoch T. State, 7 Tex. Ap. 276, Howard v. State,
S. W. 236, Ex parte Taylor, 33 Tex. Cr. 537, 28
! V. State, 27 Tex. Ap. 687, 11 Am. St. Bep. 221,
Qarner v. State, 28 Fla. 134, 29 Am. St. Bep. 239,
rmiog rule; Sims v. State, 9 Tex. Ap. 5B5, inquir-
eharacter of deceased wbere defense based on
State, 40 Tex. Cr. 449, 50 S. W. 941, refusing to
■defense where not supported by evidence.
OBBACB V. STATE.
>T Murcler, general character of deceased may be
be has made threats or where it would serve to
a at time of killing, which acts must first be
«rd V. State, 23 Tex. Ap. 277, 5 8. W. 235, Rhea
'r. 140, 38 S. W. 1012, Jones v. State, 38 Tex. Cr.
.. 738, 41 S. W. 642, Heffington v. State (Tex. Cr.),
er v. State, 28 Fla. 134, 136, 137, 29 Am. St. Rep.
941, Boyle v. State, 97 Ind. 325, BowIub v. Stale,
E. 1115, Upthegrove v. State, 37 Ohio St. 664, and
8 Fla. 138, 29 Am. St. Rep. 242, 9 So. 841, all
tly V. State, 20 Tei. Ap. 9, West v. State, 18 Tex.
r. State, 14 Tex. Ap. 110, 46 Am. Rep. 240, Moore
p. 16, Branch v. State, 15 Tex, Ap. 101, and Crea-
:x. Ap. 17, all admitting evidence of general repu-
where act at time of killing showed intention to
lliams V. State, 44 Tex. Cr. 303. 100 Am. St. Bep.
on trial of wife for murder of husband, evidence
r cruelty and brutality committed liy him on her
ton V. State, 41 Tei. Cr. 320, 54 S. W. 758, on
'here defense was self-defense, evidence to show
■r offenses by deceased long prior lo homicide is
ton etc. R. Co. v. Bell (Tex. Civ.), 7:1 S. W. B2,
cti<ui for assault eviJeuce of particular acts of
43 Tex. 242-261 NOTES ON TEXAS BEPOETS.
542
plaintiff showing character for Tiolence and turbulence inadmissi-
ble; Long V. State, 72 Ark. 432, 81 S. W. 389, 65 L. B. A. 937, in
murder case evidence of general reputation of deceased for going
armed inadmissible where deceased and defendant resided in dis-
tant places; Commonwealth v. Tircinski, 189 Mass. 259, 75 N. E.
262, 2 L. B. A. (n. s.) 102, in prosecution for manslaughter on issue
whether when defendant struck deceased he had reasonable cause to
apprehend bodily harm, evidence of character of deceased as quar-
relsome and fighting man known to defendant is admissible; State
V. Ellis, 30 Wash. 373, 70 Pac. 964, holding erroneous, exclusion of
evidence as to deceased's reputation for and his habit of using deadly
weapons in quarrels; Stevens v. State, 1 Tex. Ap. 593, and Irwin v.
State, 43 Tex. 242, both rejecting evidence of general character
where no act of deceased at time of killing indicated intention to
carry out threats; Stapp v. State, 1 Tex. 739, admitting evidence of
general reputation where act of deceased showed intention to execute
threat; Grissom v. State, 8 Tex. Ap. 395, evidence of character of
deceased not admissible where not known to defendant at time of
killing; Allen v. State, 17 Tex. Ap. 644, excluding evidence of threats
where no act indicating intention to execute them; Shields v. State,
32 Tex. Or. 502, 23 S. W. 895, admitting proof of general reputation
of prosecutrix for chastity in rape case; Jones v. State (Tex. Or.), 41
S. W. 645, allowing proof of general reputation of deceased as man
of unchaste and lecherous habits in homicide case; Glenewinkel v.
State (Tex. Civ.), 61 S. W. 124, admitting evidence of general
character where knowledge of witness shown; Stewart v. State, 36
Tex. Or. 133, 35 S. W. 987, admitting evidence of threats of deceased
where doubtful who commenced attack. See notes, 124 Am. St. Bep.
1019, 1020, 1030; 3 L. B. A. (n. s.) 354, 365, 525; 2 L. B. A. (n. s.)
103.
Distinguished in Plasters ▼. State, 1 Tex. Ap. 683, general reputa-
tion for honesty not admissible in trial for murder.
The Law Requires the Party Killing to Wait until some act done
by deceased at time of killing which would justify him in believing
he must kill in self-defense.
Approved in Lister v. State, 3 Tex. Ap. 28, court must charge as
to self-defense where evidence supports justification.
In Impaneling Jnxy in Capital Case, the names of persons sum-
moned are to be called in order t*hey stand upon list, and when
found qualified, they are to be challenged peremptorily or for cause,
or accepted severally until full panel is secured.
Approved in Mitchell v. State, 43 Tex. 516, Taylor v. State, 3 Tex.
Ap. 199, Garza v. State, 3 Tex. Ap. 293, Wasson v. State, 3 Tex. Ap.
477. Baker v. State, 3 Tex. Ap. 531, Hardin v. State, 4 Tex. Ap. 363,
Bay V. State, 4 Tex. Ap. 453, Boberts v. State, 5 Tex. Ap. 147, and
Drake v. State, 5 Tex. Ap. 656, all reaffirming rule; Cox v. State,
8 Tex. Ap. 285, jury need not be brought from vicinage of offense.
A Juror cannot be Peremptorily Challenged after he is accepted
and impaneled, though the court may excuse such juror upon good
cause shown.
Approved in Mayers v. Smith, 121 HI. 448, 13 N. E. 218, reaffirm-
ing rule; Black v. State, 46 Tex. Cr. 595, 599, 600, 81 S. W. 303,
306, where juror, after examination and acceptance, but before jury
completed, stated to court that he had not understood questions, but
that he had conscientious scruples against death penalty, he was
3 ON TEXAS REPORTS. 43 Tbi. 261-274
EvuB V. State, 0 Tex. Ap. S17, excusing
ere found disqualified; McMillan v. State,
not be challenged peremptorilj after accept-
T. State, 23 Fla. 612, 3 So. 208, permitting
lenge juror after acceptance.
uioti of Oreat BMUly Hann, or that life is
pArty from using all necessary force to pro-
state, 4 Tex. Ap. 449, Hudson y. State, fl
r. State, 7 Tex. 276, Ricbardeon v. State, 7
T, State, 8 Tex. Ap. 538, Kendall v. Stale,
T. State, S Tcz. Ap. 38, Foster v. State, 11
tate, IS Tex. Ap. E2, Short v. Stata, 15 Tex.
17 Tei. Ap. 521, Patillo v. State, 22 Tex. Ap.
nan v. State, 23 Tei. Ap. 230, 4 S. W. 588,
Ind. 148, 31 N. E. SOS, all reaffirming rule;
Dr. 68, 100 S. W. 372, determining when homi-
ction of perion from attack; Oilleland t,
re attack by deceased caused by wrongful
ction that killing must, in fact, be in selt-
dant not error; Babb t. State, 8 Tex. Ap.
ling must, in fact, be in self-defense, and
Bright V. State, 10 Tex. Ap. 86, charge of
it; Hill V. State, 10 Tei. Ap. 626, reversing
ifuaed to instruct as to law of self-defense;
'ex. Ap. 648, dissenting opinion, majority le-
no T. SMITH.
ut Of ft PaHnenlilp is not iu nature of plea
need not be verified by oatb.
■V. Monroe, 51 Tex. 111.
tBelf Out M a Fartaer, be is BDeh to uiothet
such partner, but snch holding out must b<
it a mere conjecture.
. Wood (Tex. Sup.), 7 S. W. 855, 858.
t is nnsatlBfactorj to eith^ party, objectiol
time given, or further inetructious asked.
y. Cramer, 63 Tex. 102, reaffirming rule.
PBOK T. STATE.
of Several Articles is sufficient if it allege
BQch articles.
State, 4 Tex. Ap. 122, Doyle v. State, 4 Tex
tate, 7 Tex. Ap. 7, all reaffirming rule; Wan
i9, sustaining indictment alleging aggregatt
Undar ladlctment for theft of several arti
Jue only is alleged, the theft of kll articlei
State, 15 Tex. Ap. 628, reaffirming rule.
eesslon of Property B«centl7 Stolen is primi
wtiich devolves upon defendant necessity ai
43 Tex. 274-290 NOTES ON TEXAS EEPOETS.
544
Approved in McCoy y. State, 44 Tex. 618, Alderson ▼. State, 2 Tex.
Ap. 12, and Hannah v. State, 1 Tex. Ap. 584, all reaffirming rule.
Possession of Property Recently Stolen is evidence against de-
fendant, which is to be considered by jury in connection with other
testimony of the case.
Approved in Watkins v. State, 2 Tex. Ap. 74, and Hernandez v.
State, 9 Tex. Ap. 290, all reaffirming rule.
Where There is Evidence Tliat Accused Claimed Property for theft
of which he is on trial, the intent of taking by defendant should be
submitted to jury by charge of court.
Approved in Yark v. State, 17 Tex. Ap. 442, Irvine v. State, 13
Tex. Ap. 501, and Johnson y. State, 12 Tex. Ap. 391, burden of proof
to rebut explanation lies upon the state; State v. Bailey, 63 W. Ya.
672, 60 S. E. 787, facts and circumstances indicating lack of confi-
dence in claim of right under which property is taken and its con'
cealment tend to prove lack of good faith on part of taker.
Argument of Coimsel Should be Restricted to discussion of facts
of case and conclusions legitimately deducible from law applicable
to them.
Approved in T. & St. Louis B. B. v. Jarrell, 60 Tex. 270, and Hatcli
V. State, 8 Tex. Ap. 425, 34 Am. Eep. 757, both reaffirming rule;
Willis V. McNeill, 57 Tex. 475, error to permit counsel to discuss
irrelevant question of wealth of a party; Northington v. State, 14
Lea, 431, Williams v. State, 11 Tex. Ap. 277, and Eanes v. State,
10 Tex. Ap. 454, all holding that counsel who abuses his privilege to
injury of opposing party should be promptly stopped; Western etc.
B. B. Co. V. Cox, 115 Ga. 718, 42 S. E. 75, granting new trial in
personal injury case for improper remarks of attorney for plaintiff in
concluding argument. See notes, 48 Am. 'Bep. 338; 46 L. B. A. '670.
43 Tex. 274-276, BOWLETT V. LANE.
An Obligation to Pay Certain Sum "at earliest possible moment"
is conditional, and plaintiff suing must prove ability of maker to pay
the debt.
Approved in Johnson v. Clements, 23 Tex. Civ. 118, 54 S. W. 275,
Carlisle v. Hooks, 58 Tex. 421, and Haley v. Harvey, 1 Tex. Ap. Civ.
618, both reaffirming rule.
Oamishee's Liability is Dependent upon Judgment rendered against
defendant. Beversal of such judgment annuls judgment against
garnishee in same proceeding.
Approved in Horst v. London etc. Ins. Co., 73 Tex. 72, 11 S. W.
149, reaffirming rule; Shoemaker v. Pace (Tex. Civ.), 41 S. W. 498.
judgment against garnishee is null where original judgment against
defendant is null for want of jurisdiction.
Distinguished in Marx v. Hart, 166 Mo. 520, 89 Am. St. Bep. 715,
66 S. W. 265, where judgment rendered against garnishee, fixing his
liability for value of goods of principal debtor attached in his hands,
subsequent bankruptcy discharge of principal debtor does not dis-
charge garnishee.
43 Tex. 279-290, HETTEN v. LANE.
Sureties on Official Bond are not Liable for moneys misapplied
before date of such bond. But in suit on such bond, accompanied by
an account as part of petition, showing indebtedness at date of bond,
presumptions are that the official had money at that date, and sure-
ties must prove misappropriation prior to bond.
ON TEXAS BEPOBTS. 43 Tex, 291-310
Miller, 46 W, Va. 338, 32 8. E. 1019, m-
iBh, 91 Tex. 121, 41 S. W. 476, Barr; t.
ex. 2S3, 3 8. W. 262, both holding bond of
active effect; Pine County v. Willard, 39
623, 30 N. W. 72, 1 L. B. A. 118, Mutual
137, Mahon v. Kinnej Co. (Tex. Civ.), 28
r. State, 81 Tex. 191, 16 S. W. 877, all
t sureties for miBappropriation of funds at
L, B. A. (n. ».) 133.
UcCUTOHEN.
Bond for I)aUT«r7 of SlaTs In 1857, be-
tful, who was afterward prevented from
United States and Texai laws, is relieved
13 Tex. dv. 512, 36 S. W. 311, reaffirming
'. EALTAUAH.
Ind«p«ndent of Doed and contemporaneous
with claimant's posiession of title paper*,
egarding same, for series of jears, afford
nnineness of deed.
k, SO Tex, 524, where execution of deed
'cuader must prove same; Belcher v. Fox,
copy from record where execution of deed
,rd, 71 Tex. 77, see 0 3. W. T7, continued
t of husband, and payment of taxes suffi-
Ammons v. Dwyer, 78 Tex. 646, 15 S. W.
hirty years before suit, admissible to prove
T. Boberts, 13 Tex. Civ. 571, 36 S. W.
hesdright certificate made after decease
'ment of commnnity debts, after lapse of
ens, 14 Tex. Civ. 242, 250, 38 S. W. 476,
women to deed may be proven the same
», 20 Tex. Civ. 403, 49 8. W. 722, execution
circumstances.
I to warrant the appellate court in setting
, Moody (Tex. Civ.), 24 S. W. 332, Camp-
E4 S. W. 663, and Tuggle v. Hughes {Tex.
ling that improper testimony is cot cause
ia enough legal evidence to sustain the
U T. STATE.
'olion, starving, torture, or with express
of arson, rape, robbery, or burglary is
der not in first degree is in second.
!0; «3 L. B. A. 3S6, 3S7.
V. STATE,
xlct Judge on motion of district attorney
removal,
te, 40 Tex. 673, and Trigg v. Slate, 49 Tex.
Smith V. Breonan, 40 Tex. 632, a mere
43 Tex. 340-347 NOTES ON TEXAS REPORTS.
546
private citizen has no right of suit on behalf of state to remove
county officer.
Sheriff, Before Being Bemoved from Office, is entitled to notice of
the charges against him, and to an opportunity to be heard in his
defense.
Approved in Steinback v. Oalveston (Tex. Civ.), 41 S. W. 824, in
case where a police officer was unlawfully removed from office by
police commission.
Prior to Act of March 16, 1876, removal of sheriff by district judge
was no obstacle to his election to and holding same office removed
from.
Approved in Brackenridge v. State, 27 Tex. Ap. 530, 11 S. W. 632,
4 L. R. A. 360, conviction for offense prior to election no ground for
removal of officer; State v. Patton, 131 Mo. Ap. 632, 110 S. W. 638,
holding under Rev. Stats 1899, sec. 5761, city treasurer cannot, prior
to conviction, be removed for embezzlement of city funds while city
officer prior to his election as treasurer.
Miscellaneous. — Cline v. State, 36 Tex. Or. 366, 37 S. W. 729, cited
arguendo in dissenting opinion as an instance where the court fol-
lowed previous construction given to similar clause in constitution,
majority construing section 10, Bill of Rights.
43 Tex. 340-346, FISE v. FLOBES.
Becitals in Deed Bind Both Parties Thereto, and parties claiming
under such deeds.
Approved in Gonzales v. Batts, 20 Tex. Civ. 425, 50 S. W. 405, re-
affirming rule; Harter v. City of Marshall (Tex. Civ.), 36 S. W. 296,
holding city liable for overflow of standpipe, where contract allow-
ing it the privilege obligated it to pay such damages.
Owner of an Undivided Interest in realty may maintain suit for
its recovery from one who is merely a naked trespasser.
Reaffirmed in Berger v. Reeves (Tex. Civ.), 24 8. W. 528.
A Donation in Consideration of Services rendered by married woman
to donor is not community property, nor could real estate so con-
veyed be disposed of by husband.
Approved in Samuelson v. Bridges, 6 Tex. Civ. 428, 25 S. W. 637,
Kircher v. Murray, 54 Fed. 623, and Ames v. Hubby, 49 Tex. 710,
all reaffirming rule; Adoue v. Spencer, 62 N. J. £q. 790, 90 Am. St.
Rep. 484, 49 Atl. 14, 56 L. R. A. 817, considering presumption of gift
of income from wife's separate from its receipt by husband. See note,
126 Am. St. Rep. 115.
43 Tex. 346-347, MOFFIT ▼. STATE.
An Indictment for Indecent Ex]K>sur6 charged to have been done
"in a public place, to wit, a public road," is bad; the publicity con-
templated by law refers to persons rather than locality.
See note, 31 Am. Rep. 139.
Indictment for Indecent Exposure, in language of statute, is suffi-
cient.
Approved in State v. Perry, 117 Iowa, 468, 91 N. W. 767, upholding
sufficiency of information for indecent exposure to give police judge
jurisdiction, so as to base charge of perjury for false testimony at
preliminary examination.
3 ON TEXAS HEPOETS. 43 Tex. 347-367
IS V. STATE.
it, to bB good, murt ihow that former trial
rged.
Sute, 45 Tei. 79, 23 Am. Bep. 6W, Lowe v
parte Bogers, 10 Tex. Ap. 665, and Ptitch-
72, all reafflrming rule.
Wwrt of Indictment at bar would not have
int, they do not charge the aame offense
T. State, 13 Tex. Ap. 288.
rictwl for Any Imb ofFenae inclnded in one
Itate, 1 Tex. Ap. 325, reaffirming nie.
r. BTATE.
■ State Ererytlilng necesaary to justify x
of answer is defective.
State, 3 Tex. Ap. 572, Pearson v. State 7
itate, 14 Tex. Ap. 446, Arrington v. State
BU Y. State, 3 Tex. Ap. 381, all reaffirming
.ex. Ap. 274, and Sara y. Sute, 8 Tex. Ap.
lot affect acire faciaa. See note, 122 Am.
BTATE.
Bold by THIW and afterward atolen from
laat theft may allege ownership either in
togera, 10 Tex. Ap. 665, reaffirming rule-
t. 462, ownership of atolen property may
In poBsession at time of thefL See note,
or T. BTATR
r upon voluntary return of
does not apply where character of prop-
tate, 2 Tex. Ap. IW, reaffirming rule;
p. 484, payment for atolen property eon-
ifenae; Hallow v. SUte, 42 Tex. Cr. 287,
leging rteaJing of horse, hay, etc., refers
Qneat t. State, 24 Tex. Ap. 533, 7 8. W.
returned before proaeention, court must
;tatb.
linqacnt Slierlir for failure to pay over
lis bond; the breach of bond ia his tail-
r. Dwy«r, S9 Tex. llfl, giving judgment
of collection and nonpayment of taxes;
, determining case by principles decided
Beed t. State, 1 Tex. Ap. 0.
43 Tex. 367-382 NOTES ON TEXAS BEPOBTa
648
43 Tex. 367-370, POBTEB y. STATE.
Contradictory Statements are not Evidence of Crime where evidence
indicates others as offenders, and furnishes another motive for such
statements than concealment of guilt.
Approved in Rhodes v. State, 11 Tex. Ap. 574, reaffirming rule.
43 Tex. 371-372, DEITZ y. STATE.
The Court will not Notice Certificate of Prosecuting Attorney and
judge of lower court that venue was proven, unless apparent in state-
ment of facts.
Approved in Moore y. State, 2 Tex. Ap. 351, reaffirming rule;
Belcher v. State, 35 Tex. Gr. 169, 32 8. W. 771, reversing judgment
where venue not proven.
43 Tex. 372-374, STATE v. MOBBia
Where Original Papers are Ordered Sent Up ^^th Transcript thej
should be forwarded and their identity verified; it is improper to
make them part of transcript.
Approved in Malton v. State, 29 Tex. Ap. 529, 16 %. W. 423, Ken-
nedy V. State, 33 Tex. Cr. 191, 26 S. W. 79, and Carroll v. State, 24
Tex. Ap. 314, 6 S. W. 42, all refusing to consider original papers not
authenticated; Bodgers v. State (Tex. Cr.), 28 S. W. 948, refusing to
consider purported original affidavits because not certified by the
clerk or identified as original papers.
Bad Handwriting, if not Legible^ is not a ground for quashing an
indictment.
Approved in Hudson v. State, 10 Tex. Ap. 228, bad spelling does
not vitiate indictment if meaning is clear.
43 Tex. 374-376, McCAXTLEY v. STATE.
Indictment for Carrying Away Fence Bails will not lie nnder article
717, Penal Code, punishing cutting, destroying, and carrying awtfy
timber.
Approved in Wilson v. State, 17 Tex. Ap. 394, wood for fuel is not
"timber."
43 Tex. 376-378, BUBCH v. STATE.
A Judgment of Guilty will be Beversed in criminal case nnless
proof of venue appears in statement of facts.
Approved in Higbee v. State, 2 Tex. Ap. 408, and Moore v. State,
2 Tex. Ap. 351, both reversing judgment where venue not shown.
The Oath Set Out in Article 3029, Paschal's Digest, should bo given
to jury in every criminal case, and not the one prescribed in civil
cases.
Approved in Clampitt v. State, 3 Tex. Ap. 641, reaffirming rule;
Ewing V. State, 1 Tex. Ap. 363, record must show fact that jury
was sworn; Smith v. State, 1 Tex. Ap. 415, and Chambliss v. State,
2 Tex. Ap. 397, reversing judgment where proper oath not given.
43 Tex. 378-382, SHEFFIEIJ) y. STATE.
In Application for Continuance, where affidavit complies with all
statutory requirements, the granting of it is a matter of right, and
not one within discretion of court.
Approved in Swofford v. State, 3 Tex. Ap. 85, reaffirming rule.
Flight and Fabrication of Evidence are circumstances to be sub-
mitted to the jury with other facts; instruction that they are evi-
dence of guilt is error.
N TEXAS BEPOBTa 43 Tex. 382-404
123 Iowa, 122, 101 Am. St. Rep. 307, S8
ire ttate claimed defendant Qed the state
tiz T. State, 30 Fla. 282, II So. 617, de-
I by his eontradictoiy ttatementa.
i T. STATE.
Intent to Oonunlt Unrder, when evideoce
lieb several engaged, growing out of
art to instruct b» to diatinction between
reversible error.
State, 1 Tex. Ap. 752, reversing jndg-
leflne murder in instructions on trial for
T, STATE.
an Besponslble for appearance of ae-
reTersai of judgment from wbieb appeal
^isanee w^s given.
ate, 7 Tex. Ap. 57, reaffirining rale. Sea
e, 21 Tex. Ap. SH, 2 S. W. 807, rate not
article S7S, Bevised Code of Criminal
STATE.
Toneons be objected to for first time on
use for reversal if it relates to material
0 mislead jarj to defendant's injury,
ate, 31 Tex. Cr. 62, 20 3. W. 182, Qoode
Id Elam v. State, 16 Tex. Ap. 39, all
. State, 1 Tex. Ap. 182, reversing jndg-
tioDs given; Jenkins v. State, 1 Tex. Ap.
ere proper charge not given; Hajnes v.
ig judgment of conviction of aggravated
murder, thongh iostructinn erroneous as
! Tex. Ap. 418, reversing Judgment where
Rice V. State, 3 Tex. Ap. 455, reversin);
1 bej>ond law of ease; Tuller v. State, 8
[ment where jury not misled bj inappli-
tate, 10 Tex. Ap. 89, reversing judgment
y; Elam v. State, 16 Tex. Ap. 40, failure
Dse no ground for reverent; Johnson v.
J. W, 70, affirming judgment where ver-
leous charge; Barnett v. State, 42 Tex.
rsing judgment where defendant injured
ivis V. State, 28 Tex. Ap. 560, 13 8. W.
trivial defense not error.
Srldenca, if objected to at proper time,
itute, but if presented for flrst time on
int will not be reversed nnleei defeudaut
Charf^e that jury disregard testimony
untrue is charge upon the weight of
43 Tex. 390-404 (t^OTES ON TEXAS BEPOBTS.
550
Approved in Mace v. State, 9 Tex. Ap. 113, 114, Whaley t. State,
9 Tex. Ap. 308, Gardner v. State, 11 Tex. Ap. 273, Maddox t. State,
12 Tex. Ap. 434, and Davia v. State, 28 Tex. Ap. 556, 13 S. W. 995,
all reaffirming rule; Johnson v. State, 1 Tex. Ap. 614, reversing judg-
ment where charge given upon weight of evidence; Brown v. State,
2 Tex. Ap. 126, instruction to consider age of child witness, if un-
able to reconcile conflict in testimony, not instruction upon weight
of evidence; Grant v. State, 2 Tex. Ap. 168, and Gordon v. State, 2
Tex. Ap. 158, affirming judgment where defendant uninjured by
charge; Butler v. State, 3 Tex. Ap. 50, reversing judgment where
jury instructed to disregard part of testimony; Longley v. State, 3
Tex. Ap. 616, affirming judgment where defendant uninjured by
instruction; Haskew v. State, 7 Tex. Ap. 108, reversing judgment
where charge upon weight of evidence given; West v. State, 7 Tex.
Ap. 158, affirming judgment where defendant uninjured by instruc-
tions; Fury V. State, 8 Tex. Ap. 474, and Harrison v. State, 8 Tex.
Ap. 186, both reversing judgment where instruction upon weight
of evidence, and excepted to below; Vincent v. State, 9 Tex. Ap.
304, and Hudson v. State, 9 Tex. Ap. 156, 35 Am. Bep. 735, both
reversing judgment where instruction prejudicial to defendant; Henry
V. State, 9 Tex. Ap. 361, 362, reversing judgment where jury not
fully instructed; Burt v. State, 38 Tex. Cr. 452, 43 S. W. 348, 39 tu
B. A. 305, and Williams y. State, 10 Tex. Ap. 13, affirming judgment
where charge not prejudicial to defendant; Foster v. State, 11 Tex.
Ap. 109, and Elliston v. State, 10 Tex. Ap. 367, reversing judgment
where instruction prejudicial to defendant; Thomas v. State, 13 Tex.
Ap. 496, and Montgomery v. State, 13 Tex. Ap. 672, reversing judg-
ment where court refused new trial on ground of instruction upon
weight of evidence; Boe v. State, 25 Tex. Ap. 65, 8 S. W. 465,
Washington v. State, 25 Tex. Ap. 393, 8 S. W. 643, Davis v. Texas,
139 U. S. 655, 11 Sup. Ct. Bep. 676, 35 L. 302, and GiUy v. State, 15
Tex. Ap. 303, all affirming judgment where defendant not prejudiced
by instruction; Bennett v. State, 32 Tex. Cr. 219, 22 S. W. 685, an-i
Cook V. State, 22 Tex. Ap. 528, 3 S. W. 752, both affirming judg-
ment where defendant uninjured by instructions; Clark y. State, 34
Tex. Cr. 121, 29 S. W. 383, and Stockholm v. State, 24 Tex. Ap.
602, 7 S. W. 339, both reversing judgment where charge prejudicial
to defendant; Green v. State, 32 Tex. Cr. 300, 22 S. W. 1095, harm-
less error no ground for reversal; Trammell v. State, 1 Tex. Ap. 125,
on point that error in fundamental matter justifies reversal though
no exception taken; Early v. State, 1 Tex. Ap. 262, noticing excep-
tions not urged at motion for new trial. See notes, 72 Am. Dec. 543;
99 Am. Dec. 132, 133.
Party Making Objection to Judicial Proceeding prejudicial to him
at proper time is entitled to have his objection more favorably con-
sidered than if he had delayed.
Approved in Goode y. State, 2 Tex. Ap. 524, and Davis y. State,
28 Tex. Ap. 559, 13 S. W. 996, both reaffirming rule.
The Jury are tbe Ezdusiye Jodges of the Facts in every criminal
case.
Approved in Searcy y. State, 1 Tex. Ap. 444, reaffirming rule;
Fisher v. State, 4 Tex. Ap. 185, instruction that jury may disregard
a part or all of a witness' testimony, if not error, is obnoxious; .John-
son V. State, 9 Tex, Ap. 559, Litman v. State, 9 Tex. Ap. 462, an-J
Knight y. State^ 7 Tex. Ap. 209^ reversing judgment where court
TES ON TEXAS REPORTS. « Tsi. M4-414
ieve or diBbelieve all or k portion of any wit-
He Court mtut Cloarly dtarge Jnry as to Uw of
I V. State, 1 Tez. Ap. 27, omiMion to give al-
jnry in criminal caee error.
>ii8 as are AppUcablo to every legitimate deduc-
draw from facts are necessary .
y V. State, 9 Tex. Ap. 307, Cesurs v. State, 1
T. State, 2 Tez. Ap. 47, and Evang v. State,
reaffirming rule; WaiBon v. State, 3 Tex. Ap.
int where law of ease not given jury; Long v.
t, reversing judgment wbere record ihowB no
y; Jones v. Stale, 5 Tex. Ap. 133, affirming
of ease given to jory; Smith v. State, 7 Tex.
irt not 10 instruct upon evidence showing pur-
ift; Heath v. State, 7 Tex. Ap. 466, reversing
not fully instructed; Holmes v. State, 11 Tez.
Igment where fall 1b.w of case not given jury;
Tex. Ap. 446, 3 S. W. 113, reversing jadgmeot
n fully given to jury; Teague v. State (Tex.
Dt necessary to do bo where from the evidence
probability of the charge on the point affecting
V. State (Tex. Cr.), 43 8. W. 106, instance
itive to manBlaughter and self-defense were held
side ease. See note, 79 Am. Dec. 416.
IE T. McLANS.
[ndictmeat will not He against attorney at law,
ed by him is not paid over.
Rep. 45.
e Converse, 42 Fed. S20, sustaining judgment
re he plead guilty to embezzlement.
hERS T, STATE.
il will PTMmne Proper Cbarge atven in writing,
iript, where judgment recites that jury were
ird V. State, 1 Tex. Ap, 450, presuming proper
0 particular error a a signed.
tot PiopMly Atttlientlcated, the cause will not
1 clerk will be instructed to sond up complete
nticated.
•J V. State, S Tez. Ap. 192, Sweeney v. State,
loekwood V. State, 1 Tez. Ap. 751, all reafSrm-
ind Anotlier seen around burglarized store and
}ods but knife found on other and knife found
e justifies verdict for burglary.
. (n. s.) 218.
Tl: y, CLAYTON'.
g Ofieuae ITnileT SUtnt« which excepts certain
must show by negative averments that defend-
;biii any of such exceptions.
43 Tex. 414-425 NOTES ON TEXAS EEPOKTS.
552
Approved in Eice v. State, 37 Tex. Cr. 37, 38 S. W. 802, reaffirmiDg
rule; Lewis v. State, 2 Tex. Ap. 29, traveler on horseback is not
exempt from penalty for carrying weapon; Colchell v. State, 23
Tex. Ap. 584, 5 S. W. 140, quashing indictment for playing dice,
failing to negative exception of playing in private house; Snearley
V. State, 40 Tex. Cr. 516, 52 S. W. 551, indictment for selling liquor
under local option law must aver party is not a druggist selling
tinctures, etc., authorized by law; Williamson v. State, 41 Tex. Cr.
464, 55 S. W. 570, reaffirming rule in prosecution for selling liquor
on a physician's prescription in a local option district.
The Governor may by Proclamation revoke a former proclamation
exempting inhabitants of certain counties from operation of law
against carrying weapons, and revive such law.
Approved in Chaplin v. State, 7 Tex. Ap. 89, reaffirming rule.
43 Tex. 414-415, CONET T. STATE.
Instruction on Trial for Aggrayated Aasanlt to return verdict of
guilty if they find defendant inflicted serious bodily injury on party
assaulted is error, when that not alleged as ground of aggravation.
Approved in Williams y. State, 8 Tex. Ap. 368, reaffirming rule;
Williams v. State, 1 Tex. Ap. 95, conviction for rape by force not
sustained by proof of rape by fraud; Tooney v. State, 5 Tex. Ap.
192, held error to instruct as to intent to rob where not alleged in
indictment for murder; Kennedy v. State, 9 Tex. Ap. 403, instruc-
tion to find defendant guilty of offense not alleged error; Bandle
V. State, 12 Tex. Ap. 252, instruction to find defendant guilty of
adultery upon proof of habitual carnal knowledge error, where charged
with cohabitation.
43 Tez. 416-420, BUFOBD y. STATE.
Applicatioa for Change of Venue on ground of combination and
prejudice made and supported in terms of statute by affidavits can-
not be defeated by counter-affidavits not showing statements in
application untrue.
Approved in Buie v. State, 1 Tex. Ap. 454, granting change of venue
after hearing counter-affidavits failing to disprove averments of
application; HouiUion v. State, 3 Tex. Ap. 544, admitting counter-
affidavits on application for change of venue.
Distinguished in Davis v. State, 19 Tex. Ap. 221, explaining article
583, Code of Criminal Procedure, regulating mode of contesting ap-
plication for change of venue.
43 Tex. 421-425, JACKSON y. STATE.
To Sustain Conviction for Offering to Bribe Witness, it is unneces-
sary to allege that indictment had been found for criminal charge,
about which it was expected witness might testify, or that process
had issued for witness.
Approved in Scroggins v. State, 18 Tex. Ap. 301, sustaining indict-
ment for offering bribe to witness to avoid service of subpoena;
State V. Bailer, 26 W. Va. 99, 53 Am. Bep. 72, offering bribe to wit-
ness was misdemeanor at common law; Brown y. State, 13 Tex. Ap.
359, approving leading case as one to follow in drawing indictment
in bribery cases. See note, 85 Am. Dec. 501.
Penal Code, Section 310, makes it an offense to offer to bribe a wit-
ness to disobey legal process.
See note, 25 L. B. A. 439.
f TEXAS BEPORXa. 43 Tex. 425-454
rATE.
ited for Thaft and On* Pat on Trial,
ed was only present mm hired hand of
ve, in order to convict upon eTidence
! stolen property, that defendaot knew
State, 1 Tex. Ap. 113, reversing judg'
oeentlj' by purchase into poiseesion of
e, 5 Tex. Ap. 530, inatniction that fact
id no ezeuee for theft if he had knonl-
, not error; Smith v. State, 7 Tei. Ap.
He court refused to instruct as to lia-
of stolen property; Anderson v. State,
istruetion contained in rule; Willeye v.
W. 573, held error to inetrnct jury that
without written bill of sale, ia prima
ElAcratly Stolen Property raiaes presump-
I is guilty of the theft.
:ate, 17 Tex. Ap. 87.
de^ state cannot prove possession by de-
:le than those described, nnless proven
te, 18 Tex. Ap. 2S7, reversing judgment
other stock admitted, where not proven
V. O'Donnell, 36 Or. 227, 61 Pac. 894,
IX. Ap. 417, 6 3. W. 318, both reversing
( other thefts admitted. See note, 62
1006; 62 L. B. A. 344.
. STATE.
Any Jndldal Act on the Sabbath.
State, 1 Tex. Ap. 218, 28 Am. Bep. 404,
ed on Sand«y.
lAjr in case submitted to jury oa last
■ict court is a nullity,
leman, 2S Tex. Ap. 489, 13 S. W. 7S4,
:. Cr. 14, 29 8. W. 480, both reaffirming
Tex. Civ. 299, 59 S. W, 49, applying rule
Begins m a Oertain Monday, and con-
of weeks thereafter, aueh court ends at
of last week of term.
tleman, 24 Tex. Civ. 299, 5fl 8. W. 48,
:. Cr. 13, 29 B. W. 480, both reaffirming
State, 17 Tex. Ap. 87, miscited.
[LI.E T. EASSE.
e, or Annnl a Final Judgment regularly
jurisdiction, after adjournment of term
43 Tex. 454-467 NOTES ON TEXAS REPORTS.
554
Approved in Rogers y. East Line etc. Co., 11 Tex. Civ. 110, 33
S. W. 312, reaffirming rule; Holland v. Preston, 12 Tex. Civ. 588,
34 S. W. 977, a direct proceeding is nece&sarj to alter or amend
final judgment at subsequent term; Hedgecoze v. Connor (Tex. Civ.),
43 S. W. 323, error of court in pronouncing or rendering a judgment
can only be corrected after term by appeal or writ of error.
When Judgment or Decree of Lower Court in civil cases reversed,
supreme court shall render such judgment as should have been
rendered below, except where for uncertainty as to some matter it
is necessary to remand case, and decision rendering proper judgment
is final.
Approved in Mellor y. Gilmore, 33 La. Ann. 1405, and Watts v.
Holland, 56 Tex. 58, reversing and remanding case where errors
below such that verdict cannot stand; Gunn v. Union R. R. Co., 27
R. I. 337, 62 Atl. 125, 2 L. ik. A. (n. s.) 362, upholding statute
authorizing supreme court to direct judgment without further trial
by jury.
See note, 2 L. R. A. (n. 0.) 364.
Jurisdiction is the Power to hear and determine a cause.
Approved in Blevins v. Morledge, 5 Okl. 145, 47 Pac. 1069, w4iere
reference made to three referees and one failed to qualify, report
by other two is valid.
43 Tex. 454-455, POAOE ▼. STATE.
An Unrecorded Brand ie admissible to aid in proving identity of
stolen animal, the title being established by testimony.
Approved in Johnson v. State, 1 Tex. Ap. 345, Fisher y. State, 4
Tex. Ap. 183, Hutto v. State, 7 Tex. Ap. 47, Maddox v. State, 12
Tex. Ap. 433, Gregory v. Nunn (Tex. Civ.), 25 S. W. 1084, State v.
Cardelli, 19 Nev. 329, 10 Pac. 440, and Territory v. Chavez, 6 N.
M. 459, 30 Pac. 902, all reaffirming rule. See note, 11 L. R. A. (n. s.)
89.
Although Guilt of Defendant not absolutely and conclusively
proved, held, that it could not be said verdict was without evidence.
Approved in Banks v. State, 7 Tex. Ap. 592, reaffirming rule.
Miscellaneous. — Reed v. State, 16 Tex. Ap. 590, miscited.
43 T^z. 468-467, XIMENES y. XIMENES.
This Court will Enter a Judgment of the court rendered at a
former term nunc pro tunc.
Approved in Cameron y. Thurmond, 56 Tex. 28, reaffirming rule;
Rogers v. East Line etc. Co., 11 Tex. Oiv. 110, 33 S. W. 312, court
must confine judgment nunc pro tunc to precise order made at former
term.
This Court will Look to Opinion and Docket as part of record to
ascertain propriety of entering judgment of former term nunc pro
tunc.
Approved in Swearingen v. Wilson, 2 Tex. Civ. 160, 21 S. W. 76,
entry on motion docket sufficient to enable party to have order show-
ing action thereon entered nunc pro tunc.
Wliere Entry of Judgment at a Former Term appears satisfactorily
from the records not to have been properly entered, the court may
order its correction.
Approved in Alexander v. Barton (Tex. Civ.), 71 S. W. 73, where
orders and proceedings of probate court omitted from minutes^ court
3 ON TEXAS BEP0BT3. 13 Tex. 46T-189
lunc pro tunc; Acconsi t. Stoweis FuTnituie
1105, coart eacnot eater order for judgment,
t new trial nunc pro tunc in vaealion] Camo-
<z. 30, itstement of judge appended to bill
to warTBDt ameodment of Judgment; Blum
, 380, refusiag motion to correct judgment
memorandum in docket; WlUtaker v. Qee,
lame in judgment where shown by docket
mistake; Missouri etc. Rj. t. HajiDea, S2
correcting amount of judgment where error
key V. Behrena, 7S Tei. 495, 12 S. W. 0S1,
uffieient to oorreet evror in judgment; Cheat'
B8, 13 8. W. 852, correcting judgment where
; Plasters v. State, 1 Tex. Ap. 684, entry on
; record; Evt-na v. Smith, 22 Tex. Civ. 473,
lence insufficient to correct record at subse-
atum (Tex. Civ.), 23 S. W. 313, court may
of judgment nunc pro tunc at aubscquent
[ns. Co. V. Wagley (Tex. Civ.), 38 S. W, SB8,
petition where there waa a variance with
1 tune; Winter v. Texas Land etc. Co. (Tex.
order of judge's docket is sufficient basis
if judgment. See note, 85 Am. Dee. 132.
7. STATE.
belonging to different persons flom ae«as-
secuted under one indictment.
State, 7 Tex. Ap. 554, indictment maj con-
ing same offante.
N T. STATE.
mulcted of An; Cbade of Homicide unless
tiona of it, are found and sofSciently identi-
, State, 14 Tex. Ap. 636, reversing judgment
d; Gay v. State, 40 Tex. Cr. 262, 49 S. W.
3, 38 Tex. Cr. 892, 44 8. W. 995, identity .if
ii by circumstantial evidence. See notes,
. Dee. 253, 258, 257; 7 L. B. A. (d. s.) 183:
' ▼. STATE.
issninlug or Pietending to be a judicial or
a deemed guilty of misdemeanor.
. State, 8 Tex. Ap. 64, peace officer in dis-
ipt from penalty for carrying pistol. See
r T. STATE.
'MB an AdmlsBlldB where under them stolen
fh no conviction can be had thereon unless
ither testimony to be true.
State, 8 Tex. Ap. 514, Walker v. State, S
Stale, 11 Tex. Ap. 362, Allison v. State,
7. State (Tex. Cr.), 23 S. W. 688, Beeves t.
!. 520, and State v. Douglass, 20 W. Va. 787,
43 Tex. 490-503 NOTES ON TEXAS EEPORTS. 556
all Teaffirming rule; Harris v. State, 1 Tex. Ap. 79, code preseribev
same rules regarding confessions as common law; Speights y. State,
1 Tex. Ap. 554, admitting confession as to other stolen property than
that named in indictment, for purpose of establishing guilt; Weller
V. State, 10 Tex. Ap. 212, 213, admitting confession of accused,
obtained by promises of protection, where found to be true; Brown
V. State, 26 Tex. Ap. 314, 9 S. W. 614, admitting confession where
corroborated; Yates v. State, 47 Ark. 174, 1 S. W. 65, admitting
confession as to locality of stolen, property where property found.
See note, 53 L. B. A. 403.
43 Tex. 490-493, LONaLITS' V. STATE.
Plea of Former Acquittal cannot avail when based upon a dis-
missal of former proceedings by district attorney.
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 reaffirming
rule; Mays v. State, 51 Tex. Or. 34, 101 S. W. 234, where criminal
prosecution dismissed by prosecution after state had introduced one
witness because defendant had not pleaded, dismissal no bar to new
information.
See note, 116 Am. St. Bep. 460.
Whether a Threat was Seriously Made is a question of fact for
t he jury.
Approved in Thrasher v. State, 8 Tex. Ap. 284, 285, and Tynes y.
State, 17 Tex. Ap. 127, all reaffirming rule.
13 Tez. 494-499, CIJNE v. STATE.
To Oonstitute Swindling, title to property must be obtained by
accused, or pass from injured party; where possession is obtained
by false pretenses, or taking be with intent to deprive owner, the
.)ffense is theft.
Approved in Powell v. State, 44 Tex. Or. 279, 70 S. W. 969, follow-
ing rule; Bink v. State, 50 Tex. Or. 453, 98 S. W. 250, in trial for theft
in another state and bringing stolen property here, eviden-ce showing
offense was swindling is insufficient under Penal Code, articles 951,
052; Parchman v. State, 2 Tex. Ap. 243, conviction for theft may be
had for knowingly receiving stolen goods; Bichardson v. State, 2
Tex. Ap. 322, tautology and repetition do not vitiate indictment;
Pitts V. State, 5 Tex. Ap. 124, distinguishing between offense of
swindling and theft; Hudson v. State, 10 Tex. Ap. 230, instruction
that where property taken with intentt to defraud owner, offense of
theft complete, not error; Hirshfield v. State, 11 Tex. Ap. 217, law
of swindling cannot take case out of law of theft; Sims v. State,
28 Tex. Ap. 447, 13 S. W. 654, defining swindling and theft. See
note, 25 Am. St. Bep. 391.
43 Tez. 600-603, STATE ▼. "WILIJAMSON.
Bad Spelling will not Vitiate an Indictment where the meaning
is clear.
Approved in Evans v. State, 34 Tex. Cr. Ill, 29 S. W. 267, re-
affirming rule under similar facts; Somerville v. State, 6 Tex. Ap.
438, sustaining indictment where bad spelling did not obscure
meaning; Hudson v. State, 10 Tex. Ap. 228, sustaining indictment
where, spelling bad but meaning unmistakable; Jones v. State, 25
Tex. Ap. 622^ 8 Am. St. Bep. 450, 8 S. W. 802, quashing indictment
a ON TEXAS EEPOBTS. 43 Tex. 503-517
hy bad spelling; State y. Ln Sing, 34 Mont.
, upholding iiufonnation for murder in first
ly" Bpelled "delibeiatedly."
A Berlfla Action of Lower Court overruling
D absence of bill of exceptions.
State, 1 Tex. Ap. 44, and Hollia v. State,
Rrming mle.
I not of SnbstMiCfl must be taken befora
. State, 3 Tex. Ap. 279, reaffirming mle.
jL t. state.
Only Where Deliberats Intention to take
ity upon deeeaaed.
'. State (Tex. Cr.), 5S 8. W. 79, reaffirming
ex. Ap. 603, affirmiog judgment of conviction
where malice ah own.
BzcnMi nor AgsraTatea Act Done; atiU it
:ennining physical ability, mental condition,
lets done, as well aa purpose and intent.
, State, 11 Tex. Ap. 562, Wenz v. State, 1
e, I Tex. Ap. 494, 2S An. Bep. 418, Haueton
2, 14 S. W. 364, State t. Zorn, 22 Or. 600,
;h T. State, 2 Tex. Ap. 396, all adoiitting
to determine degree of murder; Ex parte
16 8. W. 344, not error to ezclnde evidence
.es, 78 Am. Dee. S2»; 40 Am. Bep. 564; 3«
L. B. A. 33, 34.
OlTcnniBtancaa MaWng sming HmnsUiiglit«r,
Idll one, accidentally hills aaother against
liee, such killing ie only manslenghter.
1 V, State, 13 Tex. Ap. 401, killing child in
uders husband guilty of murder in second
te, 22 Tex. Ap. 370, 3 S. W. 702, and Musick
, 18 S. W. 95, both holding that killing of
[ided is murder in second degree. See note,
BLL V. STATE.
emle Motion for Obsaga of Vontu where
ith, and where no injustice appears done
State, 48 Tei. Cr. 587, 89 S. W. 976, where
nue not supported by affidavit of two com-
nt, and court did not err in refusing post-
aflSdavits; O'Neal v. State, 14 Tex, Ap. 58!t,
or change of venue not complying with
Satlsfled of Tmtli of defsndant's affidavits
re affiants sworn and examined regarding
3d, and examine other persons as to truth
State, 1 Tex. A p. 454, reaffirming rule;
!x. Ap. 544, admitting counter- affidavits in
43 Tex. 518-522 NOTES ON TEXAS REPORTa 558
It Is Proper in Capital Case to require parties to pass npon eaeh
juror as called.
Approved in Wasson t. State, 3 Tex. Ap. 477, reaffirming rule.
Miscellaneous. — Mathews v. State, 42 Tex. Or. 53, 58 S. W. 92, cited
as sustaining the practice of setting aside order of discharge when
reassembling grand jury after their discharge.
43 T^z. 618-519, STATE V. HUGHES.
Indictment Cliarglng Defendant With Offering Party Money to
absent himself from court, and not bo witness against defendant
before grand jury in district court, does not charge offense of offer-
ing bribe under article 1934, Paschal's Digest.
Distinguished in Scoggins v. State, 18 Tex. Ap. 301, distinguished
where bribe offered to witness to avoid service of process; People
V. Markham, 64 Cal. 159, 161, 49 Am. Rep. 702, 703, 30 Pac. 621, 622,
police officer receiving money not to arrest a person is guilty of
accepting bribe. See note, 97 Am. Dec. 715.
43 Tex. 619-521, LANCASTER v. STATE.
Indictment Cliarging That Defendant Did Seep and exhibit gaming
bank, called monte, for purpose of gaming, not bad for duplicity.
See notes, 58 Am. Dec. 244; 94 Am. Dec. 258.
Indictments may Charge Conjimctiyely Acts constituting an offense
which are treated disjunctively by statute, when statute makes two
or more acts connected with same transaction indictable.
Approved in Roaoh v. State, 8 Tex. Ap. 490, and Hart y. State^
2 Tex. Ap. 42, both reaffirming rule; Countryman y. State, 52 Tex.
Cr. 24, 105 S. W. 181, indictment charging carrying of knuckles "on
or about" instead of "on and about" defendant's person, is insuf-
ficient; Davis V. State, 23 Tex. Ap. 639, 5 S. W. 150, reversing judg-
ment where indictment connects offense* with word "or" instead
of "and."
>y
43 Tex. 521--622, STATE V. SIMa
Omission of Words "against the peace and dignity of the state
in conclusion of indictment is fatal, whether excepted to below or
not.
Approved in Cox y. State, 8 Tex. Ap. 307, 34 Am. Rep. 748,
reaffirming rule; Wade v. State, 52 Tex. Cr. 620, 108 S. W. 678, in-
dictment for violation of local option law alleging particular elec-
tion and publication under it cannot be amended by striking out
cnich allegations; Calvert y. State, 8 Tex. Ap. 539, and Holden v.
State, 1 Tex. Ap. 234, both quashing indictment omitting words
"against the peace and dignity of the state"; Hardin v. State, 106
Ga. 387, 71 Am. St. Rep. 272, 32 S. E. 366, quashing indictment
where conclusion varies from that set out in statute.
Distinguished in Saine v. State, 14 Tex. Ap. 145, indictment not
commencing "In the name and by authority of the state of Texas"
fatally defective.
Indictment not in Confonnity to Statute is fatally defective,
whether specially excepted to or not.
Approved in State v. Tnolson, 21 Nev. 432, 32 Pac. 935, objec-
tion t'hat indictment does not state facts sufficient to constitute
public offense may be taken for first time on appeaL
m ON TEXAS KEP0BT8. 13 Tex. 525-560
IAS T. STATE.
Jrdar Oruid Jury to BMBaemUe after dig-
caDDot order iuuance of Teaire to enable
B, after that for the tetm discharged.
'B T. State, 42 Tex. Cr. 53, 54, 58 S. W. 92,
to TeaBsemble. See note, 27 L. R. A. 788.
latlon of Orand J1117 can odIj be made by
rganization, unleu tbey come under motion
[ictment after found.
D T. State, 2 Tex. Ap. 556, and Reed v. State,
at time of organization ia the only mode of
in of JU17. See note, 12 Am. .St. Rep. 919.
B T. BUIK
ought tor Peijniy upon testimony of one wit-
evidence, mcb corroborating evidence must
'I adduced by the state.
ky v. State, 13 Tex. Ap. 441, sworn answer
lee statement made, cannot be used as cor'
ee note, S5 Am. Dee. 499.
B v. State, 24 Tex. Ap. 721, 722, 7 S. W. 44,
Perjury, falsity of defendant's atatements re-
lative facta may be shown. Distinguished in
Tex. Ap. 438, quashing indictment omitting
srjury-
i r. oBirriN.
«ilt Bxpomire, under article 2030, Paachal'l
barged in words of statute.
Perry, 117 Iowa, 468, 91 N. W. 767, upholding
m for indecent exposure to give police judge
Me charge of perjury for false testimony at
1; State V. Banguess, 106 Iowa, 109, 76 N. W.
ent in words of statute; Comtponwcalth v.
3, 41 N. E. 134, 20 h. R. A. 81, indictment
}k must allege parts relied upon; Boseu v.
S. 45, IS Sup. Ct. Bop. 480, 40 L. 611, dis-
ty holding, where matter constituting offense
in pleadings, after part pleaded, defendant
-ticulara.
IE V. OLAPP.
Between Vordlct and Jndgmmit cannot be
tien judgment offered as support to sheriff's
. Beyer, 51 Tex. 345, execution referring to
iterest, which does not, not sufBcient irregu-
,; Bradford t. Rogers, 2 Po»ey U. C. 80, ad-
to prove Christian name of party where
. of Hnaband and VU« by wife doea not bind
ty interest in property for payment of lega-
V. Huyter, 50 Tex. 253, admitting joint will
of husband; Black v. Richards, 95 Ind. 189,
43 Tex. 550-560 NOTES ON TEXAS EEPOBTS. 660
admitting joint will of tenants in common to probate upon death of
both; Betts v. Harper, 30 Ohio St. 641, 48 Am^ Bep. 479, admittin^r
joint will to probate upon death of one party and admitting it again
upon death of other. See notes, 68 Anu Dec. 408; 38 L. B. A. 290.
Agreements to Make Mutual Wills are valid.
Approved in Jordan v. Abney, 97 Tex. 304, 78 S. W. 489, uphold-
ing agreement between two persons that one will at death leave
property to other.
43 Tex. 660-652, GRAHAM ▼. STATE.
Failure of Becord to Show That SubstltntlQii of lost indictment
waj made by court's permission is fatal on appeal.
Approved in Carter v. State, 41 Tex. Or. 610, 58 S. W. 80, and
Clampitt V. State, 8 Tex. Ap. 641, both reaffirming rule; Turner
V. State, 7 Tex. Ap. 597, record must show that substitution was
in fact made; Miller v. State, 40 Ark. 497, dissenting opinion, ma-
jority sustaining conviction upon copy of record.
Distinguished in Magee t. State, 14 Tex. Ap. 376, fact that court
ordered clerk to file substituted indictment and that it was filed on
day of motion sufficient to show substitution. See note, 86 Am. Dee.
729.
43 Tex. 663-654, JOHNSOK T. McOUTOHINGHi.
Judgment by Default Against Garnishee cannot be sustained where
affidavit for garnishment fails to show rendition of judgment against
defendant or that garnishee is a resident of the county wherein the
proceedings are had.
Approved in Harrington v. Edrington (Tex. Civ.), 38 S. W. 246,
affidavit for garnishment must ehow residence of garnishee.
43 Tex. 664-656, STATE y. UMDEK8T00K.
Indictment for Perjury Consisting of False Oath in writing, which
fails to set forth false oath in words or substance, is fatsilly de-
fective.
Approved in Gabrielsky v. State, 13 Tex. Ap. 438, quashing in-
dictment omitting proper assignment of perjury. See notes, 85 Am.
Dec. 495, 497; 124 Am. St. Bep. 665, 670.
Distinguished in State v. Terline, 23 B. I. 533, 91 Am. St. Bep.
650, 51 Atl. 205, upholding indictment for perjury though it failed
to set out words of foreign language used by defendant in giving
false testimony, where it gives in English substance of such testi-
nwny.
43 Tex. 666>667, JOHNSON Y. BABTHOLD.
Where Sheriff's Betum of Service shows party served has the
same name of the defendant in the writ, it is sufficient.
Beaffirmed in Brooks v. Powell (Tex. Civ.), 29 S. W. 812.
•
43 Tex. 667-660, PAB80NS Y. KEYS.
Infants are Liable for Necessaries purchased by them when not
supplied by parent or guardian, though not bound to pay particular
sum; whether articles were necessaries and agreed price fair are
questions for the court.
Approved in Jones v. State, 31 Tex. Cr. 256, 20 S. W. 578, re-
covery for necessaries is upon implied contract based upon actual
value of goods; Peck y. Cain, 27 Tex. Civ. 40, 63 S. W. 178, contract
0TE8 ON TEXAS BEPOETS. 43 Tei. 560-570
'□r TBH^iinable value of neeessariea. Se« notes,
; 12 L. E. A. 869, 880; 5 L, R. A. 176.
isksy T. WillianiB, 74 Tex. 297, 11 S. W. 1101,
ant mSkj make exprese contract for neeessariea,
■najr be reduced where uoreaBonable.
«r ITlce Of Neceflsarln sold defendant during
proof ia upon defendaot to abow minor was
r parent or guardian, whea that fact lelied on
St. Rep. 649.
BBS ▼. PEKK7.
Its Facs may, hj parol BTidence, be proven to
as a mortgage.
Ban T. ElliB, 79 Tex. 400, 15 S. W. 394, reaffirm-
. Stafford, 29 Tex. Civ. 76, 71 8. W. B86, whero
sold on execution and agreed that A should buv
e as secnritj for payment to tiim by B of amount
not constructiTe trust; Walker t. McDonald, 49
parol evidence to explain intention of parties to
V. Milliken, 59 Tex. 425, declaring deed a mort-
ances sbow that was its porpose; Clark v. Haney,
a. Rep. 539, admitting parol evidence to provo
f trust; Baker v. Collins, 4 Tex. Civ. 524, 23 8.
Shelby, 33 Tex. 409, IS 8. W. Sll, both declaring
mortgage according to intention of parties; Smith
Civ. 193, 27 S. W. 778, holding sale of stock a
I so intended; McKeen v. James (Tex. Civ.), 23
where facta were sufficient to prove an absolute
mortgage; Williams v. Chambers (Tex. Civ.), 26
There absolate eonveyaneo of homestead was held
STEB ▼. STATE.
o-sxamlned at Jury's Beqnast after their retira-
^otlrt to direct witness to confine testimony to
at and to quote former language will, when wit-
1 testimony, be ground for reversal of judgment
)nson V. State, 7 Tei. Ap. 117, reaffirming rule,
SNAQE T. BERKT.
ney to Sell IiR&d In ArkansM held not to confer
n Texas.
V. Berry, 53 Tex. 633, holding power of attorney
cient on third appeal.
icupancy and cultivation reviewed and held that
plaintiff's adverse possession was against weight
8 T. Berry, 53 Tex. 634, setting aside verdict
ifBcient; Sellman v. Hardin, 5S Tex. gS, uphold-
]g claim of adverse possession.
snaot In Possestlon are admissible to show ebar-
is V. Wilson, 2 Tex. Civ. 649, 21 a W. 788, re-
—38
43 Tex. 570-578 NOTES ON TEXAS REPORTS, 562
Miscellaneous. — Cited in Ivey t. Harrell, 1 Tex. Civ. 230, 20 S. W.
775, another phase of same case.
43 Tex. 570-676» BOSEBOROUGH ▼. STATE.
New Trial Should not be Granted for Incompetency of Juror, when
not shown incompetency was unknown at time of acceptance or
could not have been known by proper inquiry.
Approved in O'Mealy v. State, 1 Tex. Ap. 181, Trueblood v. State,
1 Tex. Ap. 651, Lester v. State, 2 Tex. Ap. 446, Allen v. State, 4
Tex. Ap. 585, and Baker v. State, 4 Tex. Ap. 229, all reaffirming
rule; Brill v. State, 1 Tex. Ap. 578, previous service of juror in
former trial no ground for reversal where juror swore he was un-
influenced by former service; Franklin v. State, 2 Tex. Ap. 9,
refusing to reverse judgment where grand juror finding indictment
acted as petit juror, where diligence not shown to discover former
service; Matthews v. State, 6 Tex. Ap. 40, law prohibiting summoning
of tales jurors within courthouse or yard merely directory; Randell
V. State (Tex. Cr.), 64 S. W. 256, failure of defendant to ascertain
whether juror householder cannot be taken advantage of on appeal;
Frye v. State, 7 Tex. Ap. 98, summoning juror in courthouse yard no
ground for reversal; Sewell v. State, 15 Tex. Ap. 63, quaere whether
question of incompetency of juror can be raised for first time on
appeal; State v. Coleman, 17 S. D. 619, 98 N. W. 181, under Code
Cr. Proc, sec. 430, disqualification of juror is not ground for new
trial where no challenge interposed. See note, 18 L. B. A. 475.
Distinguished in Armendares v. State, 10 Tex. Ap. 45, distinguished
where jurors were incompetent to eit in any case.
Mere Union of Limited Number of independent circumstances,
each of imperfect and inconclusive nature, no ground for conviction.
Approved in Porter v. State, 1 Tex. Ap. 399, reaffirming rule.
Miscellaneous. — Williams v. State, 3 Tex. Ap. 131, referred to
historically in stating assignments of error presented to appellate
court.
43 Tex. 576-577, JOHNSON ▼. STATE.
In Eyery Assault Tbere must be Intent to Injure, coupled with act
which must at least be beginning of attempt to injure.
Approved in Cato v. State, 4 Tex. Ap. 88, sustaining conviction
for assault with pistol though defendant did not shoot nor was he
prevented; Young v. State, 7 Tex. 77, reversing judgment wher^ act^
merely indicative of preparation; Hollister v. State, 156 Ind. 258,
59 N. E. 848, holding evidence insufficient to show assault with in-
tent to rape where accused, while selling medicines, asked offensive
questions and followed woman into room and thence onto front
porch; State v. Daniel, 136 N. C. 577, 103 Am. St. Bep. 970, 48 S. £.
546, where in prosecution for assault evidence showed only use of
profane and abusive words, instruction that if defendant cursed
prosecutor and ordered him to come to him and prosecutor obeyed
through fear, defendant guilty, is erroneous.
43 Tex. 677--578, COLLINS ▼. STATE.
Property in Stolen Qoods must be averred in indictment to be in
right owner or some excuse given for its omission.
Approved in Warrington v. State, 1 Tex. Ap. 174, where allega-
tion unnecessarily minute, evidence must correspond to allegation;
Marwilsky v. State, 9 Tex. Ap. 379, reversing judgment where alle-
)N TEXAS BEPOBTS. 43 Tu. 579-588
r. STATE.
DlBinlHliig UoUon to redace ball Is not
tn appe&l will lia.
I Neb. 507, 56 N. W. 1010, order of dii-
DOt be diatuTbed under babeu corpni
DreasoDable.
N V. STATE.
Ubertf Wltb Person of Femala, however
;o commit rape hj force, fiand, or tfareats,
roilty.
te, 4 Tez. S7&, reverriDg jadgment where
■howc; EouBe t. State, 9 Tex. Ap. 55,
lefendant did not take hold of complain-
te, 9 Tez. Ap. 5eS, mere poisibilitj of
rictioD of rape; Henkel t. State, 27 Tez.
I give role in imitnictian; Ellanberg t
8. W. 990, reversing jadgment where
used; Price t. State, 36 Tez. Cr. 146, 3S
:iit wbere do force proven beyond reason-
ate, 29 Fla. 492, 10 So. 731, refasal te
must be proven to aDetaiD eoaviction for
'. State, 7 Tez. Ap. 34S, atatnte makes
r ten yeart of age ipao facto rape. Sea
imated where aaaaQlt made upon k woman
!, though force uaed may not equal that
OffBDBe.
:ate, 1 Tex. Ap. 30, nstaining conviction
; Qeorge V. State, 11 Tez. Ap. 97, mate
icted of rape; State v. Fulkerson, 97 Mo.
sre man who waa in house with strange
put hand on door and on ber starting to
and followed her through part of house,
iilKB T. STATE.
dch Appeal Lie* must ebow aeeuaed eon-
iry, giving amount or duration and place
nent and verdict.
State, 1 Tez. Ap. 65, dismissing appeal
lelow; Cboate r. State, 2 Tez. Ap. 302,
ord does sot state final judgment; Butler
LsmUaing appeal where no fiual judgment
'ez. Ap. 47, "judgment accordingly', tazing
," not final judgment; Darnell v. State,
, and Labbaite v. State, 4 Tez. Ap. 17U,
fiual judgment below. See note, 60 Am.
43 Tex. 588-616 NOTES ON TEXAS EEPOETa 5M
43 Tax. 588-591, SINGLETABY Y. HILL.
Special Matters of Defense may be specially pleaded.
See note, 86 Am. Dec. 669.
43 Tex. 591-598, McAFEE Y. BOBEBTSON.
Upon Failure of Performance by one party to an executory con-
tract of sale, the other may sue for specific performance or abandon
contract and sue for recovery of land.«
Approved in Keys v. Mason, 44 Tex. 144, reaffirming rule.
43 Tex. 598-601, ALSITP Y. AU.EN.
Where Material Allegations of Petitioa for injunction were not
denied, and notice of appeal was given by defendants, after denial
of motion to dissolve injunction, it was proper for the court to per-
petuate the ' injunction, without the intervention of a jury.
Approved in Junction etc. Incorporation v. Trustee, 81 Tex. 152,
16 S. W. 743, reaffirming rule. See note, 31 L. B. A. 63.
Distinguished in Scales v. Gulf etc. By. (Tex. Civ.), 35 8. W. 206,
where an answer was filed which put in issue the allegations in the
petition.
43 Tex. 602-610, LOWBQS Y. STATE.
Becognlzance Describing Offense by Name in statute sufficient;
where offense called by generic term, reasonable description of of-
fense charged so as to indicate particular offense is sufficient.
Approved in McLaren v. State, 3 Tex. Ap. 682, dismissing case
where no offense known to law named in bail bond; Massey v. State,
4 Tex. Ap. 580, dismissing case where offense described in bail bond
as "carrying a pistol"; Morris v. State, 4 Tex. Ap. 556, 557, dis-
missing case where no offense known to law named in bail bond;
Arrington v. State, 13 Tex. Ap. 553, use of word "neat" does not
affect bond for stealing cattle; all cattle arc "neat"; Vivian v. State,
16 Tex. Ap. 264, dismissing cause where place for appearance of
defendant not named.
A Boom is not Made a Public Place by mere fact that it adjoins
and communicates by open door with another in which persons are
gaming.
Approved in Searcy v. State, 1 Tex. Ap. 443, charge in burglary
case charged to have been committed by shooting into house with
intent to murder "who did the shooting," error. See note, 31 Am.
Bep. 139.
43 Tex. 612-616, JOHNSON y. STATE.
On Trial for Murder where, under the testimony, a jury might
find verdict for manslaughter, .refusal to charge as to distinction
between two offenses is reversible error.
Approved in Waeson v. State, 3 Tex. Ap. 481, and Wadlington
V. State, 19 Tex. Ap. 273, all reaffirming rule; James v. State, 44
Tex. 318, as to when officer is justified in killing prisoner attempting
to escape and firing on officer; McLaughlin v. State, 10 Tex. Ap.
357, 358, and West v. State, 2 Tex. Ap. 477, reversing judgment where
court failed to instruct as to manslaughter where evidence to support
it; Sims v. State, 9 Tex. Ap. 596, reversing judgment upon failure of
court to instruct that killing done, where deceased manifested inten-
tion to execute former threat, is justifiable; Ainsworth t. State, 11
ON TEXAS EEPOETa. 43 Tei. 816-643
dement whsri diBtinctian between treapaai
)urt.
IT Of UuulMglitei in aegatiTe fonn Ib
I T. State, 40 Tex. Cr. E64, 81 B. W. 749,
with deadly weapon Teaaonnbly calculated
I and manner of its um in sudden passion
« did cnt, oCenie waa manslaughter, is
N T. STATE.
of Wlfo against husband in trial for theft
[nanatiom, »3 Mich. 258, 53 N. W. 166, 17
ale; Compton v. State, 13 Tex. Ap. 2T5, 44
]t testify against husband in prosecution
ter and his stepdaughter; Baxter v. Stute,
. Bep. 722, 31 S. W. 394, eonstrning arttcld
icedure, to mean acts of personal violence
e V. Kniffen, 44 Waih. 486, 120 Am. St.
leged first wife cannot testify against bas-
igamy; Bassett t. United SUtes, 137 U. S.
', 34 L. 764, wife of married man is not
hnsband for polygamy.
.Tictod <tf Tlieft at wife's property in ab-
p. 5&S.
T. HcKKIGHT.
■ of Jndfmeiit showing date, rate of Inter-
j proper oath of holder to administrator ia
L which to bring suit within ninety days.
«yd, 52 Tax. 285, reaffirming rule on second
e, 75 Tex. 98, 12 B. W. 753, to sustain auit
und proved to liave been presented to and
See note, 130 Am. St. Sep. 316.
T. Taylor (Tex. CiT.), 41 8. W. 517, want
f claim against an ostate presented te ad-
itnte a preaestation under article 2078 of
;95.
> T. DIA]^
not Waived by filing other defenses con-
in which right to insist npou it is not
itc Ins. Co. T. FitEgerald, 1 Tex. Ap. Civ.
D. a 20, 11 Sup. Ct. Hep. 10, 34 h. 605,
48 Tex. IS, all Tsaffirroing rule.
!Tt. HEWUAIT.
aranteed to OltlEeiu of Texas by the eon-
ichoate right, was subjeet to contract.
r. Beynolds, 52 Tex. 395, reaffirming rule;
Tex. Civ. 513, 79 S. W. 361, where aft^r
nd certificate mnn married and certificate
vas sold by wife before its location aal
43 Tex. 628-643 NOTES ON TEXAS BEPOBTS. 566
located bj purchaser, and later patent issaed to heira of hnsband, cer-
tificate was sole property of wife on death of husband; Neal t.
Bartleson, 65 Tex. 482, right of party to league of land becomes
asset of his estate; Bobertson v. Du Bove, 76 Tex. 8, 13 S. W. 301,
confirming sale of right to land before issuance of certificate;
Henessee ▼. Johnson, 13 Tex. Civ. 533, 36 S. W. 775, right to land
is subject to sale.
Wlien Issued, a Haadrlght Certificate can be Sold and delivered as
chattel, and purchaser without notice of prior assignment takes good
title.
Approved in Sogers ▼. Houston (Tex. Civ.), 60 S. W. 448, Hines
V. Thorn, 57 Tex. 102, and Hill v. Moore, 62 Tex. 613, all reaffirming
rule; Stone ▼. Brown, 54 Tex. 334, transfer of certificate need not be
in writing; Parker v. Spencer, 61 Tex. 164, transfer of certificate need
not be in writing; Sewell v. Laurance, 2 Posey U. 0. 379, title to land
certificates passes by delivery; Hanner ▼. Moulton, 23 Fed. 6, land
certificate is personal property.
The Doctrine of Innocent PnrcliaserB without notice applies also
to equitable titles to which the registration laws are applicable.
Approved in Texas etc. Mfg. Assn. v. Dublin etc. Mfg. Co. (Tex.
Civ.), 38 S. W. 409, deed by corporation which has not its com-
mon seal attached does not come within the rule.
Distinguished in Kimball v. Houston Oil Co., 100 Tex. 341, 99
S. W. 854, under Hart. Dig., art. 2757, burden of proving notice or
want of consideration was on party claiming under unrecorded deed.
Holder of Headriglit Certificate by warranty deed from giHUCee,
upon issuance of patent, becomes by estoppel possessed of legal title
thereto.
Approved in Satterwite v. Bosser, 61 Tex. 173, Daniel ▼. Bridges,
73 Tex. 152, 11 S. W. 122, Bankin v. Busby (Tex. Civ.), 25 8. W.
679, Lindsay v. Freeman, 83 Tex. 267, 18 8. W. 731, and Caudle
v. Williams (Tex. Civ.), 51 S. W, 561, all reaffirming rule; Hollis
▼. Dashiell, 52 Tex. 194, contract of sale of certificate before is-
suance takes effect upon issuance; Adams v. House, 61 Tex. 641,
title vests in holder of conveyance immediately upon isffuance of
patent; Culmell v. Borroum, 13 Tex. Civ. 463, 35 S. W. 944, is-
suance of patent in original holder's name does not devest assignee
of his rights; Franco-Texan Land Co. v. McCormick (Tex. Civ.),
23 S. W. 121, a deed to land carries to grantee the right vendor
would otherwise have on failure of the title.
Party Attacking Title of Pnrchaser of Headriglit Certificate must
show defect in title and himself entitled to equitable relief, and
nonpayment of purchase money by adversary.
Approved in League v. Henecke (Tex. Civ.), 27 8. W. 1049,
reaffirming rule; Meyer v. Miller (Tex. Civ.), 23 8. W. 994, arguendo;
Titus V. Johnson, 50 Tex. 242, confirming sale of certificate where
proven that ample price paid; Lewis v. Cole, 60 Tex. 343, con-
firming sale of certificate where adequate price paid; Saunders
V. Isbell, 5 Tex. Civ. 515, 24 S. W. 308, and Biggerstaff v. Murphy,
3 Tex. Civ. 366, 22 S. W. 769, reversing judgment where party
failed to prove notice of outstanding equity at time of purchase;
Stewart v. Crosby (Tex. Civ.), 26 S. W. 140, bona fide purchaser
for value and without notice is not bound by estoppel in pais of
his vendor; Brown v. Elmendorf (Tex. Civ.), 25 S. W. 147, Baldwin
V. Boot (Tex. Civ.), 38 S. W. 632, and Hanrick v. Gurley (Tex. Civ.),
Sa ON TEZAS BEPOBTS. 43 Tei. €43-652
)g party seeking to postpone prior anrecordeit
lelf ft bona ftde purchaser »nd Mb ndver-
in V. Tnrner (Tei. Civ.), 83 3. W. 155,
ipafment of purcbuw price is upon party
Soderi, 1 Posey U. C. 621, crediting veodor
Scient eonai deration for convey a ace to oiie
ler T. Case, 00 Tax. IS3, distinguished whero
pad of equitable title.
Teyanca of Headright OartUcfttB hai knowl-
ledge, of its repndiatiaa by making of second
limitation eommences to ran.
T. Eo^D, 50 Tex. 435, patent issued on
valid aa against claim made thirty years
Simpson, 08 Tei. 310, 4 S. W. 841, suit for
t barred after twenty-eight years.
iridge v. Corbett, 31 Tex. Civ. 682, 73 S. W.
and not available where party has already
has not adverse possession.
) Adequate to support plea of bona fide por-
. Olsen, 23 Tex. Civ. 464, 56 B. W. 572, one
r fair price at execution sale against holder
ted against heirs of community interest of
whose death purchaser had no notice; Sanger
tte. Co. (Tex. Civ.), 75 S. W. 40, determining
losnre sale of piano was bona fide purchaser
sold to mortgagor under unrecorded contract
ill all payments made.
V. Johnson, 50 Tex. 239, erroneously cited
that an instrument dnly acknowledged and
4cked because notary held interest in land
ipatible ofiiees at time of acknowledgment.
I T. STATE.
or Murder must state part of body wonnd
; describe it minutely.
IS v. State, 1 Tex. Ap. 405, and Nelson v.
>th reaffirming rule.
IS v. State, 3 Tex. Ap. 129, and Wilkerron
S9, both holding, nnder the code, indictment
'ei part of body where wound inflicted,
Umder Oaae, cause of death without aid of
n ease death did not ensue immediately after
1 T. State, 29 Tex. Ap. 153, 15 8. W. 648,
■ds V. State, 39 Fla. 758, 23 So. 539, admit-
ert witness as to cause of death.
tn Admissible as proof of express malice.
V. State, 30 Tex. Ap. 65, 16 S. W. 752, re-
S T. STATE.
Appropriates to His Own Use an. nnbranded
of another, nicbout owner's consent, cannot
43 Tex. 653-666 NOTES ON TEXAS REPORTS. 56a
be convicted of theft if taken in daytime, in presence of others^
under apparent belief owner had forfeited his right.
See note, 57 Am. Dec. 274.
Overruled in Lawrence v. State, 20 Tex. Ap. 541, taking un-
branded hogs is as much theft as though branded; Clark v. Alia-
man, 71 Kan. 234, 80 Pae. 581, 70 L. R. A. 971, holding local cus-
toms as to right of appropriation of water for irrigation purposes^
give no vested rights.
43 T«z. 653-654, GBEEN Y. HABTIN.
Affidavit to Secnre Appeal where party unable to give security for
costs must strictly comply with the statute (2 Paschars Digest,
art. 6180).
Approved in Sharp v. Arledge, 1 Tex. Ap. Civ. 339, Stamps v.
McClelan, 1 Tex. Ap. Civ. 408, Young v. Bickley, 1 Tex. Ap. Civ.
606, and Ewell v. Anderson, 49 Tex. 702, all dismissing appeal where
affidavit not in compliance with statute.
43 Tex. 654-666, STATE Y. OATOHINGHi.
Indietmont Against Two Persons for Hoxsendng along public
road should allege that defendants ran together.
Approved in Shook v. State, 25 Tex. Ap. 346, 8 S. W. 329, in-
dictment for gaming on Sunday should give names of parties ac-
cused engaged in gaming with.
43 Tez. 655-658, STATE ▼. SMITH.
Indictment for False Swearing before acting assessors is insuf-
ficient where it fails to show accused resided or had property in
assessors' precinct or that he had made false statement as to his^
property in answer to question put to him.
See note, 124 Am. St. Rep. 669.
43 Tez. 658-661, THOBCAS Y. STATE.
Recent Possession of Stolen Property, if unexplained, warrants
presumption of guOt, but such presumption is one of fact for the
jury.
Approved in Alderson v. State, 2 Tex. Ap. 13, and Lehman ▼.
State, 18 Tex. Ap. 177, 178, 51 Am. Rep. 301, both reaffirming rule;
McCoy V. State, 44 Tex. 618, 619, reversing judgment where court
did not leave facts to jury; Ayers v. State, 21 Tex. Ap. 406, 17
S. W. 254, reversing judgment where court did not leave facts to
jury. See note, 70 Am. Dec. 448.
Where Only Testimony Connecting Accused with offense is given
by acco'mplice, it is error to omit to instruct jury upon necessity^
of its corroboration.
See note, 71 Am. Dec. 678.
Mi8cellaneous.-r-Cited in Thomas v. State, 3 Tex. Ap. 113, on sec-
ond appeal where defendant was tried for offense under repealed
statute.
43 Tez. 662-666, McQEE Y. STATE.
Indictment for Tbeft of an Estray need not describe animal as
*'coming within meaning of estray."
Approved in Taylor v. State, 5 Tex. Ap. 1, realTirming rule under
siinilar indictment; Benson v. State, 1 Tex. Ap. 9, "a certain horse,.
B8 ON TEXAS BEPOBTa 43 Tex. 666-675
the atatate," sufficient description of stolen
tOBTEB T. STATE.
tin; Fobllc Bo&d, character of road mty bo
tinued nse as soch, and by order of court
m T. H. & T. C. B. B., 1 Tex. Ap. Civ. 35,
t. Ap. 108, Berry v. State, 13 Toi. Ap. 250,
, av. M, 48 8. W. 56, Howard v. Slate, 47
, and Texas etc. B. B. v. Kaufman Co., 17
. 687, all reaffirming rule^ Baee v. State, 43
S61, holding fact that land used for public
imaterial; gavannah etc. By. Co. t. Gill, 113
order of road commisaiouerB purporting to
c road admiaaible in connection with painl
ivB right of public to free urn of road, though
by record of proceedings on which it wa*
i Tei. Ap. 78, and Hall v. State, 13 Tei. Ap.
whether road is a public one is a questian
B T. KSUiET.
Bond, as Gollectoi of Taxes, are not relieTed
that levy of taxes was made subsequent to
V. Jackson Co., 63 Tex. 431, reaCBrming rule.
:, 48 Tex. 131, principles of leading case ap-
SON r. BOWDEN.
I Named in WUl, with power to sell property,
qualifies is legal and passes title.
n V. Stoekdale, 62 Tex. 61, reaSimiiag rule;
62 Tex. 60, mie requiring joint truateee to
ipplication to czecutorE appointed by will;
'1 Tex. lS-16, 8 8. W. 628, sale by one ex-
ifles is valid for payment of eatate's debts;
rex. 421, 10 8. W. 454, taxes due on estate
those Bobsequently accruing constitute debts
□dependent executor to sell lands of estate;
Tex. Civ. 78, 29 S. W. 486, setting aside sale
wer only to sell land for payment of debts
o exist; McCown v. Terrell (Tex. Civ.), 40
to sell is vested in two executors, in abvence
ill such power may be exercised by the sur-
lotes, 127 Am. St. Bep. 389; 80 Am. St. Bep.
t v. Bust, 46 Tex. S74, one of several trus-
t to sell cannot make conveyance that will
te; Mayes v. Blanton, 67 Tex. 247, 3 S. W,
'CS, S8 Tex. 425, 42T, both holding that power
manage ftnd control estate does not confer
43 Tex. 670-675 (NOTES ON TEXAS BEPOBTS. 570
Will Conferring Powers upon Execnton will, nnder the itatute,
be coiurtrued to confer such power upon those who saryive coezecn-
toTs or who alone qualify.
Approved in Terrell t. McOown, 91 Tex. 242, 43 S. W. 5, Mc-
Oown ▼. Terrell, 9 Tex. Civ. 73, 29 S. W. 487, and Bennett y. Kiber,
76 Tez. 390, 13 S. W. 222, all reaifirming rale.
NOTES
ON THE
i EEPOETS.
iIN44 TEXAS.
AsrttOiiMit, or tli« dscTaratloa of a partj,
viittan eontcBet.
T. Aleorn, 74 T«x. 36S, 12 8. W. 74, «i-
ODditional. S«e not*, 6 L. B. A. 33.
I That Defondant in indictment for ai-
eonvictiOD will be aaitained if evideuca
M, « Tex. Ap. 5B7, 30 Am. Bap. 170, ans-
vbere indictment nsed word "her"; Jones
flDBtsining conviction of arsoD, though
d Btmcture a "houae"; V«b1 t. State, S
lie wbere evidence that defendant waa
Jder"; Qaston v. State, 11 Tex. Ap. 147,
gender not railed below, judgment will
['ex. Ap. 512, II S. W. Q72, following rale
M "man" and "railroad hand." Bee note.
State (Tex. Cr.), 76 8. W. 487, fact that
BBanlt alao charges attempt to rape, with
!, Bufficientlj abowa accoaed waa adult
STATE.
'rodoco Tbalt Frlne^al on ae«onnt of
I, tbej will be released from their bond,
tate, S Tex. Ap. 217, 32 Am. Bep. 573,
aij on another ofFense; Boberta v. State,
I, and Lindtey v. State, 17 Tex. Ap. 122,
<te, 99 Am. Dec. 219.
tate, 2S Tex. Ap. 332, 8 8. W. 377, hold-
aurrendered after judgment "niai"; West
m. Bep. 280, holding suretiea where prin-
T second arrest; Conner t. State (Tex.
(571)
44r Tex. 14-39 NOTES ON TEXAS REPORTS. 572
Ap.), 9 S. W. 63, 64, holding sureties on bail bond on wbich judg-
ment nisi had been entered not released by subsequent arrest of
principal on alias capias.
44 Tex. 14-16, MULUNS Y. YABBOBOITGH.
An Administrator cannot Pay Off Vendor's Lien on homestead out
of general assets without an order of court.
Distinguished in Minter v. Burnett, 90 Tex. 250, 38 S. W. 353, en-
forcing payment of liens by administrator under article 3129, Revised
Statutes.
44 Tex. 16-23, MORRISON Y. LOFTIN.
Where Evidence That Wonld not have Aided a Party is excluded,
held it is not error.
Approved in Johnson t. Crawl, 65 Tex. 577, where evidence ex-
cluded that land sold at sheriff's sale brought reasonable price; Beau-
champ V. International Ry., 56 Tex. 243, where a time-table meant
for employees only was excluded; Rosenthal v. Middlebrook, 63 Tex.
335, where some general evidence by a witness as to ownership of
goods excluded; Rye ▼. State, 8 Tex. Ap. 159, where an inquiry as to
whereabouts of discoverer of murdered person excluded; San An-
tonio St. Ry. ▼. Muth, 7 Tex. Civ. 450, 27 S. W. 756, affirming judg-
ment for damages, although hearsay evidence admitted.
Where One Claiming Ownership of Land was not served with
process or made party to a suit, held not bound by judgment.
Approved in Sandoval v. Rosser, 86 Tex. 686, 26 S. W. 934, holding
minors not bound by a nonsuit where they had not appeared.
To be Bound by a Decree or Judgment one must become a party
in some of the modes known to the law.
Approved in Sandoval v. Rosser, 86 Tex. 687, 26 S. W. 934, holding
all parties to a consolidated action bound by the judgment.
If Requirements of Tax Laws are not complied with by county
officers, a sale of lands under them is void.
Cited in Morrison v. Chandler, 44 Tex. 25, following rule; State Tax
Law Cases, 54 Mich. 447, see 23 N. W. 190, court being equally di-
vided as to constitutionality of sale of lands by publication.
44 Tex. 27-34, WILLIS Y. MORRISON.
In a Suit Against Partners on a Draft» judgment may be rendered
against one of them.
Approved in Congdon ▼. Monroe, 51 Tex. Ill, reversing for charge
that individual recovery could not be had; Keithley v. Seydell, 60
Tex. 82, 83, sustaining recovery against some of several alleged
makers of a note; First Nat. Bank v. Graham (Tex. Ap.), 22 S. W.
1103, holding judgment may be rendered against individual where
affidavit for garnishment against two persons as firm and each denies
liability; Hayden Saddlery etc. Co, v. Ramsay, 14 Tex. Civ. 190, 36
S. W. 597, holding denial of partnership by one was denial for all.
Miscellaneous. — Gautier v. McHenry, 15 Tex. Civ. 334, 39 S. W.
604, holding judgment of supreme court on award affirmed jurisdic-
tion.
44 Tex. 34-39, WILLIAMS Y. STATE.
A Negro cannot Challenge an Array on the ground that the jury is
composed of white men.
TES ON TEXAS BEPOBTS. ii Tex. 40-63
T. State, S2 Tet, Cr. 339, 107 S. W. S48, on trial
ot snotber negro, where oiilj white witnevB
terial testimony sod jurors Btated the^ would
sdence bb whites, there was do race discrimina-
, 2 Tez. Ap. 412, holding jurora could not be
opposite political views; SwoSord v. State, 3
roDg name of a juror in a venire, hold the whole
luashed; Harris T. State, 6 Tex. Ap. 107, hold-
be cballeaged for failure to find all persona
vitt T. State, 15 Tei. Ap. 1B9, holding article
1 Procedure, conatitutionali Carter v. State, 39
. S37, holding arra^ could not be ehallecgcd be-
te men.
8 T. JOHN&
1 Order to £acapo Proaecntlon for aeduction, and
T. Griffin, 130 Qa. 630, 61 8. E. 17, IS L. B. A.
ing to stop prosecution for seduction by marry-
g bond for her support pursuant to statute, cau-
I procured by duress; Lacoste v. OuidroE, 47 La-
holding marriage made under threata of arrest
otei, 6 Am. St. Bep. 120; Tfl Am. St Bep. 371; 43
isenting opinion in Lee v. State, 44 Tei. Cr. 366,
}12, 61 L. R. A. 904, majority holding where de-
sham marriage, obtained prosecutrix's consent to
iTcourse, but did not cohabit with or recognise bei
commou'law marriage.
18D T. State, 78 Ala. 463, 56 Am. Bep. 44, hold*
[ of unloaded pistol did not constitute assault;
[. 182, 4 S. W. 7S6, brandishing a knife does not
ate V. Godfrey, 17 Or. 305, 11 Am. St. Eep. 833,
9e unloaded, held no assault.
tetute. Kief v. State, 10 Tex. Ap. 287, 233, bus-
Fhero father threatened daughter with razor;
'ex. Cr. 644, 10 S. W. 806, where rifle tujld not
aasanlt.
iitent to do a thing combined with an act which
.g intended.
. 747.
lELD T. STATE.
Aaaanlt With Intent to Harder seed not name
' y. State, 1 Tex. Ap. 396, Nash v. State, 2 Tex.
:ate, 3 Tex. Ap. 410, 30 Am. Rep. 147, and State
6, 30 Pac. 895, all fotlowir.g rule.
I to Show LowOE Grade of OSense, held not error
1 such grade.
nd V. State, 13 Tex. Ap. 547, sustaining charge
re facta did not show maDelaughter,
44 Tex. 63-88 NOTES ON TEXAS BEPOETa C74
44 Tex. 63-64, POWELL y. STATE.
Declarations Made After Commission of Olfense are inadmissible in
his favor.
Followed in Harmon v. State, 3 Tex. Ap. 54, excluding conversation
as to sale of cattle after they had been taken and sold.
44 Tex. 64-84, BCABOH ▼. STATR
Municipal Criminal Courts have jnrisdiction of cases removed to
them bj change of venue from another county.
Approved in March v. State, 3 Tex. Ap. 335, citing principal case
for facts; Ham v. State, 4 Tex. Ap. 671, sustaining conviction of citi-
zen of Missouri extradited for different offense; Early v. State, 1
Tex. Ap. 266, holding district judge dismissing case in Collin county
could return it to Cooke coynty.
New Trial will not be Oranted for conversation of juror with third
party if conversation not harmful to defendant.
Approved in Dairs ▼. State, 3 Tex. Ap. 102, sustaining ver-dict, al-
though jury separated; Nance v. State, 21 Tex. Ap. 458, 1 S. W. 448,
where jury conversed with third person, but no injury shown, sustain-
ing judgment; Boyett v. State, 26 Tex. Ap. 704, 9 S. W. 277, sustain-
ing judgment where juror permitted to talk to sick wife; Shaw v.
State, 32 Tex. Cr. 168, 22 S. W. 589, sustaining judgment where con-
versation only trivial. See note, 35 Am. Dec. 255.
Verdict will be Vitiated where jury has consumed a great deal of
whisky while in jury-room.
See note, 62 Am. Dec. 563.
Distinguished in Tuttle v. State, 6 Tex. Ap. 561, sustaining verdict
where jury drank liquor before testimony offered.
Prosecution must not Take unfair advantage of defendant.
Approved in Eldridge v. State, 12 Tex. Ap. 213, granting new trial
where continuance refused for absence of witness; Hubbard v. State,
64 Miss. 317, 1 So. 481, reversing where continuance not granted and
advantage taken of defendant.
Qualified in Lindley v. State, 11 Tex. Ap. 285, where defendant
alleged witnesses for state concealed, held should not have proceeded
to trial.
Each State Completely Controls Bemedies it affords suitors in its
courts.
Approved in Johnson v. State, 42 Tex. Cr. 106, 58 S. W. 70, uphold-
ing Code Cr. Proc, art. 723, requiring objection to erroneous charge
to be served by bill of exceptions or to be availed of on motion for
new trial, before it can be reviewed on appeal.
Where Prosecuting Officers fraudulently induced accused to go to
trial on impression that state's important witnesses were absent, new
trial granted.
Approved in Hendrick v. State, 47 Tex. Cr. 872, 83 S. W. 712, criti-
cising conduct of district attorney who, in open court, stated he
would not introduce further evidence to show liquor was Intoxicating,
and after defendant's witness to prove contrary discharged, intro-
duced witness to prove that issue.
44 Tex. 85-88, LX7NN ▼. STATE.
An Indictment for Theft of Hogs need not describe them.
Approved in Grant v. State, 2 Tex. Ap. 166, following rule.
Where More Than One Offense is Charged or developed by evidence,
district attorney must elect on which he will proceed.
S ON TBXAS BEPOBTS. 44 Tex. 88-08
State, 10 Tei. Ap. 159, leveising wb«rfl de-
idpal BDd aeeessory, but do oleetion made;
Ap. 25, 8 Am. St. Bep. 429, 8 S. W. 84, re-
;ioD, court charged on both conDta; Batchslor
S03, 9B Am. 8t. Kep. 791, 55 3. W. 4B1,
which act of intercourse it relies on for oon-
noder age of flfteen years; Williams t. State,
958, applying rule in proaecutioa for assault
ki made; Walker v. State (Tex. Cr.), 72 S. W.
ilation of local option law, not error to admit
ons where several violations shown and no
ate T. Norris, 122 Iowa, 156, 97 N. W. 1000,
tioQ for rape where indictment charged and
acta constituting offenBe; Jamison t. State,
76, applying rule in prosecution for rape un-
here state permitted to also prove intercourse
age of consent. See Dote, 92 Am. Dee. 665.
n T. State, 4 Tex. Ap. 335, sustaining judg-
harged on one eonnt; Street t. State, 7 Tex.
ion of misdemeanor where but one connt, but
tn one transaction,
ilmala must be proven.
State, 4 Tex. Ap. 122, and Hall v. State, IS
ing rule.
[Tnion Tel. Co. v. Hinkle, 3 Tex. Civ. 520, 28
;ake in date of telegram set oat in petition
UABTIN.
isel, made under mistake, may be withdrawn
rrhieh it is inadmissible.
Pasture Co. v. Preston, 06 Tex. 469, uphold-
insider agreement made under mistake.
PRATT.
dlag "against the peace and dignity of the
iople, 23 Colo. 7, 45 Pae. 376, where concluded
V. Campbell, 210 Mo. 218. 109 S. W. TIO, in-
;ainst the peace and dignity of state" is
ssion of "the" before "state"; Hann t. Stale,
Bep. 707, reversing where concluding words
November."
HUNTER.
[gravated Assault "committed in * court of
is described.
V. State, 19 Tex. Ap. 491, reaffirming rule.
r T. STATE.
nnot be mstained without proof that defend-
immitted it.
44 Tex. 100-109 NOTES ON TEXAS EEPOBTa 67d
Approved in Porter v. State, 1 Tex. Ap. 399, reversing where neither
assaulted party nor other witness to assault to murder produced;
Green v. State (Tex. Cr.), 31 S. W. 387, reversing conviction of theft
where only evidence was possession of goods similar to those stolen,
but not otherwise identified; Gill v. State, 36 Tex. Cr. 595, 38 S. W.
191, reversing where evidence did not identify accused with murder;
Clifton V. State, 39 Tex. Cr. 620, 47 S. W. 643, reversing under rule;
Cox V. State (Tex. Cr.), 59 S. W. 905, reversing conviction of derail-
ing train under rule; Polin v. State (Tex. Cr.), 65 S. W. 185, holding
evidence of possession of bills similar to those stolen, without fur-
ther identification, insufficient to support conviction for theft.
It is the Duty of the Supreme Court to reverse and remand a judg-
ment that is contrary to the weight of evidence.
Approved in Loza v. State, 1 Tex. Ap. 490, reversing where evidence
of theft of horse insufficient; Aycock v. State, 2 Tex. Ap. 385, where
evidence of threat to take life insufficient; Grant v. State, 3 Tex. Ap.
5, reversing for theft where brand on cattle not proven; Leverett t.
State, 3 Tex. Ap. 218, 219, holding court properly refused to charge
as to correction or reception of evidence; Fisher v. State, 4 Tex. Ap.
185, holding charge that jury "may believe or discard testimony" im-
proper; ELing V. State, 4 Tex. Ap. 258, reversing conviction of mur-
der where evidence did not show malice; Jones v. State, 4 Tex. Ap.
443, reversing where testimony of accomplice to homicide not corrob-
orated; Jones V. State, 5 Tex. Ap. 88, sustaining conviction of theft
of hog where testimony conflicting; Barnell v. State, 5 Tex. Ap. 115,
reversing conviction of theft of horse under rule; Bodriguez v. State,
5 Tex. Ap. 263, reversing where better evidence procurable; Hunt v.
State, 7 Tex. Ap. 236, sustaining charge on circumstantial evidence;
Griffith T. State, 9 Tex. Ap. 373, reversing conviction of abortion;
Cohen ▼. State, 11 Tex. Ap. 339, reversing under rule; Walker v.
State, 14 Tex. Ap. 630, reversing conviction of murder; Ex parte
Smith, 23 Tex. Ap. 143, 5 S. W. 112, dissenting opinion, majority re-
fusing bail on indictment for murder; Hernandez v. State, 4'6 Tex. Cr.
82, GS S. W. 321, holding evidence of prosecutor insufficient to sustain
theft.
44 Tex. 100-102, STATE Y. PEBBY.
Article 2076, Paachal's Digest, relating to sale of liquors, held not
repealed by articles 7708 and 7764.
Limited in Smith v. State, 7 Tex. 286, holding the article referred
to inoperative for want of penalty.
44 Tex. 102-103, STATE Y. ELMOBE.
An Indictment for Assault on "a freedman, whose n^me is to the
grand jurors unknown," held good.
Approved in Williams v. State, 3 Tex. Ap. 130, sustaining indict-
ment for murder where Christian name of deceased omitted; Jorasco
V. State, 6 Tex. Ap. 241, holding indictment for theft from person un-
known good.
44 Tex. 104-109, STATE Y. GOLDMAN.
An Indictment Under Article 7200, Paschal's Digest, relating to
practice of medicine, held defective for stating defendant had not
obtained certificate from examiners of "Wood county."
Approved in Carribene v. State, 3 Tex. Ap. 263, sustaining convic-
tion; Hilliard v. State, 7 Tex. Ap. 72, affirming conviction where de-
18 ON TEXAS BEPOETS. ii Tex. 109-119
'tificate on ebaugiug domicile; State v. Dent,
•eople v. Phippin, 70 Mich. 19. 21, 37 N. W.
iws reguIatiDg practice of medictDe conBtitu-
etc. Board, 32 Mino. 328, 50 Am. Hep. 578,
laadamuB to compel ezaminiDg board to iasue
9 T. Ifartin, 23 B. I. 146, 49 Atl. 499, ap-
giiig defeadant practiced dentistry in viola-
lat certificate from dental registry board tliat
ly eiaminatioD before eaid board.
V. etate, 50 Tex. Cr. 528, 97 3. W. 1052, where
cased of burglary of twenty-six dollar barnesB
grown man, bought of accused for one dollar,
timonj necessary; People v. Morton, 139 Cal.
Bvidence in corroboration of testimony of ac-
ficient; Boberts v. State, 44 Tex. 123, holding
if theft of horse insufGcicnt,- ailiiaDv.State,3
Dviction of breakingjailander lule; Simmsv,
iversing where corroborating evidence insuffl-
Tex. Ap. 491, and State v. Callahan, 47 La.
b reversing under rule; Crowell v. State, 24
), reversing conviction of theft; Roe v. State,
467, suatainiug inatruction on law of accom-
Dee. 678.
BT T. STATE.
■dlbe ths OftoiM charged in the indictment.
. State, 3 Tex. Ap, 553, 555, holding recogni-
uor without license" bad; United States v.
, holding undertaking on appeal for justice
<ND Y. NAST.
A "Golmond b Co." as defendants, and n-
n, held Bulficient description.
'. Paris etc Bk,, 1 Posey V. C. 96, reveraing
txecDtor did not name partiea. See note, 44
. Walker (Tex. Civ.), 73 S. W. 409,
r. State, 1 Tex. Ap. 144, holding error to con-
ingh he had no opportunity to testify. Bea
t. Coiif«dente to bia attorney is inadmiaaible
44 Tex. 119-127 NOTES ON TEXAS BEPOBTa 578
Approved in Haynie ▼. State, 2 Tex. Ap. 175, holding error to admit
eonversations of a defendant while in custody; Cox t. State, 8 Tex.
Ap. 304, reversing where intention of one conspirator to commit crime
admitted against another; Simms v. State, 10 Tex. Ap. 161, reversing
where subsequent declarations of accomplice admitted; Fulcher v.
State, 28 Tex. Ap. 473, 13 S. W. 751, reversing for admitting evidence
of defendant's declarations after arrest; Drake v. State, 29 Tex. Ap.
277, 15 S. W. 731, reversing where court admitted evidence to im-
peach collateral testimony of witness; Gaines v. State, 38 Tex. Cr.
229, 42 S. W. 397, reversing where wife of defendant cross-examined
on collateral matters.
Distinguished in Bigby ▼. State, 5 Tex. Ap. 102, sustaining convic-
tion of misdemeanor where immaterial evidence admitted; Cox t.
State, 8 Tex. Ap. 297, holding not error to admit subsequent portions
of res gestae to explain former portions; Post v. State, 10 Tex. Ap.
594, affirming where evidence not pertinent to the issue; Saddler t.
State, 20 Tex. Ap. 197, affirming conviction of theft where "sus-
picions" of witness admitted; Jinks v. State, 35 Tex. Cr. 367, see 33
S. W. 868, affirming where immaterial evidence admitted.
Miscellaneous. — Cited in Chowning ▼. State, 41 Tex. Cr. 83, 51 S. W.
948, as to use of unrecorded brand in evidence to prove identity of
animal stolen, but not to prove ownership.
44 Tez. 119-123, BOBEBTS T. STATE.
Uncorroborated Testimoiiy of an Accomplice will not support a con-
viction.
Approved in Blakely ▼. State, 24 Tex. Ap. 625, 5 Am. St. Bep. 916,
7 S. W. 235, reversing conviction as accessory to murder under rule;
Powell V. State, 7 Tex. Ap. 466, reversing where court failed to in-
struct on testimony of accomplices; Welden v. State, 10 Tex. Ap. 402^
reversing where the corroboration did not connect defendant with
offense.
44 Tex. 124-127, HABBIS T. WILLIAMS.
Wife's Separate Property is Liable Only for Debts contracted for
benefit of separate estate or for necessaries.
Approved in Flannery v. Chidgey, 33 Tex. Civ. 640, 77 S. W. 1035,
wife's separate estate not chargeable with necessaries obtained for
husband; Bosenbaum v. Harloe, 1 Tex. Ap. Civ. 489, and St. Louis
etc. By. ▼. Griffith, 12 Tex. Civ. 636, 35 S. W. 744, both sustaining
suit by wife, where abandoned by husband; Adamson v. Shiel, 4 Tex.
Ap. Civ. 508, 18 S. W. 465, holding husband could not bind wife on
contract for plastering her house; Gossard v. Lea, 3 Tex. Civ. 6, 21 S.
W. 705, holding wife not bound for machinery ordered by her hus-
band; Buiz V. Campbell, 6 Tex. Civ. 717, 26 S. W. 297, holding loan
to married daughter by mother not an advancement; Owen v. New
York etc. Land Co., 11 Tex. Civ. 291, 32 S. W. 1059, holding judg-
ment to which wife not party did not devest her of her lands.
Distinguished in Owens v. New York etc. Land Co. (Tex. Civ.), 32
S. W. 1059, holding wife's title to separate real estate unaffected by
husband's conveyance thereof; Hawkes v. Bobertson (Tex. Civ.), 40
S. W. 549, holding in suit on mortgage on wife's separate estate exe-
cuted by husband and wife, petition need only state facts fixing
liability under statute; Emerson v. Kneezell (Tex. Civ.), 62 S. W.
551, holding married woman bound to pay architect under her con-
tracts
ON TEXAS BEPOBTS. 44 Tsz. 128-141
STATE.
mat for ft miademeanor is fired on by ft
ieeman, the kilting is juitififtble.
State, 1 Tex. Ap. fl83, revereiag for erro-
kiUisg by policem&D; Sftnner v. State, 2
3inau officer within meaning of article 488,
, 4 Tex. Ap. 67S, raverBiuc for ineuffivient
V. State, 40 Tex. Cr. 220, 4B 8. W. Bll, re-
f« under similar facts; diBsenting opinion
f. C. 752, 53 a E. 723, majority holding
notcB, 84 Am. St. Bep. 699; 2 L. B. A.
535; 66 L. B. A. 368.
unjustifiable only when arresting officer's
Icnown to party when arrest is attempted
Ful.
lips, 118 Iowa, 684, 92 N. W. B84, instnic-
oo reasonable belief of guilt, took 'armed
dered accused to throw up hands, and that
sieted and one of posse killed, defendant
lee notes, 66 L. B. A. 372; 42 L. B. A. 673,
S T. AUSTIN.
Lttomey wm not Antboilaad to represent
I that he was.
Min. Co. T. Woodmas, 12 Colo. 53, 13 Am.
letting aside judgment where shown attor-
»r. See note, 21 L. B. A. 848.
ite Proceedings should contain transcript
raid, 1 Posey U. C. 12S, holding petition
by copy of proceedings, demurrable.
EE T. STATE.
tilct OleA resulting in his removal is not
ute relating to filing of transcripts.
te, 49 Tex. 644, appeal lies to supreme court
;e in removing district attorney from office.
UASOM.
rrom Common Source need only prove it
idwallader (Tex. Civ.), 23 8. W. 282, and
Tex. Civ. 126, 24 8. W. 984, both follow-
imon Sonrce without alleging it, and will
rior title in himself.
luff, 54 Tex. 198, following rule where de-
title from plaintiff; Calder v. Bamsey, 66
44 Tex. 140-144 NOTES ON TEXAS REPORTS. 580
Tex. 219, 18 S. W. 502, following rule; Hughey ▼. Mosby, 31 Tex.
Civ. 77, 71 S. W. 396, applying rule in trespass to try title by heirs
of married woman who had attempted to convey to husband;
Koenigheim y. Miles, 67 Tex. 119, 2 S. W. 84, holding where plaintiff
claimed different land, defendant could not defeat on ground of
common source; Garner v. Lasker, 71 Tex. 433, 434, 9 S. W. 333,
holding plaintiff could show defendant held under void tax title;
Sebastian v. Martin Brown Co., 76 Tex. 292, 12 S. W. 986, holding
plaintiff did not shift burden by merely showing judgment and sheriff's
deed; Holman v. Herscher (Tex. Sup.), 16 S. W. 985, holding pur-
chaser under execution against person generally considered partner,
but not actually such, liable for removing house from partnership
property; Simmons Hardware Co. v. Davis, 87 Tex. 147, 27 S. W.
63, reversing where plaintiff showed attachment against common
source and sale to plaintiff; Watkins v. Smith, 91 Tex. 591, 45 S. W.
561, granting recovery to plaintiff on account of prior possession;
Cox V. Hart, 145 U. S. 384, 12 Sup. Ct. Rep. 965, 36 L. 745, holding
unnecessary to show common grantor's deed valid; White v. Cole,
9 Tex. Civ. 281, 29 S. W. 1150, holding superior title in vendor where
vendee had successfully pleaded statute against action for purchase
money; Rice v. St. Louis etc. Ry., 6 Tex. Civ. 358, 24 S. W. 1100,
holding defendant may show plaintiff's superior title worthless;
Webster v. McCarty, 16 Tex. Civ. 162, 40 S. W. 824, admitting evi-
dence of transfer by heirs to prove common source, although not
pleaded; Flewellen v. Cochran, 19 Tex. Civ. 501, 48 S. W. 40, where
possession obtained under deed from which lien arose, held sub-
ordinate; Boyd V. Miller, 22 Tex. Civ. 166, 54 S. W. 412, affirming
recovery where plaintiffs showed prior possession.
In Trespass to Try Title plaintiff shows a prima facie title where
he had possession, prior to that under which defendant claims, under
a regular chain of title.
Approved in Boston v. McMenamy, 29 Tex. Civ. 275, 68 S. W. 203,
following rule; Freeman v. Slay, 99 Tex. 515, 91 S. W. 7, where
defendant in trespass to try title to land sequestered by plaintiff
admitted latter's fee simple but pleaded right to possession under
lease from him, burden on defendant to prove lease; Crouch v. Posey
(Tex. Civ.), 69 S. W. 1004, school trustees cannot convey land belong-
ing to district and previously used for school purposes without order
of commissioner's court; Welder v. McComb, 10 Tex. Civ. 91, 30 S.
W. 825, possession by tenant is prima facie evidence of title.
Possession by Vendee who has failed to pay purchase money is
not adverse to vendor.
Approved in Roosevelt v. Davis, 49 Tex. 473, holding statute did
not run until repudiation by vendor; Caplen v. Drew, 54 Tex. 496,
where purchaser at marshal's sale showed possession in third party,
held burden on defendant; Pearson v. Boyd, 62 Tex. 544, where
patentee repudiated executory contract by selling lands, held ad-
verse possession commenced against second vendee; Chinn v. Tay-
lor, 64 Tex. 390, reversing where defendants failed to show para-
mount title; Clark v. Adams, 80 Tex. 676, 16 S. W. 552, where pos-
session under executory contract, held did not constitute bar; Smith
V. Pate (Tex. Civ.), 43 S. W. 314, holding statute of limitationa
inapplicable to possession under deed retaining vendor's lien; An-
derson V. McCormick, 18 Or. 303, 22 Pac. 1063, where defendant per-
TEXAS BEP0ET3. 44 Tes. 143-154
mentB, held not adverae. See notes, 60
1; 107 Am. St. Rep. 725.
e Title where he deraigns title out of
iDBaeesion for Buficieut length of time
lit, 96 Tez. 326, 72 S. W. 582, possession
ise legal title by patent from Btate had
b' previona pOBsession by adveree claim'
lOt be disinisBed In vacation,
aiston, 1 Tez. Ap. Civ. 371, reaffinniiig
(Tei. CiT.), 42 8. W. 8«3, holding order
Bacstion, denying peremptory writ of
i judgment.
STATE.
Qo to JniT after argnment eommeneed
exeluded.
ItKte, 1 Tex. Ap. 671, BflSrming eooTie-
reeall witnesB for impeachment; Noft-
22, sustaining action of court allowing
of caae closed.
▼. WEBB. '
a the iBsnes will be reveraed.
, 82 Tex. 432, 18 S. W. 619, where Jndg-
BheriS to plaintiff; Uitchell v. Western
282, 33 S. W. 1020, where court failed
IT WELL.
Omiflral Belief in addition to ipecifle,
ner although not entitled to latter.
1, 40 Tex. dv. 93, S8 S. W. 434, elaioiant
nity estate for improvement of wife*8
in therefor, may have sale for partition
nder prayer for general relief; Wagner
i Tez. 554, 50 S. W. 571, where petition
insurance policy.
Iia Same Facta alleged is original peti-
cause of action.
tellers, 98 Tex. 391, 84 a W. 422, suit
dnst one who wTongfullj sold it, and
ta value, if held by innocent purchaser,
as amendment seeking same recovery
le unlawful; Thompaon v. Swearengin,
int aimply added name of partner to
Co. V. Brown, 62 Tex. 640, and Ball
following rule where amendment aet
Bros. etc. Asan. v. Smith, 83 Tex. 501,
in action for value of certain fences;
, 2 Tex. Ap. Civ. 149, following rule
I T. Brooks, 3 Tex. Ap. Civ. 426, fol-
44 Tex. 158-169 NOTES ON TEXAS REPORTS. 582
lowing rule in action on account where new count added; Massey
Y. Blake, 3 Tex. Ciy. 59, 21 S. W. 782, sustaining amendment setting
up individual liability of partner on note; Gulf etc. By. ▼. Richards,
11 Tex. Ciy. 101, 32 S. W. 99, following rule in action for damages
against railway; Mitchell v. Lytle, 1 Tex. Ap. Civ. 386, holding error
to strike out inconsistent amendment; Hunter v. Ha tier, 1 Tex. Ap.
Civ. 592, sustaining amendment alleging value of converted articles.
Distinguished in Phoenix . Lumber Co. v. Houston Water Co. (Tex.
Civ.), 59 8. W. 555, where amendment set up new action in tort;
Missouri etc. Ry. v. Levy, 23 Tex. Civ. 688, 57 S. W. 867, where
new facts in damage case set up; Phoenix Lumber Co. ▼. Houston etc.
Co., 94 Tex. 462, 61 S. W. 709, where amendment to action for breach
set up negligence.
44 Tez. 158-160, DEMENT T. WILUAMS.
A Verbal Partition Line will not be binding unless it is clearly
established.
See note, 92 Am. Dec. 122.
44 Tez. 164-169, WRIGHT T. DAVENPORT.
Where Engine Defective, but no fraud shown, held could not re-
scind, but only recover abatement in price.
Approved in Easterly v. Jones, 1 Tex. Ap. Civ. 75, and Russell ▼.
Walker, 1 Tex. Ap. Civ. 507, both following rule; Jesse French Piano
etc. Co. V. Thomas, 36 Tex. Civ. 78, 80 S. W. 1063, plea of failure
of consideration without allegation of fraud does not raise issue of
right to rescind contract; Stark v. Alford, 49 Tex. 275, allowing for
defects in sawmill; Miller-Stone Mach. Co. v. Balfour, 25 Tex. Civ.
416, 417, 61 S. W. 974, rescission denied where purchaser continued
to use the gin outfit after complaint, and it worked tolerably well;
Greenwood v. Pierce, 58 Tex. 133, applying rule to action for price
of lots. See note, 40 Am. Dec. 303.
Where the Warranty of an Article goes to its degree of fitness or
quality, and it proves inferior, the article cannot be returned to ven-
dor, and vendee's remedy is by action for damages.
Approved in Williams Trans. Line v. Cole Trans. Co., 129 Mich.
216, 88 N. W. 475, 56 L. R. A. 939, following rule.
Distinguished in Florida Athletic Club v. Hope Lumber Co., 18
Tex. Civ. 169, 44 S. W. 14, where the lumber contract was an execu-
tory one, the rule does not apply.
Measure of Damages, where warranty goes to degree of fitness, or
to quality, and article is inferior, is difference between value of article
furnished and as represented.
Approved in Hayden v. Houston (Tex. Civ.), 24 S. W. 804, holding
purchaser not estopped from urging partial breach of warranty by
retaining inferior article furnished; A. J. Anderson etc. Co. v. Cle-
burne etc. Co. (Tex. Civ.), 27 S. W. 506, holding profits lost through
defective machinery may be offset against suit for price of machinery
furnished for known purposes under contract; Florida Athletic Club
V. Hope Lumber Co., 18 Tex. Civ. 167, 44 S. W. 13, holding purchaser
not estopped after approving the lumber from showing it to be in-
ferior in quality to that contracted for; Snyder v. Baker (Tex. Civ.),
34 S. W. 982, holding measure of damage for breach of warranty of
stallion difference between actual value and value of sound*
S ON TEXAS BEPOBTS. £83
tS T. HABKI80N.
Belns AdmlnlBtaied under itatnte, property
same maniier as if is BdminiatratiDn.
r. Pausks, 54 Tex. 609, following rule in tres-
IN T. STATE.
Id did not constitute tfaef t.
T. State, a Tex. Cr. 328, TO B. W. 208, on
ridenee that defendant futnisbed A with gun
present at killing, he wkb only an aceoinplice.
.son V. State, 16 Tex. Ap. 442, where defend-
id sold them, held a taking; Coombes t. State,
' killing of a cow eonstitated taking.
OK T. HOI.T.
, 1856, upon making a
loit^ taomeBtead, even
. Cage, 44 Tex. 53S, sustaining sale by widow;
:. 177, Buatainiog conveysnee although inven-
irn to; Wenar t. Stensel, 43 Tez. 4S9, fotlow-
sold hom?Btead before personaltj; Jordan v.
ding anrviving husband could eocnmber home-
>en V. Qrissom, S3 Tex. 435, confirming sale by
.ry not signed; Watkios v. Hall, 57 Tei. 2,
d did not qualify to sell utitil after convey-
opei, 57 Tex. 872, where surviving wife con-
9t deed, held her interest liable on execution;
X, 60, upholding judgment against commiioity
unger v. Moody, GO Tex. SS, following rule;
61 Tex. 74, holding surviving wife could sue
judgment; Ashe v. Yungst, 65 Tex. 636, con-
,d under rule; Withrow v. Adams, 4 Tex. Civ.
ig failure to list certain property did not pre-
! Am. Dee. 80; 86 Am. Dee. 626; 56 L. B. A.
ey V. Batte, 48 Tex 77, dissenting opinion,
could recover half of community; Busby v.
3re wife failed to qualify, held sale invalid;
73 Tez. 291, 11 S. W. 323, where remarried
it order of court, held invalid for want of
Bop. 593, ELLIOTT T. BOOTH.
Buikrupt ProcaMUngt may be enforced In
V. Bevis, 44 Tex. 385, Jackson v. Elliott,
Proetul, 53 Tez. 580, and Gillett v. Mc-
followiug rule; Love t. McOill, 41 Tex. Civ.
irge of husband in bankruptcy does not relieve
rom payment of prior judgment against both
community debt; Hancock v. Henderson, 45
en against subsequent purchaser; Spring v.
, upholding title of pnrchaaei onder junior
584 NOTES ON TEXAS REPORTS. 44 Tex. 192-245
judgment against bankrupt sale; Wallace v. Bogel, 62 Tex. 639,
holding jurisdiction acquired bj attachment could only be defeated
by interventions of assignee; French v. Pyron, 2 Posey U. C. 720,
holding discharge did not release mortgaged property; Pinkard ▼.
Willis, 24 Tex. Civ. 71, 57 S. W. 893, holding sureties on claim bond
bound though principal bankrupt.
Miscellaneous. — Grant v. Williams, 1 Tex. Ap. Civ. 154, holding
on trial of right to partnership property, equities of parties or
creditors will not be adjudicated.
44 Tez. 192, PARGHMAK T. STATE.
Indictment for Th«ft of "ox" held good.
Approved in Henry v. State, 45 Tex. 87, sustaining indictment
for "two certain oxen"; Robertson v. State, 1 Tex. Ap. 314, alsa
"beef steer"; Moore v. State, 2 Tex. Ap. 351, also "one beef steer,
neat cattle."
44 Tox. 192-196, ORBILL T. TALBOTT.
Where No Evidence to Show That Agreement to pay note in gold,,
with interest at ten per cent, was not without consideration, held
judgment good.
See note, 65 Am. Dee. 136.
44 Tez. 196-200, POPE v. GRAHAM.
A Mechanic's Lien will Arise on Contract recorded within six
months after payment for materials and work is due.
Approved in Martin v. Roberts, 57 Tex. 567, reaffirming rule.
Lien for Building Homestead is not defeated by homestead exemp-
tion.
Approved in Swope ▼. Stantzenberger, 59 Tex. 389, where property
not homestead at time of making contract. See note, 78 Am. Dec.
699.
Distinguished in Cameron v. Gebhard, 85 Tex. 613, 34 Am. St. Rep.
834, 22 S. W. 1033, where homestead intention clear and contract not
in writing, held no lien attached.
Where Lien Attached, held taking of security is not waived unlesa
se intended.
Approved in Nickel ▼. Greenwold, 1 Tex. Ap. Civ. 31, reaffirming
rule; Maas v. Tacquard's Exrs., 33 Tex. Civ. 43, 75 S. W. S52, where
vendor executed release of lien in acknowledging payment of notes
but shown that only intended as release of original vendee only,
priority of lien not lost; Irvin v. Garner, 50 Tex. 54, holding lien
not released by execution of note to third person.
Written Contract Intended to Secure Mechanic's Lien may be
recorded without proof of acknowledgment.
Followed in Warner etc. Mfg. Co. v. Houston (Tex. Civ.), 28 8. W»
411, reaffirming rule.
44 Tex. 204-245, SX7LPHEN v. NORBIS.
Where There has Been Long-continued Possession, held jury may
presume a grant.
Approved in Truehart v. Babcock, 49 Tex. 260, holding evidence as
to grant should go to jury; Miller v. Brownson, 50 Tex. 594, hold-
ing evidence insufficient to presume grant; Texas etc. Ry. v. Uribe,
85 Tex. 390, 20 S. W. 154, holding evidence sufficient to maintain
grant.
ON TEXAS REPORTS. 68S
Ata, and paBsewioii of ten jeaTs, held ad-
'eak, 70 Tei. S52, 7 8. W. T88, where Uni
ate ran against owner of certificate.
S V. SMITH.
lot AtUcb to wife'i lepaiate propertr foi
led by her.
Uontgomer^, S Poeey U. C. 386, TeafiTming
I, 2 Posey n. C. 403, foUowiog rule al-
iprovements; OosBard v. Ii«a, 3 Tex. Civ.
>g wife not liable for improvements to
Buiz T. Campbell, 0 Tex. Cit. 717, 26 8.
t liable in eeparate property for loan to
on T. Shiel, 4 Teit. Ap. Civ. 508, JS S. W.
und for improvements to houee; Owen v.
11 Tex, Civ. 291, 32 8. W. 1059, holding,
1 suit on note eieented by husband and
nished wife need not allege facts Szing
irtaon (Tex. Civ.), *0 8. W. 549, Parker v.
61 S. W. 941, and Cushman r. Masterson
3, all holding wife's separate property not
; Morrison v. Clark, 29 Utah, 442, 7T Am.
holding wife's land not aub.ieet to lien for
md; Emerson v. Kneeiell (Tex. Civ.), 62
i woman to contract to pay architect.
to S«rTe a BUI of Fartlcnlan, held Hen
lillespie, 84 Tex. 42, following role; War-
rick, 88 Tex. 493, 30 8. W. 439, where eon-
cauae in poMeiaion of defendant.
. STATE.
Batnmed under a threat of prosecution,
I T. PBTTT.
r of JS48 a lien on homestead eanuot be
V. Ford, 46 Tex. 633, following rale al-
d removed from state; McLane v. Paschal,
Did, 52 Tex. 164, Griffie v. Maxey, 58 Tci.
69 Tex. 322, 6 8. W. 841, McLane v.
9. W. 83S, and Lacy v. Lockett, 82 Tex.
ifBrming rule; Carter v. Randolph, 47 Tex.
wo years did not constitute abandonment;
ex. 20, sustaining eonveyance of homestead
only survivor; Clift v. Kaufman, 60 Tex.
widow and children in lieu of homestead;
Tex. 198, 15 8. W. 472, dissenting opinion,
'ance in lien of homestead; Trammel] v.
i, where homestead passed to unmarried
t to administration; Sehwarxhoft v. Neck-
Iding wife abandoning hnaband lost homo-
44 Tex. 255-273 NOTES ON TEXAS REP0BT8. 686
fltead; Miller v. Finegan, 26 Fla. 37, 38, 17 So. 142, 6 L. B. A. 813,
holding heir could take homestead, though not occupying it. See
note, 56 L. R. A. 59, 87.
A Bnling or Opinion of This Court that overrules an established
rule of property is not "stare decisis."
Approved in Hanrick v. Hanriek, 61 Tex. 600, reviewing judgments
as to heirship of certain alien heirs; Clay ▼. Clay, 2 Posey U. G.
365, reviewing where questions materially different. See note, 34
L. R. A. 329.
Distinguished in Burns v. Ledbetter, 56 Tex. 283, holding opinion
of commissioners conclusive on question of award; Lowell ▼. Ball,
58 Tex. 566, holding where supreme court has reversed and en-
tered new judgment, action will not be reviewed; Frankland v.
Cassaday, 62 Tex. 421, where facts same, held res judicata applied;
Groesbeck v. Golden (Tex. Sup.), 7 S. W. 365, holding recent decision
of supreme court, contrary to all other decisions, is not stare decisis.
Mortgagee cannot Enforce Mortgage Lien against homestead
though children have attained majority.
See note, 56 L. B. A. 59.
44 Tex. 255-273, HARBISON T. BOBINQ.
A Deed Oonveyihg "All Bight and TiUe to" Certain Land, and war-
ranting the title is only a quitclaim deed, and conveys only title of
vendor.
Approved in Hunter v. Eastham, 95 Tex. 653, 69 S. W. 68, Tate v.
Kramer, 1 Tex. Civ. 434, 23 S. W. 257, and Johnson v. Williams, 37
Kan. 181, 1 Am. St. Bep. 245, 14 Pac. 538, all following rule; Taylor
V. Harrison, 47 Tex. 460, 461, 26 Am. Bep. 308, 309, where deed from
heir unregistered, affirming deed by administrator; Milan Co. v. Bate-
man, 54 Tex. 169, holding certain purchasers under quitclaim charged
with notice; Benick v. Dawson, 55 Tex. 109, holding purchaser from
bankrupt took with notice; Carleton v. Lombardi, 81 Tex. 357, 16 S.
W. 1081, Culmell v. Burroum, 13 Tex. Civ. 461, 35 S. W. 943, Shepard
V. Hunsacker, 1 Posey U. C.. 583, 584, and Fletcher v. Ellison, 1
Posey U. C. 670, all construing deeds as quitclaims; Threadgill ▼.
Pickerstaff, 87 Tex. 522, 523, 29 S. W. 758, where language unambigu-
ous, construing deed as quitclaim. See note, 29 L. B. A. 34.
Distinguished in Halbert v. De Bode, 15 Tex. Civ. 630, 40 S. W.
1018, reversing where equitable owner failed to show notice in legal
owner.
But If the Deed by Its Terms conveys the land itself, then vendee
is "bona fide" purchaser, and is vested with any title acquired after-
ward by vendor.
Approved in King v. Quincy Nat. Bank, 30 Tex. Civ. 95, 69 S. W.
979, where vendor's lien note recited in recorded deed assigned before
maturity, and thereafter vendor accepted reconveyance reciting can-
cellation of note and release of lien, which was recorded, and resold
land taking lien notes, mere indorsement of latter notes in blank not
prima facie proof of purchase before maturity without notice;
Holmes v. Johns, 56 Tex. 53, confirming title in innocent purchaser
from heir; Adams v. House, 61 Tex. 641, holding on issuance of
patents to vendor title vested in his vendee; Lindsay v. Freeman,
83 Tex. 265, 18 S. W. 730, where heirs, having conveyed, subsequently
acquired title, held passed to vendees; White v. Prank, 91 Tex. 70,
40 8. W. 964, 32 L. B. A. 825, holding grantee innocent purchaser
ON TEXAS EEPOETS. 44 Te«, B55-B7S
n to bav« 'bean convejad bj' t«ims of fhe
r otb«T circumstaneeB.
Ward, 41 Tei. Cit. 235, SI 3. W. 238, fol-
ift, 29 Tei. Civ. 63, 67 S. W. 1068, con-
aim deed; Baleh y, Arnold, 9 W70. 29, SQ
I eonrejing right, title and interest of
Jtle agaicBt all clainiB excepting title to
ig only naked poueasion to part, the fee
awing title to fee And not merelj a quit-
laring been (2,000; Thorn t. NewBon, 64
eonstruiag bond for titl» as absolute con-
(Tei. 8up.), 1 8. W. 37*, holding grantees
claimantB under prior qnitelaim deed lost
ibatdBon T. Levi, B7 Tei. 364, 3 S. W. 44S,
«. Cir. 6SE, SS S. W. S52, both construing
Qce; nU V. Maaquez, 1 Posej' U. C. 660,
not exclude sbowing innocent purchaee for
(Tex. Civ.), 36 8. W. 917, holding where
rhether deed is quitclaim merely, eircum-
; Hanrick v. Gurley {Tei. Civ.), 48 8. W.
ir deed reciting seisin in fee and right to
to convey only grantor's right, is bona fide
m. Dec. 573.
in V. Adams, 74 Tei. 103, 11 8. W. 1073,
aim where price grossly insdequatc; Bu-
328, 44 N. W. 463, construing purchase as
consideration; Laurens t. Anderson (Tex.
Ig language and eircamstsnces being con-
litclaim, it i> so held; Peterson v. UcCau'
. S£9, holding instrnment, though reciting
grantor to make warranty deed bond for
ex. Civ.), 24 8. W. 98S, holding adequacy
d in determining character and ■□fficiency
Sanborn, 41 Tex. Civ. 70, 91 8. W. 1097,
ded tract and sold lots and on plot strip
Baerved for railroad purposes," owner and
ng strip for purposes other than railroad;
9 Tex. 357, holding abandoned conrthoase
for purposes inconsistent with dedication;
!Z. SSO, where boundary acquiesced in and
parties bound; Corporation of Sequin- v.
re market built on square, sastaining suit
V. Dnran, 67 Tex. 264, 3 S. W. 268, citing.
re party abandoned land; Kiaien v. Brown,
4, where riparian owner built dams, held
from denying use of them; Evans v. Qalf
!8 8. W. 904, holding land owner could not
; Loustannau v, Robertson, 21 Tex. Civ.
44 Tex. 274-296 NOTES ON TEXAS REPORTS. 588
87, 50 8. W. 490, holding purchaser acquired right of way through
alley; Weynand v. Lutz (Tex. Civ.), 29 S. W. 1099, holding where
owner of land bordering on creek divides it into lots and reserves
use of water to purchaser, easement is created. See notes, 31 Am.
St. Rep. 718; 49 L. R. A. 516.
44 Tez. 274-275, SIVEItT V. STATE.
A Recognizance Charging Defendant with making threats names
no crime, and is a nullity.
Approved in McLaren v. State, 3 Tex. Ap. 682, where held no such
crime as "malicious mischief"; Schultz v. State, 135 Wis. 649, 114
N. W. 507, to threaten to accuse one who is member of county board
and also engaged in business of accepting bribe is not offense under
Stats. 1898, sec. 4380; United States v. Sauer, 73 Fed. 677, or "re-
ceiving and concealing smuggled goods."
44 Tex. 275-283, MOBELAND T. BABNHABT.
The Intent to Designate a Homestead must be shown by unmis-
takable acts before it will avail against a purchaser before occupa-
tion.
Approved in Scott v. Dyer, 60 Tex. 138, holding sale of part of
homestead lot not abandonment; Kempner v. Comer, 73 Tex. 203, 11
S. W. 196, enforcing mortgage where designated homestead dis-
claimed; Dobkins v. Kuyendall, 81 Tex. 183, 16 S. W. 744, holding
evidence sufficient to show homestead intention; Cameron v. Geb-
hard, 85 Tex. 614, 34 Am. St. Rep. 834, 22 S. W. 1034, holding evi-
dence established homestead character of property; Stark v. Ingram,
2 Posey U. C. 636, holding mere intention did not suffice. See note,
70 Am. Dec. 295.
An Absolute Deed may be Shown to be a trust by parol evidence.
Approved in Howard v. Zimpleman (Tex. Sup.), 14 S. W. 61, re-
affirming rule; Long v. Fields, 31 Tex. Civ. 244, 71 S. W. 776, parol
trust created by deed absolute which is really mortgage not affected
by denouncement of registration law; Edwards v. Norton, 48 Tex.
298, holding unsupported testimony of plaintiff insufficient; Abra-
hams V. Vollbaum, 54 Tex. 230, citing, but not applying rule; Pierce
V. Fort, 60 Tex. 471, holding charge that deed must be proven mort-
gage by at least two witnesses erroneous; Miller v. Yturria, 69 Tex.
554, 7 S. W. 209, holding charge that conditional sale not mortgage
correct; Hamilton v. Flume, 2 Posey U. C. 696, holding testimony of
grantor insufficient. See note, 62 Am. Dec. 539.
Distinguished in Toole v. Dibrell (Tex. Civ.), 29 S. W. 388, where
jury found that plaintiff's grantor did not use defendant's money
in purchasing land, whether plaintiffs were bona fide purchasers
is immaterial.
In an Action to BecoTer Land, a foreclosure will not be decreed
unless prayed for.
Approved in Nye v. Oribble, 70 Tex. 461, 8 S. W. 609, sustaining
amendment to foreclose lien; Williamson v. Wright, 1 Posey U. C.
721, reaffirming rule.
Distinguished in Jackson v. Dupree (Tex. Civ.), 57 S. W. 608, grant-
ing relief on original debt where facts permitted.
44 Tex. 28&-296, MABBT v. HARBISON.
It is Proper to Snbmit Special Issuee to the jury where verdict
must cover them.
3 ON TEZA8 BEFOSTS. U Tex. 2S6-309
'. Myers, 1 Poaaj V. C. 105, nvening where
special verdict.
s Defeated hj Hubsequeutlj setting ap the
T. Arrendale, 30 Te«. Civ. SOS, 71 9. W.
iRtead, lien on which had gone to judgment,
0 advance mone; to pay debt, and buys in
iveyed to Owner, homestead right is aubor-
•d; Baird v. Trice, 51 Tex. 559, enforcing
:ead aet np; Brooke v. Chatham, 57 Tex. 34,
73 Tex. 203, II S. W. 196, both foltowiag
Poaey U. C. 141, enforcing sale by pre-
led.
V. Ward, 60 Tex. 408, 409, referring to priu- .
case at bar being an outgrowth of it.
UN V. OABTWBiaHT.
Execated hj an Agent is admisaible against
ative interest in land attempted to be eon-
;aau, 40 W. Ya. ISO, 20 S. E. 917, admitting
tabliflh quantum meruit.
clpal in an executory contract for sale of
ithority.
Kosmjroski (Tex. Civ.), 27 S. W. 1044, re-
70 Am, Dec. 3S1.
.elman v. Keating, 72 Tex. 320, 12 S. W.
where not ratified by deed; Hiil v. Conrad,
), where deed did not recite that it was ex»-
reference could not be made to power.
llndlng, although one of the parties bad no
'. Osborn, 62 Tex. 497, awarding particular
ide improvementa; Johnson v. Johnson, 65
verbal partition between brothera, although
icquired; Stringfellow v. Elsea (Tex. Civ.),
.gent's right to commission for selling land
sale thereof, and not barred for four years,
?onormanc«, all interested should be made
!. By. V. Barnard etc. Mfg. Co., 1 Kan, Ap.
husband's assignee could sue to enforce a
e; Ebell v. Bursinger, 70 Tex. 122, 6 S. W.
ry necGBsary party; Knopf v. Chicago Beal
'9, 50 N. K eeo, holding park commissioners
case. See note, S6 Am. Dec. 626.
of Austin V. Cahill, 99 Tex. 191, 88 3. W.
jal title to fund raised by taxation in trust
ot necessary parties to mandamus in opposi-
▼. ISXA8 ETC. B. K.
. for Want of JurlBdlctton mnat distinctly
soonty where suit brought.
V. J. Burns (Tex. Civ.), 24 8. W. 37, and
X. Civ.), 29 S. W. 69, both reaffirming rale;
44 Tex. 314-319 NOTES ON TEXAS BEP0BT8. 590
Houston etc. B. B. t. Qravea, 50 Tax. 201, aaBtaining exception to
plea that piiueipal office in another countj; Stark v. Whitman, 5S,
Tez. 376, holding plea of personal privilege insafficient under mle;
International ete. Rj. v. Nicholton, 61 Tez. 552, holding defendant
attacking jnrisdiction foT fraadulent statement of amount should
plead it; Carothen v. Mcllbennj, 63 Tez. 147, following mis; Uc-
Dannell t. CbenT-, 64 Tex. 179, sustaining jurisdietioa where amount
stated not pleaded to by defendant; Crawford t. Carothers, 66 Tez.
200, 18 8. W. 500, in action on warranty holding plea bad; Lind-
heim V. Davis, 2 Tez. Ap. Civ. 07, holding plea insufficient in action
for money loaned; Turman v. Bobeitson, 3 Tez. Ap. Civ. 263, also
in action on note; Burehard v. Becord (Tex. Sup.), IT S. W. 242,
holding plea in abatement foi want of jurisdiction fatally defective
unless excluding exceptions conferring jurisdiction.
tf tho Title of a Law indicates the object of any sections in it, the
whole law ia not void.
Approved in Houston etc. B. B. r. Willie, 53 Tex. 325, not pass-
ing on the act of March, 1S74, where service not had nnder it;
Stone V. Brown, 51 Tez. 343, holding act of February, 1881. relat-
ing to commission of arbitration constitutional; State v. Parker,
61 Tex. 207, also act of February 11, 1S50, validating patent to salt
lake; Dry I^nd ete. Co v. State, 6S Tez. 542, 4 S. W. 872, also act
of Febrnary 25, 1879, relating to land in Greer county; Albreeht v.
State, 8 Tez. Ap. 220, 221, 34 Am. Bep. 739, also "Bell-pnnch Law"
of April 3, I87»; Fahey v. State, 27 Tex. Ap. 159, 11 Am. St. Bep.
184, 11 S. W. 109, also acts of March and April, 1881, relating to
tax on liquors; Nichols v. State, 32 Tez. Cr. 404, 23 S. W. 682, also
act of February 25, 1887, amending Fenal Code; Qerman Ins. Co.
Y. Luckett, 12 Tez. Civ. 142, 34 8. W. 174, also act of March 4, 1891,
relating to stipulations to sue; Abeel v. Clark, 84 Cal. 228, 24 Pbc.
383, also act of 18S9, relating to vaccination of school children;
Preston v. Pinley, 72 Fed, 857, also act relating to taz on sale of
foreign newspapere.
Distinguished in Qiddings v. San Antonio, 47 Tex. 556, 26 Am.
Bep. 327, holding twelfth section of act of Septembsr S, 1850, estab*
lishing San Antonio Bailroad unconatltutional,
nie tTsiul Practice is that if plea of abatement is found in favor
of defendant, the jury should go no farther.
Sustained in Blum v. Strong, 71 Tex.' 329, holding dilatory plea
waived where trial had on merits; Kelso v. Adams, 2 Poeey U. C.
376, holding consent to continuance and arbitration waiver of juris-
diction.
44 Tex. 314-319, JAMES V. STATE.
Wliera SbertlT Flr«d on PilMHier attempting to escape, held un-
lawful act of Bheriff could be set up to cztenuate olFense committed
by priaooer in returning Sre.
Approved in Alford v. State, 8 Tex. Ap. 564, holding killing for
unlawful arrest not murder. See notes, 61 Am. Dec. 163; 67 L. B.
A. 304; 66 L. B. A. 374.
Sberts may Use Such Forc« as is necessary to overcome resistance
to lawful authority in recapturing prisoner.
See note, 67 L. H. A. 303.
Wliere Officer Is JusUfled by His Authority and eierciees author-
ity in Ipgal mauner, nod is killed in course of resistance, it is murder.
See note, 66 L. B. A. 355.
tTES ON TEXAS EEPOBTS. 44 Tex. 31B-353
nST. AUES.
?n>b«ta ia pienmed valid, sod can odIt- be &t-
«eding.
rt T. D« Bode (Tei, Civ.), 28 8. W. 59, reaffirm-
II L. B. A. 6S2, 6S4.
Texas weia kgnliz^d by the laws of 1837 sna
■gea were civil contracU capable of being nis-
the partiea.
V. Eubbj, 4ft Tex. 711, balding gift to aoldier
^into separate property; Morgan v. Morgao, 1
?. 155, holding woman living with man as wife
y; Weirtern Union Tel. Co. v. Procter, 8 Tex,
813, holding marriage of girl fifteen without
\j V. Henderson, 6 Tei. Civ. 525, 25 B. W. 676.
■laves with eonaent of master valid; Ingersol
:iv. 656, 30 8. W. 61, holtling marriage of inao-
lieenae good; Simmona v. Simmona (Tex. Civ.),
g engagement to marry, followed by cohabita-
of marriage, eoncluaive o! common-law mar-
101 Ind. 135, 51 Am. Bep. 747, eustaintng mar-
i; Sharon v. Sharan, 79 Cal. 670, £2 Pac. 37,
oufM and agreement to be hvabsnd aod wife
UcLaughtin, 4 Wiaeh. 583, 30 Pac. 656, 18 L. B.
iment to live together did not constitute mar-
ts cAimot be Pleaded against legatees not cited
tition.
uilford v. Love, 49 Tex. 733, holding heirs not
kction against administratoT to enforce bond to
awson V. LawiOD, 30 Tex. Civ. 48, 69 8. W.
in good faith lived with defendant, believing
id, but there was do legal marriage, she is ea-
I of property acquired by joint efforts during
thieh had before been conveyed by properly
if gift creates no presumption that deed had
BT T. TTI^B.
Of 1860, mayor has no authority ■■ "ex-oSeio"
ba V. State (Tex. Cr.), 47 8. W. 164, 188, re-
iirte Anderson, 46 Tex. Cr. 375, 81 S. W, 673,
jurisdiction over violation of state law; Milll-
54 Tex. 392, holding district court could man-
rte Coombs, 38 Tex. Cr. 657, 658, 663, 44 8. W.
', jnrisdtf^tion of corporation courts repealed by
and 1B91; Ex parte Knox (Tex. Civ.), 39 8.
ilature has no anthority to make city recorder
the peace"; Ex parte Coombs, 38 Tex. Cr. 670,
16, holding jualices' courts limited to cases not
trte Wilbarger, 41 Tex. Cr. 519, 55 8. W, 971,
constitution legislature jnay establish corpora-
44 Tei. 353-365 NOTES ON TEXAS EEP0BT8. ED2
tioQ courts for municipalities; Es parte H&rt, 41 Tex. Cr. S9I, GS
8. W. 345, in disaenting opinion, majoritj holding legialature antbor-
ized to cieate corporation court for city.
Distinguished in Qibbans v. Braden, 1 T«z. Ap. Civ. 128, BDStaiu-
iug juTiBdiction of mayor to prosecute violation of option law.
44 Tex. 353-355, HOBBS v. STATE.
Wtiere Indictment Did not Allege Entij by force, held erroT to
instruct that punishment be increased.
Approved in Wilcoi v. State, 45 Tex, 147, reversing for excessive
punishment under similar charge; Searcy v. State, 1 Tax. Ap, 444,
reversing for erran«ouB charge on punishment.
Whera OonvlcUon of Bnrslary on Indictment joining theft and
burglary, held not ground for arrest of judgment.
Approved in Black v. State, IS Tex, Ap. 12T, sustaining indict-
ment for burglarious entry with intent to steal,
44 Tex. 35e-S65, OILLELAND T. STATE.
Self-defense cumot be Fleadad wbere one voluntarily engages In
» dangerous combat, or wbere his own wrongful act necsBBitated
kitliog of another.
Approved in Hollia v. State, S Tex. Ap. 623, sustaining charge
under rule; Logan v. State, 17 Tex. Ap. 60, Cunningham v. State,
17 Tex. Ap. 97, Gonzales v. State, 28 Te». Ap. 136, 12 a. W. 735;
Wilson V. State (Tex. Cr.), 36 8. W. 58S, holding defendant not de-
prived of right of self-defense by going armed to place where
deceased was encroaching ou his land; State v. Hatfield, 48 W. Va.
573, 37 S. E. 632, Sullivan v. State, 31 Tex. Cr. 488, 37 Am. St,
Rep. 827, 30 8. W. 928, and People v. Hecker, 109 Cal. 462, 42 Pac.
312, 30 L. K. A. 403, all following rule; Roberts v. State, 30 Tex,
Ap. 306, 17 S. W. 454, holding facts did not constitute abandon-
ment of contest; State v. Cain, 20 W. Va. 700, sustaining instruction
on doctrine of "retreat." See notes, 109 Am. St. Rep. 813; 45 L.
B. A. 689, 692, 694, 699, 701.
Distinguished in Green t. State, 12 Tex. Ap. 449, holding charge
abould include "contest provoked without intention to kill"; King
V. State, 13 Tex. Ap. 2S4, holding charge insufficient; BrasEil v.
State, 28 Tex. Ap. 587, 13 8. W. 1007, reversing where defendant
had withdrawn from combat; Misher v. State <Tex. Cr.), 22 S. W.
002, holding there can be no self-defense in case of mutual combat
with deadly weapons, willingly entered into.
Wll«e Omrt Bafnsed to Charge that accused could seek deceased
bx order to compel him to retract a charge, held not error.
Approved in Nash v. State, 2 Tex. Ap, 366, sustsining charge on
conditional threats; Williama v. State {Tei. Cr.), 25 8. W. 788, hold-
ing person seeking deceased with intent to kill him unless charge
was retracted guilty of murder in 6rst degree.
It Is in Discretion of Judge to grant new trial for misconduct of
juror, and affidavits of jurot are admissible to vindicate alleged
misconduct.
Approved in Davis v. State, 3 Tax. Ap. 102, sustaining verdict
though jury separated; Cox v. State, 7 Tex. Ap. 4, affirming where
no injury shown.
Distinguished in Anschieks v. State, 6 Tex. Ap, 540, reversing
where jury influenced by opinion of juror; Long v. State, 38 Tex.
Ci. 145, 22 S. W. 110, reversing for bias of juror.
S ON TEXAS BE:P0BT8. 44 Tex. 365-380
Intiud Tluwata and parties came together
theiB i* no self -defense.
703, 705.
T. DBOUTHETT.
t VTatranty between tbe cotenanti u long
ell V. CoDiaud, B Tex. Civ. 567, 29 8. W.
ale did not carry warranty.
Tean' Statute muat be contianed, notorious,
T. McMichael, 46 Tex. 228, cited approv
rule irbere defendant failed to prove pos-
irange, 60 Tex. 63S, admitting declaration
show adveiae poBsession; Bracken v. Jones,
toHure of small piece not adverse posseasion
Cartwright, 65 Tex. 423, aoTtaining adverse
passer; Battcrnhite v. Bosaer, 61 Tex. 171,
idverse; Oary v. Baunders, 77 Tei. 282, 13
was declared to be held nnder otbets, beld
Cain, 77 Tex. 318, 14 B. W. 24, alio wbero
from owner; Beall t. Evans, 1 Tex. Civ.
ersing where adverse poaseBaion by tenant
Preston v, Hilbnrn (Toi. Civ.), 44 8. W.
charge that what will constitute adverse
tfined, but depends on facts of case; Mc-
Civ.), 50 S. W. 629, holding posaession not
incloses, but does not use, amall strip of
8M Up against landlord by tenant unless
knowledge of landlord.
V. Henderaon, 60 Tex. 206, holding facts
andlord and tenant; Bogors v, Grigg (Tex.
ding relation of landlord and tenant, being
and owner, is ao fixed as to others; O'Con-
), 29 S. W. 921, holding posaeasion not ad-
ik of landlord and tenant continues; Hintze
. Civ.), 44 S. W. 39, holding tenant cannot
while retaining possession acquired as ten-
WiMnt of one of several eotenants creates
tenant's posseasion adverse, disclaimer of
brought home to landlord-
Btate, 1 Tex. Ap. 473, Walker v. Btate, 7
U V. State, 18 Tex. Ap. 221, all following
erry v. State, 1 Tex. Ap. 667, holding in-
' county attorney good.
M T«x. 3S1-3S9 NOTES ON TEXAS BBPOBTS. SH
An Indictment Uer«lr Defective in form esn be amenilpd.
Approved in Townaead v. Btate, 5 Tex. Ap. S75, suataiutDg eor-
reetion of record by snteriog name of offenae.
Qualified in Collini v. State, 6 Tex. Ap. 648, tiolding; omineioD of
venue fatal; OBborne t. State, 23 Tex. Ap. 443, 5 S. W. 2S2, bolding
amendment after annooocement of "ready" erroneoos.
Exception ta Bejectl«i of Eridence should state wbat was in-
tended to be proven by witness.
Approved in Penningtan v. McQueen (Tex. Sup.), 3 8. W. 318,
reafflrming rule; Coatea v. State, 8 Tex. Ap. Ifl, 17, holdins exception
could not be taken by motion to arrest; Bobinson v. State. 3 Tei.
Ap. 257, where "res gestae" not set out; Kelley v. HighfleM, ]5
Or. ?B3, 14 Pac. 7S7, following rule in action for breai-h of promise.
Pioof of Having Btolen t, "Horse," where indictment charged
theft of "gelding," may eonstitate fatal variance.
Cited in Pigg T. State, 43 Tax. 112, but not applying mle.
Exception to Fonn of Indictment tniut be taken prior to trial of
Approved in Long t. State, 43 Tei. 470, objection that imlii-tment
fails to show it was presented in any court cannot be first mads on
motion in a nest of judgment.
44 Tex. 381-383, BKADFOBD ▼. JOHNSON.
On Suggestion of Delay, svpreme court will Inquire into eiror»
going to merits or foundation of action.
Approved in Uissouri etc. By. v. Patterson, S Tex. Ap. Civ. 714,.
holding findings insufficient to support damages to grass and turf.
See note, 46 L. B. A. 486.
Uarried Woman cannot Enter Into Partnership witb third persons
for manufacturing bricks.
Approved in Brown r. Cbaneellor, 61 Tex. 445, where married
woman formed partnership with husband and another. See note, 31
Am. St. Bep. 634.
Interest of Partner is subject to levy and sale.
Approved in Meyberg v. Steagall, 61 Tex. 354, upholding levy en
interests of partner; Lee v. Wilkins, 63 Tex. 299, upholding seizure
under writ,
44 Tex. 384^86, BOONE T. BEVIS.
State Courts bave Jurisdiction to enforce lien against discharged
bankrupt.
Approved in Spring v. Eisenach, 61 Tex. 435, holding one holding
under sheriff's dsed had superior title to bankrupt lieu; Bassett ▼.
Praetzet, S3 Tex. S80, and French v. Pyron, 2 Posey U. C. 720, both
following rule.
44 Tex. 386-388, GIDDINOS T. HEISKTiT.T..
Wbere Tbere was No Allegation of Mistake or Fraad in admiai*'
trator's sale, held deficiency could not be recovered.
See note, 76 Am. Dee. 114.
44 Tex. 3BS-3B0, DABKAH ▼. 'WESTEBLAGE.
The Writ of Habeas Ooipus cannot be used as appeal or writ of
error, and only juritdiction can be inquired into under it.
Approved in Milliken v. City Council, 54 Tei. 392, holding district
court could enforce judgment against mayor by mandamus; Ex
3 ON TEXAS REPORTS. U Tex. 380-106
Ap. SI, ifhere major had aseumed jurisdie-
laite CrU, 2 Tex. Ap. 502, gnatainiDg juris-
onvicting road hand; Griffin -t. State, 5 Tex.
cquittal pleaded; Zz paite Baland, 11 Tez.
rUdictioD to impose fine could onl}' be eon-
rhetber proceedings were voidable or not;
[. Ap. S42, refusing wiit where applioanls
diptriet eonrt; Ex parte Diokerson, 30 Tex.
refnsing writ where judgment imposing Are
i; Ex parte Crofford, 39 Tex. Cr. 549, 47 S,
there former jeopard;- pleaded. See notes,
:-. E. A. 695.
or Injunction will be dismissed where plain-
tinnanee, sod offer to amend.
ieComas, S9 Tex. 4S5, snataining dismiasBl of
} Tex. G31, where demnner to defendant's
led, held res adjudicata.
Co. V. Bebnlz, 63 Tex. 34, reversing whera
etition be retained; Love v. Powell, 67 Tex.
holding error to disniiaa becauae no demand
nguishing principal ease.
I failing to show ground for relief is prop-
owell, 67 Tex. 1«, i 8. W. 456, arguendo.
>rfonnanc« should state facts, eousideration,
ith certainty.
ones, 49 Tex. 600, holding petition defective;
r.), 31 8. W. 244, holding burden on defend-
e, claiming under oral contract to convey to
ea y. Ivey, IS Tex. Civ. 294, 39 8. W, 158,
ell, held did not eonstitots promise to con-
A. 111.
ATBICIO ▼. UcOIiANB.
Abor payable iu Confederate money may be
, Dittman, 47 Tex, 375, follovring mle in
iwis V. Alexander, Gl Tex. 690, holding re-
it illegal cotton contracts.
rnly, IfttO, all elaima against counties mnst
red.
3o. V. Beethe, 44 Tex. 449, holding payment
order of district judge, unaothoriied; Atbe
SI, holding county warrants do not bear
lated; Nolan Co. v. Simpson, T4 Tex. 222,
reditor of county eoold not retain funds in
'. MATHEWS.
•anda under the five years' statute is il-
44 Tex. lOe-417 NOTES ON TEXAS BEPOBxa E96
Approved in Drexler t. Tyrrell, 15 Nev. 134, refuaing foreclosare
of mortgage made to avoid tsxes; Teague t. Williams, 6 Tex. Civ.
473, 25 S. W. 1050, refusing to set aside deed on ground that giTen
to dismiBH criminal action.
Bnl Ooualderatlon of a De«d maj be shawn by parol evidence,
and only nominal damagea could be recovered for eviction from lao.i
for which no conmderation paid.
Approved in Houston etc. By. t. Jackaon, 62 Tex. 213, granting
eight per cent interest for nondelivery of goods; Nortbington v.
Tuohy, 2 Tex. Ap. Civ, SS3, holding larger consideration than deed
showed could be proven by parol; Byars v. Byars, 11 Tez. Civ. 5GT,
32 S. W. 920, excluding parol to ihow consideration not caih; Texas
etc. Coal Co. t. Lawson, 10 Tex. Civ. 497, 31 8. W. 846, excluding
parol to establish larger consideration in lease.
Distinguished in Boone v. Mierow, 33 Tex. Civ. 295, 76 8. W.
772, parol evidence of consideration additional to that stated in
written agreement inadmissible when consideration for agreements
of one party in undertaking of other, and both are stated io writing.
44 Tex. 406-409, QBIFFIN ▼. OHADWIOK.
Exception! to OvBmilJng Depotltions ihould contain the depori-
Approved in Hemdon v. Do Cordova, 22 Tex. Civ. 206, 54 S. W.
404, following rule in trespass to try title; Pennington v. McQueen
(Tex. Sup,), 3 8. W. 316, holding party complaining of exclnsion of
evidence must show what evidence was.
Wbere Time of Interest can be Aseertalned from pleadings, a
verdict for interest and Mm certain is good.
Approved In Alamo etc. Ins. Co. v. Schmitt, 10 Tex. Civ. 555, 30
8. W. S36, correcting item of interest in judgment; Buchanan v.
Townsend, 80 Tex. S36, 16 8. W. 316, sustaining verdict for sum
certain, and "attorney's fees"; Louisville etc. B. Co. r. Fort, 112
Tenu. 462, SO 8. W. 437, where verdict in damage case is tor certain
snm and interest, court may compute and include interest in judg-
44 Tex. 400-411, QBIFFIN ▼. OBADWICE.
On Dissolution of Injonction obtained by third party to restrain
sale of his property by judgment creditor, he is not liable for the
whole judgment.
See note, 62 Am. Dec. 524.
44 Tex. 412-417, HABVET V. McOBEW.
A Subtenant Is not Liable to I^andlord on eovesantt of tenant,
but an assignee is liable.
Approved in Wooldridge v. Ft. Worth etc. By. Co., 88 Tex. Civ.
553, 86 8. W. 943, where railroad's lessee sold coal-house on right
of way to A, and A leased house to B without reference to original
lease or consent to assignment, and B paid rent to A without knowl-
edge of lease, B was subtenant; Beck v. Minnesota etc. Grain Co.,
131 Iowa, 67, 107 N. W. 1034, 7 L. B. A. (n. e.) 930, where sub-
tenant was cropper and entered land after September, 1901, and
sold crop to thiid party, suit by landlord in August 1904, against
third party for value of crop, where commenced within year after
teuant'a rent due after lapse of year from time subtenant's rent due,
TES ON TEXAS BBPOKT& 44 Tex. 4]8-430
■ectioD E992; GibBOn v. Unlliean, 58 Tex. 432,
liable for debt of tenant; Le Oierse v. Green,
atBignesH liable held question for jury; Gid-
». 178, T S. W. egs, HuatainiDg flndiags that
itraeted to pay rent for eertain year; Knight
>. GiT. S3, following rule; Loustaunau v. Lam-
, EO 8. W. 940, holding acceptance of tnb-
! lien for rents. Bee notes, 15 Am. Dee. 544;
63; 117 Am. St. Bep. 99; 14 L. B. A. 151.
are not subject to diatresa for rent of tenant
Hogae, I Tex. Ap. Civ. 324, holding landlord
OD of subtenant.
rreat t. DurneU, 86 Tex. 650, ES S. W. 482,
lien on crops of subtenant; Stokes v. Burnej,
W. 127, ainea act of March 14, 1S7S, crop* of
ma T. White, 57 Tex. 3«4, whore offlcera had
fanees; Busbar ▼. Dallas, 83 Tex. 1S2, 18 S. W.
:er exceeded his authority in making arrest;
Tex. 433, 31 Am. St. Bep. 71, 19 B. W. 567, '
ire ptdicemau shot nnmoETJed dog; Givens *,
, 24 S. W. 974, where policeman failed to pre-
ing gorad by cow; Bates t. Houston, 14 Tex.
t, where health officera wrongfully quarantined
San Antonio, 22 Tex. Civ. 142, 54 S. W. 49,
)«n axreited and convicted aa suapicioul ehtir-
I. B. A. S94; 44 L. B. A. 799.
»nifl7 who afterward takes in partner, who
lecome liable to firm for fee agreed to be paid
irith partner about case,
i.. (n. a.) 707.
STON ETO. BT. v. BTAM.
aquallfied because be had formerly given an
title of land in question.
t Aostin V. Cahill, 99 Tex. EOl, 89 3. W. 552,
because he had been counsel in another case
matter in dispute are different; Shaw v. Cade,
[ ease to docket where erroceouBly changed;
54 Tex. 406, holding mere interest did not
come T. Light, 58 Tex. 14S, 44 Am. Bep. 609,
counsel in former divorce proeeedinga; Qlaaa-
ex. 469, where judge had formerly been con-
King V. Bapp, 66 Tex. 520, 2 S. W. 574, where
ry interest; Dodson v. Bunton, 81 Tex. 657,
ng where venne changed becaase county en-
e, 82 Tex. 485, 18 S. W. 591, where judge bad
timent suit; Wilks t. State, 27 Tex. Ap. 38j,
i4 Tex. 430-442 NOTES ON TEXAS SEPOBTS.
Jl 8. W. 416, where judgs had been district Attorney
tried tbe case. See note, 2S L. R. A. 115.
DiBtingaisbed in EabaiiFk t. QalvGBtan etc. B^., TS
S. W. 57], Tampa 8t. Kj. etc. t. Tampa ete. E. B., 30
11 So. 562, 565, IT L, B, A. 881, »nd Slaven v. Wbeeli
all bolding judge who bad given opinioa as counsel
Grabsm T. State, 43 Tex. Cr. 113, 63 8. W. 660, -wh
had been client of judge.
44 Tax. 430-433, BEOS T. STATE.
PosBMslon of Stolen Uiil» two yean after tbeft doi
presumption of guilt from recent poeBesHion.
Approved in Bvang v. State, 15 Tex. Ap. 37, boli
aufficient to BUBtain theft; Boberts *. State, IT Tex. i
lug wbere poeaeuion explained; Bragg t. State, IT
where defendant in poaeession of borse after six montl
State, IS Tex. Ap. ITS, SI Am. Bep. 302, where defem
of forks and apoona ^ear after; Bomero t. State, ZS T
8. W. 64S, wbere defendant bad horse three fear* a;
note, 70 Am. Dec. 4S0.
44 Tex. 434-438, LONOOOPB ▼. BBUOE.
A Judgment in Favor «r Ona of Two Joint PlaintUC
Approved in Uooie t. Moore, OT Tex. 2ft7, 3 S. W.
where jur; erroneouelj foand for defendant for "ouo'bi
land.
Ooodf of Fartnet mny be seized and sold under exe
Approved in Lee v. Wilbina, 65 Tex. 299, following
brook V. Zapp, 73 Tex. 31, 10 8. W. 734, holding -n
recover, aa damages not separate estate. See note, 46
Overruled in Cnrrie v. Stuart (Tex. Civ.), £6 8. W
partnership cannot be sold on execution against one
adoption of article 2205, Bevised Statutes.
A Judgment Creditor is not Llatile for Oooda leit
unless he instigated the levy, and the judgment debtor 1
In the goods.
Approved in White t, Btribling, 71 Tex. 109, 10 Am
9 8. W. 82, holding landlord not liable for seimre of
Distinguished in Brwin v. Sowman, 51 Tex. 519, boli
creditor liable where he adopted acts of sheriff; Ca]
Shoe Co., 81 Tex. 108, 16 8. W. SIS, holding makers
bond liable; Evans Co. v. Beeves, 6 Tex. Civ. 238, 1
holding plaintiff in attachment proper party to action
Indemnity Bond Executed to Sheriff after levj do
maker of bond liable as joint trespasser for levy.
Denied in Hines v. Norris (Tex. Civ.), 81 8. W. 7
bond given constable after illegal levy to induce him
property is enforceable against sureties.
44 Tex. 439-442, WAFFOBD V. STATE.
Ordinarily One Witness Is Insufficient to impeach
of another for truth and veracity.
Approved in Butler v. State, 3 Tex. Ap. 49, followl:
prosecutor only witness; Bostick v. State, 11 Tex. Ap
I ON TEXAS EBP0BT8, M Tei. 442-
iSBible, though eanmlative; Rider v. 8l
^ 690, holding evideoea insufficient to
oUn Article is ioeoiiBlgteiit with gailt w'
itigerald, 72 Vt. 146, 4T AtL 405, foUoi
red in indietnient tor
State, 47 Tei. Cr. 605, 84 8. W. 1061,
V, State, 1 Tex. Ap. 171, holding in.
iDSuffieient; Hirach v. State, 1 Tex. Ap.
in T. State, 2 Tex. Ap. 323, suataining
Mate, 15 Tex. Ap. 475, holding neeeasar;
. in reliance on falae pretansee. See i
T. SMITH.
ISTl, repealed the (tatute prohibitiag
V. State, 2 Tex. Ap. 300, holding act
the Penal Code,
mse made b^ prior law and providing
State, 47 Tex. Cr. 32«, 83 8. W. 3S2, .
I 133, repealed Penal Code, article 185,
DD election daj; diaaenting opinion in
. Cr. 116, 105 8. W. 1125, to point that
ing liquor without liceuoe, repealed ac
St. Bep. 293.
State, 4 Tex. Ap. 40, rerereing where
former acquittal; McCampbell v. Stat
for failure to find on former convict
Tex. Ap. 457, 44 Am. Bep. 710, rover
It" degree; Smith v. State, IS Tex. Ap.
'ormer eoaVietiou; Griaham v. State, IB
where evidence euCGeient to put plei
: Utah, 271, 30 Pae. 080, applying rul
ifectiv*, held error to exclude evidene
etc. Bj. T. Philips, fl3 Tex. 592, auatai
show damagea for dela^ of "gooda check
*osey V. C. 536, where defendant wi
ty ^7 plaintiff, evidence admissible,
ADO OOtTNTT v. BBETHE.
1^ most be Bubrnitted to countj court
larria Co., 55 Tex. 51, holding county
real do not bear interest; I^ooacan v. Hi
44 Tex. 450-464 NOTES ON TEXAS EEP0BT8.
Co., 58 Tex. 514, bolding <1istrict attorney could do
sent of commiSBioDer'* eouit; Nolao Co. v. SimpBo
8. W. 1099, boldiug one negotiating bonds for
Mtain funds aa payment; Bland t. Orr, SO Tex, 1
holding court could not accept land aod notes
claim; ADdersou t. Wlalker (Tex. Civ.), 49 S. W. 9'.
management of county affairs vested in commiss
cept vrbere otbernise Bpecially provided.
HiscellaneouB. — Cited in Spradley v. State, 23
S. W. 116, sheriff ia liable for fine of county cont
payment merely by showing convict lay in jail lo
charge fine and was then released by order of cou
44 Tex. 460-467, DAUaHTBET T. ENOLLG.
A Principal Obtaining BcDeBt of Sale is bonnd
of his agent, although deed actually binds agent.
Approved in Stark v. Homuth (Tex. Civ.), 45 8. '
mle; Faulk v. Dashill, 62 Tex. 647, snstaining sale
made by executor; Bennett v. Virginia Ranch etc
325, 21 S. W. 12S, upholding conveyance by age
Wynne v. Parks (Tex. Civ.), 30 S, W. 55, holding
person as attorney in fact binds principal to ex
attorney.
Wlien Land Is Sold la Oroaa, and through fra
tion, or mistake, there ia material «rror in qnan
veyed by the deed, relief may be had in equity.
Approved in Benfro v. Huling, 2 Posey U. C. 28
ery where the sale wa» in gross, and there ifas
Ghmeral Warranty Dow not Wumnt Qiuuitlt7r
not b« recovered in absence of fraud or mistake.
Approved in Eaton v. Tod (Tex, Civ.), 68 3. W
was for eight hundred acres of tract of wbich par
actual acreage for gross consideration, sale was ii
Hazelwood, 67 Tex. 626, 4 3, W. 216, granting reli
wbere deed conveyed certain land by mistake; E.
Bank (Tex. Civ.), 42 3, W. 125, holding warn
broken by deficiency in quantity; Eaneho Bonita
North, 92 Tex. 76, 45 S. W. 896, where vendee
title, held he could not recover on warranty; Ba
26 Tex. Civ. 114, 115, 62 8. W. 564, 565, holding
recover for deficit; Wnest v. ^oehrig, £4 Tex. C
865, not granting recovery where land sold in gi
Douglass, 5 Tex. Civ. 495, 24 8. W. 368, and Tsi
Tex. Civ. 476, 24 8. W. 3B], both denying recove
take or fraud; Bennett v. LattiBni, 16 Tex. Civ. 4
holding grantee could not recover for mistake froi
Webb V. Brown, 2 Posey U. C, 44, holding deficit
recovered on action on warranty. See notes, 76 Am
Dee. 289.
44 Tex. 457-^64, BIiAOKBUKN T. STATE.
Wliere Ho Evidence That Prosecutor had exelnsi
control of horse, held taking was not theft.
Approved in Bryan v. State, 49 Tex. Cr, 197, 91
indictment for theft of cattle charged their owi
ES ON TEXAS BEP0BT8. M Tex. <ei-180
longed to B and were on!;' redaeed to poesei-
f on hia finding them, which he never did,
sr; Qainei v. State, 4 Tex. Ap. 331, atistiuning
pistol ; Wilson v. State, 12 Tex. Ap. 487,
t of owner not proved, reversing; Moore v
BDstaining conviction where mare taken from
lip; Tinney v. State, 24 Tex. Ap. 119, 120,
; where indietmeDt alleged taking Irom one,
lotber,
there must be intent to permanentlj retain
ing.
State, 1 Tex. Ap. 491, holding facts did not
1. State, 1 Tex. Ap. 492, boldiog court should
to appropriate; Wilson v. State, IS Tex. Ap.
110, 311, lioldisg taking article witbont intent
, not theft; Schultz v. State, 30 Tex. Ap, 94,
for failare to charge on temporarj appropria-
1 Stolen maj' be laid in one holding it as
(n. «.) 315.
HFIELD ▼. OOMBIOT.
Taken from an Order overruling motion to
laf erring a caase to the United States court.
V. Olas?, 89 Yiy. 201, 12 S. W. 195, holding
Dk order removing ea«e to another court. See
ABTE COOPWOOD.
Writ of Habeas Corpus Sustained, and peti-
appeal.
parte Scwarti, 2 Tei. Ap. 81, on gronnd that
ien granted and inquired into.
> V. Halff (Tex. Civ.), 32 S. W. 1053, holding
lyee to conform to intention of parties thereto
'or which given; Otto v. Halff, 89 Tex. 390,
4 S. W. 911, holding original debt could be
in V. State, 14 Tex. Ap. 300, sustaining similar
Itate, IT Tex. Ap. 508, separate opinion, major-
f homicide in perpetration of robber]'. See
ninga T. State, 7 Tex. Ap. 354, holding indict-
in terma "nnlawfully and felonionaly killing,"
alty in verdict of murder is first degree, held
44 T«x. 480-484 NOTES ON TEXAS BEPOBTS.
Approved in Murray v. State, 1 Tex. Ap, 431,
murder good Altbough punishment not aueBsed.
Wlkere Court Cbuged that law implied malice 1
ing, and that burdea waa on defendant, held erro
Approved in Walker v. State, 7 Tex. Ap. 631, ri
that "unlawful killing is on implied malice"; Qui
Ap. 209, reversing for Bimilar charge; Ainawortl
Ap. 535, and Luera v. State, 12 Tex. Ap, 260, bo
the rule; Jouea v. State, 13 Tex. Ap. 10, where
Belf-defenee under "not guilty," reversing.
Distinguished in Brown v. State, 4 Tex. Ap. Z33
on malice; Leonard v. State, T Tex. Ap. 449, sust
burden on defendant to excuse embezzlemcDt a
When Conit Ohuged ThU "Where Conflict bi
pose of killing another," then accused could not
held erroneous.
Approved in Lester v. State, 2 Tex. Ap. 44S, 4
instruction error; King v. State, 4 Tex. Ap. 56,
auetaining conviction of assault to mnrder.
An Offender Utider the Age of Seroiteen Tea
ished with death.
See note, 36 L. B. A. 210.
DiHtJaguished in Ake v. State, 6 Tex. Ap. 404, i
of death where proof of nonage insufficient; ant
ing in Ake v. State, 6 Tex, Ap. 418, 32 Am, Bep, !
of proof on defendant to establish nonage.
44 Tex. 48<HI84, PBIHCE r. BTATE.
Becent TTnezplained FossMsion at stolen prop<
eon si deration of jury.
Approved in Morgan v. State, 25 Tex. Ap. 515
taining conviction where defendant pledged st
debt. See notes, 2 Am. St. Bep. 397; 101 Am. S
E. A. (n. a.) 210.
The District Court cannot Fix a Term of punisi
at the expiration of another.
Approved in Hannaban v. State, 7 Tex. Ap. t
tence for theft under rule; Baker v. State, 11 Tex.
rule in sentence for theft of mare; Ex parte Hun
13 3. W. 146, where article 800, Bevised Code, :
held sentence could not be cumulative; Breton,
42, 74 Am. St. Rep. 336, 44 Atl. 126, holding s
meanor ran concurrently; In re Walsb, 37 Neb. 4
discharging prisoner who served one year under
In re Crow, 60 Wis. 369, 19 N. W. 721, sustaining
oners on habeas corpus. See note, 7 L. R. A. (i
Distinguished in Sbumaker v. State, 10 Tex. ;
cumulative sentence under article 800, Revieed C
James, 52 Ohio 3t. 255, 39 N. E. 806, 27 L. B.
cumulative sentence against escaped convict reeoi
Supreme Court may Beform and C(»rect Jadgi
S208, Faechal's Digest.
Approved in Lanham v. State, 7 Tex. Ap. 141,
for costs in capital case could be corrected.
BXAS EEPOBTS. 44 Tex. 485-508
e, 34 Tex. Cr. 473, 31 S. W. 380, not
■rince T. State after jury retired;
lot reTsrsing for inBtTQCtlon on th«ft
mmitted at nigbt.
a MoTtgAge 1>7 pablication against
Bchment.
I, 40 Tex. S36, citing, but not appli-
ed no statement of facte; Oswald
ng personal serrice not necesaary in
[iawrence, 1 Tex. A p. Civ. 33S, where
Id jurisdiction acquired; Weema t.
lining jurisdiction on allegation tbat
te; Murpby ». Wallace, 3 Tex. Ap,
where defendant pleaded to merits
lee T. State Bank, 5 Tez. Civ. 480,
ion acquired by attachment; Bolter
, 3S S. W. 1075, wbere lien on land,
lly, 170 U. S. 407, 20 Sup. Ct. Bop.
process served in Virginia required
>wan T. Shapard, 2 Tex. Ap. Civ. £59,
> give jurisdiction in rem.
of error.
ez, 58 Tex. 313, holding former judg>
BO Tex 6S4, 18 S. W. IDT, austaining
' second action by state to recover
. v. State, 68 Tex. 53G, 4 S. W. 809,
iff to allege possession in suit to
ty. V. Lacy, 7 Tex. Civ. 84, 28 8. W.
of error after bearing appeal; Ue-
531, 40 S. W. 319, bolding limitation
rely equitable claim set up.
0, TTIiEB T. THOMPSON.
ITS of insolvent estate will be paid
g to rank.
'. DUFBBE.
1 to agricultural macbinery that may
the freehold.
: etc. Mfg. Co., 13 Tex. Civ. 682, 30
machinery could be moved by mort-
. Ownby, 58 Tex. 04S, 42 Am. Bep.
er t res pass brought, held defendant
V. Willis, 23 Tex. Civ. 550, 58 S. W.
1 Statutes, bolding burden on party
ralue.
44 Tex. 502-522 NOTES ON TEXAS EEPOETS.
44 Toe 602-606, SHIIPABD V. OUUMINaS.
In Treipaw to Try Title ftllegatton of cloud n]
deitroy cbaracter of the act.
Approved in New York etc. Land Co. t. Hylant
S8 8. W. 211, reaffirming rule; Rains t. Wbeelei
B. W. 324, snatainicg petition although poasessio
alleged; JohoBOn t. Foater (Tei. Civ.), 34 3. W. (
ings alleging title to real estate in controverBi^, a\
tiespau to try title and subject to same rules of
T. Eatchina, 2 Posey U. C. 408, holding petition
trespasB; Uoore v. SnowbaU, 98 Tei. 23, lOT Am
a W. 7, 66 L. R. A. 745, arguBndo,
Wliere Legal Tltl« Acquired by LoBt Deede, h
not run against deeds in action to recover the land
Approved in Soutb Tole etc. Ditcb Co. v. King
Pae. 1034, in action to determine title to certain
claimed nnder deed, but which has always been
defendant, defense of mistalce not barred under (
eedure, section 33S, subdivision 4, but governed b
of section 318; Murphy v, Crowley, 140 Cal. 147, '
by plaintiff alleging deed obtsiuBd by A from B <
that other defendant was purchaser from A with n
to set aside deed and that he be let into posseBsi<
five year period provided by Code of Civil Proc»
Distinguished in Phelan v, Wiley, 2 Ter. Ap. Civ
eeeding to supply destroyed judgment after four y(
44 Tex. 511-613, UOBOAN ▼. STATE.
An Entiy In Judgment that jurors were "sworn
ia luffieieat recital of oath taken.
Distinguished in ChambliBs v. State, 2 Tex. Ap.
improper oath set out in judgment.
44 Tei. 614-617, rATBTTE COUNTY t. FAIBES.
A Subsequent Statnta embracing substance of
mutt be regaided as a revision and substitution f<
Approved in Opinion of the Justices, 66 N. H.
holding section 10, chapter 128, Laws of 1844, a
purchase railroad.
44 Tax. 617-622, OWEN v. NAVASOTA.
An UnantliOTlzed Sale b; Sheriff may be set ai
court of execution, or by petition in equity offeri
chase money.
Approved in Wilson v. Aultman (Tei. Civ.)
reaffirming rule; Cravens v. Wilson, 48 Tex. 340, ho!
execution could interveue to set aside irregular sal<
wood, 91 Tex. 690, 45 3. W. BOO, setting aside sal
and fifty-one dollars of land worth two thousand
larsi State Nat. Bank v. Hathaway (Tex. Civ,), I
taining jurisdiction of county court to set aside
Blum, 3 Tex. Civ, 111, 22 S. W. 271, setting asid<
for inadequate price. See notes, 65 Am. Dec. 95;
84 Am. Dec, 619; 86 Am. Dec. 669.
Distinguished in Rippetoe v. Dwyer, 49 Tex. 506,
evidence of fraud in sheriff's sale in trespass; T
)N TEXAS BEP0BT8. M Tex. 523-527
< by aheriff where receipt* of satiifketlon
nith T. FerhiDB, SI Tex. 15T, 26 An. St.
9 versing collateral attack for fraud aua-
lalo, who looks to record aod finda valid
iziag eieeation, and buya in good faith,
receives deed, takes title valid until sale
sen, 23 Tex. Civ. 484, 56 8. W. 571, fact
thODt advertising it for prescribed time
!B not render sale void; Houae v. Bobert-
642, holding title of execution purchaaer
iritj in sheriCC's return on writ; Brooks
S. W. S12, holding suit to recover laud
round that judgment under which ezecu-
want of service is cAllateral attack on
STATE.
In OrlmlnsI OaM, district attorney may
icial judge.
ate, 9 Tex. Ap. 4S5, BQEtaining appoint-
apsoo V. State, 9 Tex. Ap. 664, sustaining
I ere counsel had not agreed,
to try theft, because property hia.
Preston, 54 Tex. 404, holding mere inter-
ior r. State, 34 Tex. Cr. 639, 93 Am. St,
mitting confession of theft of bog made
it; Ctaek v. Tajlor Co., 3 Tex. Ap. Civ.
[ualified where actions had been in jndi-
te, 36 Tex. Cr. 491, 38 8. W. 179, holding
I eft of hog from bis brother,
T. STATE.
Ml for error in charge of punishment.
te, 1 Tex. Ap. 516, reversing where eonrt
isbment; Garnet v. State, 1 Tex. Ap. 609,
under rule in poisoning case; Saasbury
reaffirming rule; Jones v. State, 7 Tex.
enalty charged on theft of ho£; Veal v.
I penalty changed by statute before trial;
p. 626, where penalty exceeded maximum
hen V. State, 11 Tex. Ap. 33S, reversing
I of fornication; Wilson ». State, 14 Tex.
penalty charged for murder in second
Tex. Ap. 538, followed in robbery ease;
sx. Ap. 566, where court charged under
3tate, SI Tex. Cr. 523. 21 8. W. 260, ans-
i assault which omitted "by both fins and
14 Tex. 529-048 NOTES ON TEXAS BEPOETS.
U Tex. 6&S-632, mTGHES T. DEI.ANET.
Psrol Evidence Admleslble to correct mistakes ii
Approved in Miller t. Tfnrria, 69 Tei. 555, 7 8
deed conditional Bale; Hoirard v. Zimpelmaa (Tex
61, to ingraft parol trust on deed, it must be prov
and certainty. See note, 73 Am. Dee. 235.
44 Tax. 632-6SG, OOBOCBB v. CAOE.
SurrlTlng Hnsliuid or Wife maj sell eommuDil
filing inventory, and sale will not be vitiated to
Approved in Long t. Walker, 47 Tei. 177, eonfli
'inventory not aworn to and aignad; Qreen v. Gris
confirming sale thoagh wife did not awear to invei
AdamB, 55 Tex. S33, affirming judgment and sale
widow who bad inventoried estate; Pratt v. Qodi
■DBtaining sale, by aurviving husband; Withrow i
Civ. 444, as S. W. 439, hDldtcg failure to li«t ^n
Bicfaardaon v. Overleese, 17 Tei. Civ, 381, 44 S.
where husband qualified, not necessary thereafter t
bond; Townaend v. Willis, 7S Fed. S54, holding (
husband survivor could not be collaterally attache'
Distinguished in Busby v. Davis, 57 Tex. 325, he
cation for appointment of appraisers not quali
Yungst, 65 Tei. 636, holding survivor could sell
stead to pay debts without qualifying.
Act Of 1656 Allowad tlie SnrvlTor of the com
manage, sell, or dispose of it, relieved of the tramn
Bueh estates prior to that time.
Approved in Withrow v. Adams, 4 Tex. Civ. 44
holding surviving wife had lame powers as survivi
44 Tex. 539-643, DUNSOK r. FATNE.
When &nlt Brought to BoTise Probata Proceadli
proceedings should be filed, or matters must bo
forth.
Approved in Ward v. Ward, 1 Posey TT. C. 125
of minors to review guardianship proceedings defe
In AjKlgnment of Error in charge of court, prec
pointed out.
Approved in Handel v. Kramer, 1 Tex. Ap. Civ
rule; Carter v. Boland, S3 Tex. 544, holding ass
eral; St. Lonis etc. Co. v. Dobie (Tex. Civ.), 75 f
nient of court that "trial court erred in overr
motion for new trial" is too general; Texas etc. By,
233, refusing to cousider assignment where error
44 Tex. 644-648, CABTEB v. EAME8,
An Indorssment In Blank may be filled by the ho]
facie evidence of ownership.
Approved in Parker v, American etc. Bank (Te)
1073, holding title to note passes to indorsee
Krueger v. Klinger, 10 Tex. Civ. 580, 30 S. W,
indorsed in blank, held ownership in holder.
Judgment will not be B«versed for incorrect cbt
injure defendant.
lOTEa ON TEXAS KEPOBtS. U Tex. 549-573
reaton eto. B. B. t. DeUbnntj, S3 Tex. 212, apply-
I eaiej Iicper t. Bobinsoii, S4 T«x S16, applying
lotei giiven for land; Honataii Co. t. Dwyer, 59
on bond of tax collector; H. E. etc. B7. t. Hardy,
ion for damagSB for injury to homeitead; MeCon-
, 1 Tex. Ap. Cir. 964, where no injury resulted
iter ▼. Kay, 1 Tex. Ap. Civ. 394, refusing to
}rd Bnatained jodgment; Dawion v. Sparks, 1
Riming where charge* on fraud held not mistead-
Ua]lo7 T. Callahan, 2 Posey U. C. 412, reveraing
P>-
tTTOn must distinctly specify errors.
ndel T. Kramer, 1 Tei. Ap. Civ. 473, following
idor, 1 Posey V. C. 285, refusing to reverse where
t erred in finding on limitations.
Jontdnnanca should set oat facts constituting due
ninatiou of court.
iouri etc. Ey. t. Hogan (Tex. Ciy.), 30 8. W. 688,
ilf etc. Ey. T. Bowland (Tei. Civ.), 35 8. W. 32,
for eontinuaoce properly refused where attempt
not shown, thongh excuse given.
,TEB8 ¥. WAUlh
waa Fresemd by issuance of execution within
LOugh transcript of jadgirent not recorded,
pson V. Wystt, i& Tex. 632, holding act of Novem-
Uaban, 1 Tex. Ap. Civ. 392, holding judgment
icution not issued witbin year.
Uowanca and approval of judgment against estate.
I T. Hill, IS Tex. 641, holding bringiag suit on
m against estate not waiver.
i. A. 66.
Todd T. Willis, 66 Tex. 711, 1 8. W. 807, where
9 of former administrator could bs Bet aside.
ETEBS ▼. WILLIB.
t Ask Afflnnance on accepting citation in error,
ir calling docket.
son V. Adams, 50 Tex. 14, on rehearing, granting
^fusing in original hearing.
Wilson V. Adams, 60 Tex. 9, refusing afBrmance,
ailed to accept service and bring up ease, but
iaring; Cotton v. Patterson (Tex. Civ.), 58 8. W.
t after delay of thirteen months to issue citation.
ITETTS ▼. TENSICK.
lug In Trespass to try title is entitled to rents
44 Tex. 5T3-5B5 NOTES ON TEXAS KEPOET
Approved in Evitta t. Both, 61 Tex. 86, tev
ioBtruction on above point; Pbillip* v. Stewi
BTgnendo.
Limited in Soutbero Cotton Oil Co. t. Henslia
761, where defendant holding in good faith, hel
moie than one year; Oillej v. Williami (Tex. (
holding impTovementa not being made in goc
treBpaas to try title may recover rent of land an
44 Tex. 673-576, TAN80N t. JACOBS.
BlU of Kervlew In Probate Proceedings need <
ceedingH to be revised or the sabatanee of them.
Approved in Ramirez v. McClane, 50 Tex. 6
bitl to vacate order of administration for fraud
Tei, 545, holding review lay in county court tc
■ettlement of guardian; Jones v. Parker, 67 Ti
holding bill to review guardian's account shoul
errors; Ward v. Ward, 1 Poaey V. C. 125, hoi
aside certain proceedings defective; Miller v.
385, 53 S. W. 364, austaining bill of review b<
gnardianahip proceedings.
44 Tex. 578^79, FITNBB ▼. STATE.
Plea of "Autrefois Acquit" cannot be set np on
Approved in Hovey v. Sheffner, 16 Wyo. 271
1037, 83 Pac. 312, 15 L. H. A. (n. s.) 227, BriU
154, and State v. Klock, 45 La. Ann. 317, 12 So
rule; Ex parte Sogers, 10 Tez. Ap. 666, holij
jeopardy improper; Ex parte Barnett, 51 Ark. 21'
ing court could not determine sufficiency of in
Bennett, 114 Cal. 59, 45 Pac. 1014, holding "one
not be raised on motion for new trial; In re Bi
Atl. 666, 11 L. B. A. 694, refusing to review ir;
dure; Ex parte Tice, 32 Or. 184, 49 Pac. 1039, w
on Sunday, held commitment void. See note, 87 J
44 Tex. 579-SB2, OOHI.ET ▼. OOLUMBUS TAP B
Wbeie Demoirer to Petltimi Snstalned, held
evidence to supply defects of petition.
Approved in I. & O. etc. By. v. Philips, 63 Tei
dence to ahow damages for delay of "gooda cbe<
44 Tez. 582-685, KEEK T. STATE.
An Agreed Statement of Facta not signed bj
will not be considered.
Approved in Johnaon v. Blount, 48 Tex. 41,
agreed atatement; Brooks v. State, 2 Tex. Ap. 3
under rule; Carter v. State, 5 Tex. Ap. 461, Kai
Ap. 203, and Mitchell v. State, 2 Tei. Ap. 405,
Carlson v. State, 5 Tex. Ap. S02, affirming eo
Longlcy v. State, 3 Tex, Ap. 613, refusing to r
ception taken to charge.
Court will not Berlse AcUon of Iiower Court
trial in absence of statement of facts.
Approved in Texas etc. By. v. McAllister, 59 '
review chergee where no bill of exceptions takei
i ON TEXAS BEP0ET3. « Toi. 587-816
oal with inteot to appri>priat« it, "tberaby
B value," is BuCBcient.
ate, 6 Tex. Ap. 129, auataiDins charge u to
)" of jearliug.
XEZ ▼. STATE.
I in terms "violentlj did favlsh sad earsallj'
r. State, 4 Tex. Ap. 347, snBtBining iiidict-
wound, and ill-treat," ate.; Walling v. State,
iadictment read "did violently and feloni-
arke t. State, 8 Tei. Ap. 71, where read
" etc.; Cornelius v. State, 13 Tex, Ap. 353,
id by force and threats," etc.
▼. STATE.
) will not be dismbBed antil reasonable time
State, 91 Oa, 674, 17 S. E. 958, diBtuiBBing
6 U. 8. 142, 17 Sup. Ct. Bep. S27, 41 L. 950,
siztj dajH.
>N ETC. S. B. T. WINTEIt.
e of tfao House," and includes the adjoining
ovements and implemeots, and whatever is
ly-
MattheWB, 36 Tex. Civ. 435, 81 S. W. 1205,
estead was rural or aiban; Ameriean Land
iv. 260, 261, 56 S. W. 397, husband alone can-
gnation of homestead from larger tract,
!ultivatod land and aubjeet to mortgage Ibc
he occDpieB aa auch; Woolfolk v. Rickella,
tDtion did not attempt to describe or define
an, 83 Tex. 597, 19 8. W. 141, holding lathe
It subject to tax aale; Cerverka v. Dychea
I, homestead that land on which house and
rith contiguouB tract aggregating two hun-
.1, 83 Ala. ISO, 3 So. 240, holding separate
neatead where used for gatheriog wood, etc.;
Ala. 651, 653, 7 So. 334, 335, holding an
t could not conetltute homestead; Gentry v.
il 3. W. 570, where coin-mill and machinery
'0 Am. Dec. 295.
I T. James, «fl Tex. 499, 1 8. W. 315, holding
homestead realty, not exempt.
Show AcqniTemeiit or abandonment of home-
1 tracts conatitutes homestead.
Land etc. Co. v. Pace, 23 Tex. Civ. 261.
ilone caoDot, under form of designation of
act, transfer exemption to uncultivated land
the actual homestead which he occupies as
:s, 43 Tex. 37, where permanent abode taken
on that homestead abandoned; Brooks v.
olding mere intention to acquire was not
ortgage etc. Co. v. Burford, 67 Fed. 86T,
certain land not homestead . was not es-
44 Tex. 616-1328 NOTES ON TEXAS EBPOEXa
toppel; Walking v. Little, 80 Fed. 332, binding wife t
in mortgage' that certain land not homestead; Roberts ^
Tex. Civ, 483, 83 S, W. 335, holding fifty acre tract
distant not part of bomestead; Lenora State Bank t.
Ap. 702, 44 Pac. BOl, holding homestead could not t
separated sections; Yanee v. Doebbler, 2 Posej V. C. 4
homestead character although husband away for some 1
Ingram, 2 Posey U. C. 63C, holding facts did not consi
tion of homestead; Cameron v. Oebbard, 85 Tex. 614, 34
834, 835, 22 S. W. 1034, where acta held sufficient
homestead. See note, 70 Am. Doc. 348,
Distinguished in Western Mortgage etc. Co. t. Bni
80, holding declaration in mortgage that land not hi
Btituted estoppel.
ZJon on Land Existing before it was designated ae a 1
not be defeated by changing homestead to include snch
Approved in Williams v. Meyer (Tex. Civ.), 64 I
affirming rule; Baird v. Trice, 51 Tex. 559, holding pi
not be defeated by setting up homestead; Oage v. Ne
374, 375, enforcing lien against subsequently designati
Simonton v. Mayblum, 59 Tex. 10, holding statute ra
adverse elaimant; Haswell v. Forbes, 8 Tex. Civ. 85,
where separated lot held not part of homestead; Ship]
19 Tei. Civ. 800, 47 S. W. 674, upholding selection
on irregular tract. See note, 73 Am. Dee. 818.
a Tax. 616-620, MeCOT v. STATE.
When Cotirt Oharged That Becent unexplained possei
property raised presumption of guilt, held error.
Approved in Hannah v. State, 1 Tex. Ap. 583, hold
alone would not support conviction; Alderson v. Stat
12, Bustaiuing charge where no exception taken; Wat
2 Tex. Ap. 74, reversing for similar charge; Johnson
Tex. Ap. 391, where state had not rebutted explanati
Irvine v. State, 13 Tex. Ap. 501, reversing where cot
charge on rebuttal of explained possession; Bryant
Tex. Ap. 149, reversing where charged that "posaeK
dence against defendant"; Roberts v. State, 17 Tex.
log burden on state to show explanation false; Tori
Tex. Ap. 442, reversing where state failed to rebut
Boyd V. State, 24 Tex. Ap. 532, 5 Am. St. Eep. BIO,
reversing for omitting to instruct on "recent possessio
State, 24 Fla. 151, 3 So. 882, reversing for erroneou
note, 70 Am. Dee. 448.
44 Tex. 620-622, BLOOE v. STATE.
Pioof of Embezzling United States Onrrency or natio
will not support indictment of embezzlement of money.
Approved in Henderson v. State, 1 Tex. Ap. 438, (
applying rule where indictment charged embezzlement
Griffin v. State, 4 Tex. Ap. 414, holding indictment def
alleging ownership and trust relation.
Distinguished in Sansbury v. State, 4 Tex. Ap. 102,
dlctment of theft of money described as treasury notes.
RTS. 44 Tex. 623-033
al tender.
Ap, 289, 8 S. W. 469,
ooey "current money";
736, suBtaining indict-
"; LowU -r. State, 28
includes legal tender,
ei. Ap. 368, 369, 13 S.
rrency money included
State, 35 Tei. Cr. 522,
eft of twelve hundred
f. Smith, 49 Ark. 39, 3
rchaeci at tax ul« in
SI. 506, 18 8. W. 135.
ms of auditor's report;
S32, holding case being
eyond verdict for facta
90 Tei. S45, 39 S. W.
Bnerahip of land; Mc-
to look beyond special
ABN.
ods that defendant had
nly partially loat, muKt
r. Ap. Civ. 298, holding
cover for whole; O. C.
g tender tniut be made
S Tex. Civ. 516, 22 S.
f to iboiT damage not
a iltting Bi ^atice of
il bond for theft.
Cr. 375, 81 8. W. 973,
I offense; Territory t.
i.. (n. ■.) 148, bail bond
m T. State, 2 Tex. Ap.
a where ofFense against
:. Cr. 657, 653, 44 S. W,
) legislature could not
Bx parte Coombs, 38
itntion of 1S91 cofpora-
larte Knox {Tex. Civ.),
r to make city recorder
38 Tex. Cr. 670, 673, 47 '
risdiction of offense of
44 Tex. 633-644 NOTES ON TEXAS BEPOETl
keeping bawdj-houae; United. State* t. Hudsoo,
bail improperly given by justice of supreme cour
DiEtingulshed in Oibbona v. Braden, 1 Tex. A
ing jurisdiction of mayor prosecuting under 0[
Hart, 41 Tei. Cr. 591, SB S. W. 345, holding lej
corporation courts for city.
Overruled in Ei parte Wilbarger, 41 Tex. Cr,
holding legislature authorized to establiah munic
Bcribe jurisdiction and organization thereof.
44 TflX, 6S3-637, WOODS T. HALF.
PEirtieB to a siil* wilt be bound by their intentii
Approved in Hopkins v. Partridge, 71 Tei,
where entire cotton sold and to be carried a?
not attachable; Silver Bow etc. Milling Co. v. ]
12 Pac. 6S4, holding title to cattle did not pass t
paid; Tennant v. Skinner, 1 Tex. Ap. Civ. 34
in peraoD who stood for risk of lose; Cobb v,
Civ, 141, where purchase price not paid held
T. Janks, 4 Tex. Ap, Civ. 246, 15 S. W. 40, when
of vendor, held fraudulent as to third party; Til
Ap.), 15 8. W. 40, holding sale of chattels coi
intend title shall pass.
A Custom mar ^ Sbovn to supply an omiss
Distinguished in Sehumaebef v. Trent, 18 Te:
481, holding bank in which note deposited for
default of another bank.
ETUy Sale Transfers property.
Approved in Sinclair v. State, 45 Tex. Cr. 494
etiuing constitutional provision antborizing tegi:
providing for local option elections aa to sale of
44 T«X. 638-642, BABHABD T. GOOD.
Wbera One OaU of % Patent Erroneous, beld
corrected it.
Approved in Morrill v, Bartlett, 58 Tex. 651
in patent by survey; Broxsou v. MeDougal, 63
scription of lost deed not correct, appropriatiu
closed; Coffey v. Hendricks, 68 Tex. 678, 2 6
description from deed itself.
Mistellaneous. — Gx parte Anderson, 46 Tex. C:
44 Tex. 642-644, MAKN T. STATE.
Wliere Parties tTnla.wfnll7 Cohabit, held rule
and wife from testifying again»t each other ina;
Approved in Sims v. State, 30 Tex. Ap. B07, .
ting testimony of mistress in murder case.
Leading QnesUous are Within Discretion of t
Approved in Taylor v. State, 32 Tex. Ap. 54
milling direct questions where witness refused
Where Cfhild Wltnaes in Assoiilt made affidavi
false, new trial granted.
Approved in Ake v. State, 6 Tex. Ap. 403,
of child in rape case; Fletcher v. People, 117 .
ON TEXAS BEPOBTS. 44 Tex. 645-653
iritneu oSerad different teBtimonj; State
P&c. 1047, granting new trial where wit-
<d make affidavit that they were miatakea
hotograph of another aa culprit.
T. Tallmadge, 114 CaJ. 430, 46 Pac. 283,
mt of perjurj of witneM; Ogden v. State,
J, tefuBiog new trial where new evidenee
T. STATE.
Oranted where application does not show
red ia material.
V. State, 2 Tex. Ap. 324, following rule
del V. State, 4 Tex. Ap. 422, following
terial; Willison v. State, 7 Ter. Ap. 400,
L material. Bee note, 8 L. B. A. 534.
Ln eicaped convict in attempt to rearrest
Kinkead, 55 Ark. 504, 505, 20 Am. St.
, 15 L. B. A. 558, where person eommit-
ed while attempting escape, held murder;
. C. 474, 45 S. E. TS9, policeman cannot,
r pursue, beyond city limits, one who sue-
rithin city; Brown t. Weaver, 76 Miss.
3 So. 390, 42 L. B. A. 423, holding sheriff
ig escaping misdemeanant. See notes, 61
103.
aHeaOs to Take Ufe of asother than de-
though one killed was one whose killing
0, 665.
Attemptiiig to Teeaptnre escaped convict
eceg»ary to protect himself.
in Fletcher v. People, 117 DJ. 190, T N. E.
Qila Biver I. Co., 3 Ariz. 178, 24 Pac. 257,
T. Fleming, 57 Tex. 399, following rule
; Searcy v. Grant, 90 Tex. 101, 37 8. W.
civil appeals for considering errors not
Icraft, 1 Tex. Ap. Civ. 25, following rule;
.), 28 8. W. 920, considering fundamental
^oUectloii of unlawful and excessive taxes
B petition shows petitioner offered to pay
bnaon, 53 Tex. 268, refusing injunction to
ae; Blanc v. Meyer, 59 Tex, 92, refusing
T bad not paid tax; Northern etc. E. R.
5, 24 Pac. 706, holding petition bad where
a Tax. 652-681 NOTES ON TEXAS BEPOETS.
44 Tex. 662-657, 0A3CEE0N t. STATE.
DocUratioiiB of OwneiBlilp ood PosmmUu sre insdm
defeodant id theft unleHS made at time of posBetsion.
Approved in Pott v. State, 10 Tex. Ap. 601, ezclndii
tlone of co-conspirator not "rea gestae"; Childress t. Sta
Ap. 699, excluding declarations of defendant after parting
erty; Tajlor v. State, 15 Tex. Ap. 360, exclnding expit
poKsesaion of defendant.
ld«re Absence from State of Ovoei of cattle is not al
of cattle left on their accustomed range.
Approved in Littleton v. State, 20 Tex. Ap. 171, -where
one, but ownership and control alleged in another, reversii
44 Tex. 667-601, WIUSON V. ZBUXLE&,
Attachment Froceedlnga are unnecessary against aonri
fendant sued hj pabUcation.
Approved in Johnsoo t. Herbert, 49 Tex. 304, folio
Hewitt V. Thomas, 46 Tex. 236, cited approviDgljr, bt
pljing rule; Treadway t. Eaatbum, 57 Tex. 213, holding
jurisdiction where record showed defendant "duly cited
V. Brown, 61 Tei. -37, upholding judgment rendered agaii
on citation; Fnlshear v. Lawrence, 1 Tex. Ap. Civ. 33S,
juriadjction by poblication; Traylor v. Lide (Tex. Sap.)
02, holding jadgment on service by publication is good oi
attack; TbomsoD v. Shackelford, « Tex. Civ. 128, 24 i
where personal notice given and property attached.
Distinguished in Stewatt v. Anderson, 70 Tex, 595, 8
holding jurisdiction not acquired without attaching pre
publishing notice; Parrott v. Alabama etc. Ins. Co., 4 T
5 Fed. 303, where service on nonresideut corporation i
and "citation," held bad; Bowan v. Shapard, 2 Tex. Ap
holding attachment neceeaary in action "in rem."
JnrisdlcUoll Is Acquired where party appears by attorney
Approved in Weems v. Miles, 1 Tex. Ap. Civ. 689, bo
anee of garnishment gave jnrisdiction ; Murphy v. Walla
Ap. Civ. 511, sustaining Jurisdiction where defendant pi
asked eontinnanee.
NOTES
ON THE
^AS REPORTS.
CASES IN 45 TEXAS.
BTUAH T. STATE.
rging Tti«n of "bull yearliog" ia suAeient.
tuval V. State, 8 Tex. 371, indietment for stealing
ia aafficient.
ASTOH T. STATE.
ira Practically Allowed to eonaider what tbey knew
itely it it error.
leKisBiek v. State, 26 Tei, Ap. 677, » S, W. 209,
I, 36 Tei. Cr. 319, 36 S. W. 464, and Auachick t.
. 538, all granting new trial for verdict iuflueuced
)uror aa to one of witnessei. See note, 31 L. B. A.
3e La Vega t. League, 64 Tex. 212, disallowing
mita aa to uecesaarj' party; Cbanbera v. Brown
W. 520, holding husband of deceased grantee nnder
mxiy to partition anit; Cook v. Pollard, 70 Tex.
i, where attachment is attacked, all the other at-
: should be made parties; Ellis v. Stewart (Tex.
EST, holding surviving wife of deceased heir neeea-
irtition suit; Buie v. Cunningham (Tex. Civ.), 29
ing owners of county bonds neceasary parties to_
ids declared void; Sun Ins. Office v. Beneke (Tex'
100, holding makers of note and insnrera proper
iQ note aecured by mortgage on inaured property;
(Tex. Civ.), 56 S. W. 87, holding error to order
ill parties in interest not parties to suit.
ztltlon must aet out hia own and defendaut'a title,
anat be entitled to the entire estate,
ibna V. Nortbcutt, 49 Tex. 456, all partiea interested
court; Glasscock v. Hughes, 55 Tex. 469, petition
rtent of each defendant's interest; Franks v. Han-
C, 567, deeree reversed for failure to join parties.
(615)
45 Tex. 9-20 NOTES ON TEXA8 RBP0RT3.
When NeccHaiT Putlea In Faitttlon are not 1
Hhould be brought in.
Approved in Black v. Black, 95 Tez. 629, 99 S.
rnle; Stark v. Carroll, 66 Tez. 2iS, 1 B. W. 189, i:
taken, jndgment cannot be collaterally attacked;
66 Tex. 546, 1 S. W. ST5, husband of deceased
in partition; KremeT v. Haynie, 67 Tei. 452, 3 8
ai to portion of defendants reveraeB as to all; E
T, Culberson, 68 Tei, 667, 5 8, W. 823, applyjnj
death of party from negligence; Teris v. Armet
9 8. W. 136, rule not applicable in trespasa to try
tion is not asked; McKinney v. Moore, 73 Tez. 4
suit abates on dismissal m to one admittedly i
mon; Holloway t. Mcllheuny, 77 Tez. 659, 14 S.
cured by failure to object in lower court; Maver
Tex. 562, 32 8. W. 513, reversing judgment where
for new trial at same term; King v. Commtssione
Civ. lis, 30 8. W. 258, pnrebaser of bonds is nc
enjoin issue; State v. Metschan, 32 Or. 381, 46 Pat
692, want of parties in suit to enjoin payment of
railed below.
45 Tex. 9, AU^N ▼. FOSTER.
Wbea Tber« la ConfeBaiou of Bum, appellate eat
questions of pleading which may be amended up
manded.
Approved in Missonri etc. By. v. Hodges (Tez
025, holding appellate court will not revise qnesti
on new trial where there is confession of erro
46 Tax. 10, STATE v. FEBKINa
In Indictment tor Receiving Stolio Qooda, nam
whom received must be stated.
Approved in McKay v. 8tate, 49 Tex. Cr. 120, 90
indictment for receiving stolen cattle alleged th
from person noknowa to grand jury, but record el
attorney knew name of such party and grand jury i
known it, conviction not sustained; Brothers t. S
46E, 3 S. W. 739, holding indictment sufficient; i
Colo. Ap. 504, 34 Pac. 264, where name is known,
trary is fatal variance.
Disapproved in Andersan r. State, 3S Fla. 5, 21
name unnecessary.
46 Tex. 10-20, BEBMOND v. HcLBAN.
No Action IilM foi False BepreMUtationa withon
Reaffirmed in Moore v. Cross, 87 Tez. 661, 29 6
covery where no pecuniary loss is shown.
To Avoid Btumlng of Limitations in action foi
which prevented discovery mnet be set out.
Approved in Western etc. Co. v. Mitchell, 91 Te:
Rep. 910, 44 8. W. 275, 40 L. B. A. 209, Vodrie v. I
S7 8. W. 681, East Texas Land etc. Co. v. Graham,
60 S. W. 477, Luter v. Hntchinson, 30 Tex, Civ. 5]
and Beisaner v. Texas Eipress Co., 1 Tex. Ap. Civ
ing rule; Boren v. Boren, 38 Tex. Civ. 144, 8S 8. V
UOTES ON TEXAS EEPOBTS. 45 Tei.20-*7
and in pTOcarement after lapse of twelre years,
med he was led to believe he bad no interest in
] will, which was of record; Pitman t. Holoies,
rs S. W. 963, where plaintiff not knowinK extent
and induced hj mother to believe pTopertj bought
indB instead of with separate funds of deceased
against snit to set aside partition did not run
nterest; Bansome t. Rearden, 50 Tez. 128, applied
Mman v. Baker, 50 Tei. 637, applied to failure to
deed; Connolly ▼. Hammond, SI Tex. G47, party
iches from time fraud ought to be discovered;
. 59 Tex. 160, holding facts could have been dis-
onable diligence; Brown v. Brown, Gl Tex. 49.
fficient; Haskins v. Wallet, 63 Tex. 220, delay of
ased; Calhonn t. Burton, 64 Tex. 516, creditors
g aside conveyance by intestate; Cooper v. Lee,
W. 487, applying rule to recover land purchased
1 v. SchwartB (Tei. Civ.), 32 8. W. 821, holding
of fraudulent mixing of cotton must show due
!r fraud to suspend statute of limitatioDi.
ilDALL ▼. EILET.
'atttlon Against Administrator, correcting name of
liompBon _ T. Swearengin, 48 Tex. S60, allowing
■ ont value is coin or currency; Tolbert v. Mc-
12 S. W. 753, formal amendments relate to time
Texas etc. By. v. Johnson (Tex. Civ.), 34 S. W.
dment of petition, bad on demnrrer, dates from
See note, 76 Am. Dee. 127.
of Preceding Indebtedness by one partner after
ridence against others.
own V. Chancellor, SI Tex. 446, disallowing rS'
«ill V. Hill (Tex. Civ.), 37 B. W. 179, holding, after
tership, neither partner can bind other by execut-
me, thoagh for partnership debt.
JS T. SmOLBTABT.
Imr Note by another party does not destroy ven-
nson V. Betterton (Tex. Civ.), 25 S. W. 1051, re- ■
is Ex. Bank t. Beard, 49 Tex. 363, fact of one
matnring first does not entitle it to precedence
t the proceeds of the land; Robertion v. Quorin,
pplied where new note is given to different party;
5 Tex. 568, 571, applied to substitution of parties;
7 Tex. 665, lender of money to pay lien creditor
eto; Neese v. BLley, 77 Tex. 351, 14 S. W. 66,
jTsee of note; Clements v. Neal, 1 Posey U. C.
by giving note to third party; Dean v. Hudson,
., holding lien not discharged; Stell v. Lewis. 2
division of note into several does not discharge
Am. Dec. 575.
ti«s on Not« raises presumption of waiver of vea-
may be rebutted.
45 Tei. 47-51 NOTEa ON TEXAS REPORTS.
Approved in Flanagan v. Cusbman, 48 Tez. 244,
against bomeatead rigbta; WiJliB v. Gaj, 4S Tex. 469,
atractioii where note is taken witb sureties; Irvin
Tex. 54, 55, bordcn of showing waiver is on vendee; Cr
SG Tez. 467, record showing unpaid purchase monej
vendor's lien; Slaughter v. Owens, 60 Tex. 670, appliei
by new party; Cre.vip v. Manor, 63 Tex. 486, holding
waived; Cherry v. Nash (Tex, Civ.), 21 S. W. 41]
press reservation of lien overcomes preeumption of i
from taking independent securities; Meyer v. Smith
41, 21 S. W. B96, not discharged by agreement to pay in
PuTcbaur of Land, with notice of prior existing lit
eoDStitutiag such lien, takes title subject thereto.
Approved in Torrey v, Martin (Tex. Sup.), 4 8. W
lien on leased lands for monej'S expended not defeat
ment of lease to party with noties.
Jodgment Debtor does not become bona fids purchasi
ing from judgment creditor.
Approved in Uasteraon v. Burnett, 27 Tex. Civ. 375,
where judgment debtor acquired land by deed reciting
as paid, but at same time gave vendor by mortgage a li
price, judgment creditor's lien attached only to pure
interest; Bailey v. Tindall, 59 Tex. 542, grantee in
who becomes purchaser takes subject to vendor's lien.
Pleadlogg mnst b« so Shaped to give opponents real
of what is designed by them.
Approved in Alamo etc. Co. v, Hercules etc. Worki
639, 22 S. W. 1098, holding complaint too indefinite; N
Cord, 36 Tex. Civ. 509, 75 S. W. 830, arguendo.
WliMTe Notes an Pleaded as Fart of Dftfense, plaii
treat them in way of cross-bill for affirmative relief.
Distinguished in Short v. Hepburn, 89 Tex. 625, 3!
plaintiSf cannot dismiss where defendant flies cross-bill.
Release of Vendor's Lien Is Question of Fact depenc
tioD of parties.
Approved in Maas v. Tacquard's Exrs., S3 Tex. Civ. 43.
where vendor's lien superior to other liens, and vei
release of lien in which payment of notes acknonledgi
only intended to release vendee, and notes had beei
vendee's purchaser with lien to secure tbem, priority of
4S Tez. 47-61, PEESTON T. BBEEDIiOVE.
Judgment Foreclosing Uen is erroneous where there
thereon in verdict.
Approved in Adams v. Cook, 55 Tex. 166, Farmer v.
Civ.), 28 S. W. 384, and Bedford v. Rayner Cattle Co.,
623, 35 S. W. 933, all reaffirming rule; Texas Land etc
kins, 12 Tex. Civ. 607, 34 S. W. 998, verdict should ■
issues of fact; Stone v. Stone (Tex. Civ.), 40 S. W.
erroneous judgment in divorce where property rights
special issues and verdict finds rental value but not ter
Hillebrand v. McMahon, 59 Tex. 453, arguendo.
Possessor Undei Recorded Ceaveyaiices is not afte<
closure against remote vendor alone.
Approved in Delespine v. Campbell, 45 Tex. 632, hoi
note secured by same mortgage are nt'ciisiary part
NOTES ON TEXAS EEP0RT3. 45 Tex. 51-73
5, all parties with IIcdb atiould be joined in Buit
to foreeloBe; Carter v. Attoway, 46 Tex. 110, sub-
poBMssion is neecsBary; Turner t. Phelps, 46 Tex.
a St satiefy lute rest of lub sequent eDcumbrancer;
s, 48 Tei. 3S2, decree docs not conclude purchaser
known prior to foieclosine ; Wood v. Loughmiller,
ndant has no right to have his own vendees made
Eogera, 49 Tei 418, all purchasers of mortgagor
ties; Pitman v. Henry, 50 Tei. 3C3, foreclosure pro-
asiblc in suit to try title; King v. Brown, SO Tex.
>urchaBer on foreclosure may be subrogated to right
adford v. Knowles, 86 Tei. 508, 25 S. W. 1118,
not bound by foreclosure; McDonald v. Miller, 90
. 95, plaintiff in attachment proceedings not bound
le vendor's lien; McAfee v. Wheelia,! Posey IT. C.
xecutioD sale takes good title against vendor's lien
Ingram, 2 Posey U. C. 261, holder of second note
oredoEure of lien when not a parly; Siltiman v.
369, foreclosure and sale without making purchaser
party do not affect Buch purchaser's title «nd right
9 note, 82 Am. Dec 616.
BBIBH v. STATE.
lancft Is for Jury, irrespective of number of wit-
lylor V. State, 5 Tex. Ap. 2.
:tt7 Correct, not being excepted to, Is not material
sg not injure defendant.
IdersoD V. Btate, 2 Tex. Ap. 12, reaffirming rule;
I, T Tex. Ap. 102, counsel should make proper ob-
r. State, 11 Wyo. 85, 70 Pac. 804, holding erroneous
weight of evidence of possession of recently stolen
Welgbt of Evidence are prohibited.
hnaon v. Brown. 51 Tex. TS, refusing instructions
lence; Dobbs v. State, 51 Tei. Cr. 116, 100 S. W.
in prosecution for murder; Foster v. State, 1 Tex.
iam» V. State, 11 Tex. Ap. 277, both disapproving
nay be inferred from posseesion of stolen property;
I Tex. Ap. 583, jury should not be instructed hb to
en to testimony; in dissenting opinion, State v.
E!52, 31 Pac. 1099, majority reversing for comments^
ABY T. SMITH.
ontiadlctory, does not support the judgment,
lin V. Burns, 70 Tei. 355, S S. W. 51, substantial
tatutes respecting special issues is sufficient; Blum
. 6T6, 9 a. W. 597, where special findings conflict
ct, no judgment can be rendered.
la Admiflslble In Equity to show relation which
ict, from which all appear to b« principals, baar
r's knowledge of such relation.
hrns ». Sogers (Tex. Civ.), 40 S. W. 421, holding
ship nnavailable to persons appearing from note
gainst person taking witliout notice of suretyship;
45 Tex. 73-83 NOTES ON TEXAS EEPOETS.
first Nat. Bank v. Skidmore (Tex. Civ.), 30 S. W. 51
evidence admisBible to Bhaiv retation of principal ane
mike^ of note, though joint and several in form.
Crodltoi Vuylng Taims of Oontnct with debtor
meat diec barges sarety.
Approved in Lane ▼. Scott, 57 Tex, 370, Brown
Tex. Civ. Z32, 22 S. W. 131, and Zapalae v. Zapp, 2
54 S. W. 939, all applying lule to extentiona of
58 Am. Dec. 108.
Agreement to Oive Time in eonalderatian of pay:
debt is nudum pactum.
Approved in Helmg v. Crane, 4 Tax. Civ, 90, S3
ment of accrued interest is no coDsideration for eztei
46 Tex. 73-76, OOOK v. BROWN.
Execution Sals In Tract greater than forty aei
nnder section 40, article 12, of constitution of 1S69.
Approved in Laughter v. Seela, 59 Tex. 179, argue
ing validity of execution sale on judgment rendei
record not ihowtug failure to iHue exeeution withii
ite date.
45 Tex, 76-83, 23 Am. Bap. 602, WILSON ▼. STATl
Want of Consent of Owner to taking of property n
circumstantial evidence.
Approved in Bains v. State, 7 Tex. Ap. 589, Clay
Tex. Ap. 354, and Maekey v. State, 20 Tex. Ap. 60!
rule; Porter v. State, 1 Tex. Ap. 3B8, applied to a»B
State, S Tex. Ap. 322, 323, approving instruction; .
10 Tex. Ap. 698, and Wilson v. State, 12 Tex. Ap. 4
want of consent muat be proved; State v. Bathboi
67 Psc. 189, upholding sufficiency of evidence that bo
out authority of owner; State v. Bjekstrom, 20 S.
481, where stolen property was in possession of owi
that taking was without owner's consent showu by
without agent's knowledge or consent and by confes!
Distinguished in Caddell v. State, 49 Tex. Cr. l:
Hep. 806, 90 S. W. 1014, want of consent of owne
house or of property taken not provable by circums
where direct evidence obtainable; Wisdom v. State,
61 8. W. 928, want of consent not inferred where o
fails to testify thereto.
St«allEg of Varions Articles at same time constiti
and conviction on one bars prosecution on another.
Approved in Quitzow v. Btate, 1 Tex. Ap. 54, ai
State, 7 Wyo. 511, 54 Pac. 230, both reaffirming rule;
1 Tex. Ap. 325, conviction of assault no bar to
threats; Cook v. Btate, 45 Tex. Cr. 180, 08 Am. St.
W. 873, and Pritchfoid v. State, 2 Tex. Ap. 72, b(
autrefois acquit should be submitted to jury; Parch
Tex. Ap. 241, 28 Am. Rep. 438, indictment under
sonans is no bar; Addison v. State, 3 Tex. Ap. 43, 1
9 Tex. Ap. 153, 35 Am. Bep. 733, and State v. Cos|
67, SO N. W, 227, all applying rule though belong
owners; Bucker v. State, 7 Tex. Ap. 551. indictm
murder of more than one person; HirahGeld v. State,
'E8 ON TEXAS EEPOETS. 45 Tex. 84-88
■ame caaae, irrespective of name; Adaau v.
, applied to illegal bianding of stock; Willis
588, 6 S. W. 859, eooviction on one bais the
9, 31 Kan. S16, 47 Am. Bep. 511, 3 Pac. 349,
lill bars indictment for burning books therein;
Dt. 495, 75 Fae. 39, wbere three persons placed
il sums leas than (50 on table of agent, who
lea and appropriated them to own nse, there
raod larceny; State v. KiefTer, IT B. D. 71, 95
ion for theft of one of several aoimali found
idence of defendant's acquittal of theft of otie
aiseible under plea of former jeopardj, though
Terent owners; United States v. Scott, 74 Fed.
ition of assignment for political parX'Osea bj
Sanders t. State. 55 Ark. 388, 18 B. W, 377,
«aling under indictment for theft of horse,
prosecntion for the saddle and bridle; Simco ▼.
irguendo; in dissenting opinion. State v. Nksh,
holding acquittal for assault on one does not
nother. See notes, 58 Am. Dec. 539; 58 Atn.
176; 54 Am. St. Bep. S79; 92 Am. St. Bep. 117.
ight V. State, 37 Tex. Cr. 629, 40 B. W. 492,
iging to different owoers stolen at same time
T taking one horse no bar to prosecution for
T. State, 17 Tex. Ap. 169, acquittal on one
he other; State v. Maggard (Mo.), Bl 8. W.
nt owneri scattered about cannot be combined
pa T. State, 85 Teno. 560, 3 S. W. 437, holding
lent for burglariously entering home and eteal-
idictmeot for larceny of same goods,
ged In DUI«mit Indictments are so diverse as
that they are same, court may decide plea of
T. State, 41 Tex. Cr. 308, 53 S. W. 127, where
1 bar show distinct offenses, not provable as
ner acquittal is shown, conrt may strike out
r T. STATE.
lUp in one from whom possession is taken is
T. State, 3 Tex. Ap. 167, taking from person
s sufficient; Samora v. State, 4 Tex. Ap. 513,
Tex. Ap. 489, 9 S. W. 767, both applying to
>n V. State, 5 Tex. Ap. 484, property of minor
qtbI guardian; Crockett t. State, 5 Tex. Ap.
g to widow and children may be alleged in
Jtate, 7 Tei. Ap. 665, and Calloway v. State,
Lolding where control is in neither, allegation
erroneous; State v. Ireland, 9 Idaho, 690, 75
ation avera title to stolen property in A, and
are owners, variance not fatal.
son V. State, 3 Tex. Ap. 209, proof that prop-
Btal to allegation that it belongs to wifs.
45 Tex. 88-119 NOTES ON TEXAS EEP0BT8.
DMcrlpUon of Propertr Stolen as "two certain oxen" is i
Approved in Camplin t. State, 1 Tei. Ap. 109, approvi
work oxen"; Grant t. St&te, 3 Tex. Ap. 4, approving "on*
calf of Tteat cattle kind"; Traftou v. State, 5 Tex. Ap. 4S3, a
"one certain yearling of npeciei of neat cattle."
46 Tex. 88-96, RIO OEANDE B. B. v. BBOWNSTIU^E.
In Absence of Asslgnnient of Errors, supreme court wil
disoretion, consider and decide errors plainly apparent on
record going to foundation of action.
Approved in Bexar Bldg. etc. Assn. t. Newman (Tex. Civ
W. 463, holding in absence of assignment of error, jndgmi
be affirmed in absence of fundamental errors; Farro v. Dot
Civ.), 2S S. W. 920, holding error in dismissing justice com
for insnfSciency of bond reviewable though aot assigned; All
Ins. Co. V. Davis (Tei. Civ.), 45 S. W. 605, holding, that jud
not supported hy pleading, is fundamental error considered o
though not assigned.
Monlcipal Corporation having control of streets may sue ti
obstructions.
Approved in Stearns Co. t. St. Cloud etc. E. B,, 38 Minn
N. W. 93, coanty may enjoin laying of tracks on count;
Moundsville v. Ohio B. R., 3T W. Ta. 100, 16 8. E. 516,
suit by city to abate nuisance; In re Debs, 15S U. S. 587, 15
Bep. 907, 39 L. 1103, United States may sue to remove obs'
to interstate highways. See notes, 44 L. B. A. 567; 39 1
650, 651.
Ballroade may Use Pnbllc Streets withoot compensating cit
Reaffirmed in Houston etc. B. B. v. Odnm, 53 Tex. 3S1. i
C h. B. A. 373.
Distinguished in Galveston etc. Ry. v. Galveston (Tex. i
S. W. 31, city has right to prescribe conditions, and enforce t
thereof, on which steam railroad may use streets.
Municipality cannot Bevoke Privilege granted railroad
public streets after work is commenced.
Reaffirmed in Denison etc. Ry. Co. v. St. Louis etc. By.
Tex. 242, 30 Tex. Civ. 476, 72 S. W. 202, and Mayor v. Hou
Ry., 83 Tex. 555, 29 Am. St. Eep. 684, 19 S. W. 129. See
L. E. A. 144.
BailroiMl OluuteT Authorizing Building of Bead to "B
Grande " imports authority to extend road within city limits-
Approved in Central of Georgia Ry. Co. v. Union Spri
Ry. Co., 144 Ala. 647, 39 So, 471, 2 L. R. A. (n. s.) 144,
building depot at certain point io terminal city may extenc
another point in s<ich city, where city had granted it right
to such point when road coutemplHted; City of Canton v.
Cotton etc. Co., 84 Miss. 289, 105 Am. St. Eep. 428. 36 So.
L. E. A. 561, upholding right Of railroad to lay conduits in
way in city street.
46 Tax. 97-119, COOK v. BUENLET.
To Sustain Plea of Beg Judicata, it mutt appear that i
material issue necessarily determined on the merits.
Approved in Lucas v. Heideoheimer, 3 Tex. Ap, Civ. 429, re;
rule; Walsh v. Ford, 27 Tex. Civ. 679, 66 3. W. 857, holding
NOTES ON TEXAS EEPOKTS. 45 Tex. 119-134
it suHtained where partiea and issues herein not
suit, aod issues in this suit not determined therein;
. Civ.), 20 S. W, 866, holding judgment deterroiniDg
D issues is res adjudicata; Gray v. Edwards, 3 Tei.
538, holding judgment on demurrer herein not res
0 T. Bosenfield (Tei. Civ.), Zi S. W. 32*, holding
to cancel judgment where court instmcte jurj not
judgment does not bar judgment creditor from
nt against plaintiff; Darragh v. Kaufman, 2 Posey
eitends to everj point in issue; Backle? T. Foulkes
W, 75, holding judgment not res adjudieata as to
JarksoD v, Finlay (Tei. Civ,), 40 8. W. 428, hold-
preclude- second suit on same matter must be on
■. Ins. Co. V. Schmitt, 10 Tei. Civ. 553, 30 S. W.
insured and party holding assignment from him
uit to recover on the policy, it is immaterial to
r which one recovers in the suit. See notes, 65 Am.
lee. 779.
i of Bm Jadlcatt, it may be shown by evidence
in matters were determined.
dbam V. Mclver, 49 Tei, 567, 572, and Fahey v.
Co., 3 N. D. 223, 44 Am. St. Eep. 557, 55 N. W.
ing rule; Freeman v. MeAninch, 6 Tei. Cir. 648,
wing evidence that only boundary, not title, raised
' title; dissenting opinion in Hogte t. Smith, 136
W. 562, majority holding where in suit for apeciflc
idant denied contract and in crossbill prayed to
r judgment for rents, and decree directing spcpiilc
dismissing crosa-bill reversed, and on second trial
but no decree made as to crossbill, defendant's
pras concluded; Frasher v. State, 3 Tex. Ap. 279,
Jteg, 96 Am. Dec. 777; 96 Am. Dec. 785, 786; 44
1 Freeman v. MeAninch, 87 Tex. 138, 47 Am. St.
J. 99, diaallowing evidence that issue necessarily
presented; Backey v. Fowlkes, 89 Tex, 616, 36
it silent as to one cause of action shows presump-
ca no ground of recovery.
JEUi ▼, SHACKELFORD.
mon is not liable for profit on improvements, his
[ eicluded.
nicer v. Henderson (Tex. Civ.), 43 S. W. 29, re-
iborn v. Osborn, 62 Tex. 498, tenant entitled to
improper exclusion; Akin v. Jefferson, 65 Tex.
occupation by survivor of community proptTly;
IB, 77 Tex. 629, 14 S. W. 223, applied to tenant in
ig land; Bennett v. Virginia Hanch tto. Co., 1 Tex.
N. 128, disallowing recovery of rent. See notes,
485, 487; 78 Am. Dec. 667; 5B Am. St. Hep. 936;
!6; 20 L. B. A. 449, 452.
I Eastham v. Sims, II Tex. Civ. 137, 32 8. W. 361,
tnd occupation to heirs of wife against vendee of
45 Tei. 134-J53 NOTES ON TEXAS EBP0ET8.
Fact Tliat OoMnant Occnpiu leu tban his sbare ai
provements is gufficient eonaideratioD for relflase of clai
pTofitB from Huch □ccupanc}'.
8e« note, 28 L. E. A. 857.
Cotenant la not UaUe for hm and occupation nnti
entry or unless there is an express agreement to aecoi
of occupation.
See note, 28 L. B. A. 831, 833, S37, 850, S52.
Tenant In Oommon in exclusive reception of renta
therefor.
See note, 28 L. E. A. 838, 843, 84S.
45 Tex. 134-141, WBIOHT ▼. ASAU&
Iioglslatuie Orgsoizlng New OoiwUm naj provide I
■erve till next general election.
Approved in Ward t. Sweeney, 106 Wis. 64, W N.
PnrpoM of Cfmitltutlon, derived from all teetiona api
•ubject, should be fallowed.
Approved in State v. Cook, 7S Tex. 410, 14 S. W. 9:
organisation of counties; Bailroad Commission v. Bon
SO Tex. 349, 38 8. W, 753, authority of railroad co
limited to flxing tariflfi.
Wlien Tom of Elective OfUce ia ambiguous, it she
preted as the shorter period.
Approved in Maddox v. York, 21 Tex. Civ. 623, 54 3.
elect dying before qualifyiug, vacancy filled by commisi
Smith v. Bryan, 100 Ta. 205, 40 S. E. 6S4, under cha
that policemen shall hold office during good behavioi
moved by mayor, mayor may remove at will; dissenti
State T. Direke, 211 Mo. 590, 111 8. W. 7, majority I
repeal of 1906 of conatitution, article S, section 10, one
in 1906 for two years is eligible for new four year term.
Distinguished in Farrell v. Pingree, 5 Utah, 450,
shortening term of office cannot apply to incumbents.
46 Tex. 143-160, AKSCHICKS t. STATE.
Wliere Affiants Making StatnbHT SUoving for chai
are not shown of bad character or without information,
be granted.
Distinguished in Davis v. State, 19 Tex. Ap. 220,
apply to proceeding under section 578, Code of Criminal
Miscellaneous.— Anschicks v. SUte, 6 Tex. Ap. 533,
former appeal.
46 Tex. 151-153, NEWBON v. BEABD.
Letter Authorizing ExecntLm of Mortgage on chat
constitute a mortgage.
Approved in Berkey etc Co. t. Sherman Hotel Co.,
16 3. W. 809, verbal agreement when purchasing chs
chattel mortgage on them does not constitute the mortg
In Bnlt Against Mortgagor of PerBCnal Property an<
to recover the property, plaintiff muM show that he he
18 ON TEXAS BEPOBTS. 45 Tex. 154-171
ictB eomplained of, and that defeudaata are
perty.
'. Miller, 25 Tex. Cir. 193, 60 S. W. 882, in
of mortgaged property rendeied inacceBsible
ay be era Bs-exa mined as to statementB prsvi-
State, 38 Tex. Cr. 100, 70 Am. St. Eep. 724,
bingtOD T. State, 17 Tex. Ap. E04, both con-
to matters testifled to in chief,
in diEseating opinion in Meadowcrnft v.
L E. 312, 35 L. K. A. 179, to the point tbat a
al, punishment for two defendants cannot be
ijoritif Buataining verdict fixing joint punish-
jits are foncd guilty of embezzlement.
Ins. Co. T, Levy, 3 Tex. Ap, Civ. 508,
most be supported by valuable consideration
I aa estoppel.
etc. Ina. Co. v. McOregar, 63 Tei. 404, allow-
in of time; Sun etc. Ins. Co. v. Texarkana
I. Ap. Civ. 51, 15 S. W. 35, knowledge of
)rfeiture; German etc. Ing. Co. v. Waters, 10
577, there must be knowledge to constitute
B. Co. V. Toby, 10 Tei. Civ. 428. 30 8. W.
ireaent proof of loss in time waived; Hunter
32 S. VI. 424, holding, to be good as tvoid-
plea mult allege consideration for release;
iv.), 44 S. W. 681, holding evidence showing
ntract inadmissible unless waiver pleaded;
:Ane, 97 Minn. 106, 106 N. W. 468, 4 L. B. A.
issuing policy without inquiry did not naive
i ownership; Insurance Co. v. Brodie, 53 Ark.
. B. A. 45S. expiration of time waived; San
tewart, 94 Tei. 447, 61 S. W. 389, failure to
default waived; Etter v. Dugan, 1 Posey U.
contract to excuse payment; Qill v. Wilson, 3
perMdlng Wrtttan Contract or estoppel must
ible certainty.
etc. Ina. Co. v. Hodge. 30 Tex. Civ. 280, 71
ver of requirement to furnish required proofs
jse furnished without objection, not admissi-
alleging compliance by plaintia with requir«-
Textts etc. Ins. Co. v. Hutchins, 53 Tex. 88,
rranty must be pleaded; East Texas etc, Ins.
838, U S. W. 750, waiver roust ba pleaded;
)
45 Tax. 171-202 NOTES ON TEXAS BBPORTH.
Texas Produce Co. t. Turner, 7 Tex. Civ. 213, 26 S. W. 919,
ftUowing estoppel not pleaded; Mutual etc. Assn. v. Lorenberg.
Tex. Civ. 361, 59 8. W, 318, isiue of waiver not raiaed; Mereha
Ini. Co. v. Dwyor, 1 Posey U. C. 449, waiver must be set out i
certainty.
46 Tex. 171-lSO, HOUSTON ETO. B, ▼. BRADLST.
Suit for Negligence under act of 1860 may be brought by gnan
in hia own name or in name of ward-
Approved in March v. Walker, 48 Tex. 375, HouBton etc. Ry
Moors, 49 Tex. 44, and Price r. Houston etc. Navigation Co.,
Tex. 537, all holdiog aet not repealed by section 30 of article i:
constitution of 1869; Golf etc. Ry. v. Styron, 66 Tex. 425, 1 8.
163, allowing suit in name of next friend; Btankenship v. Eana
etc. By., 43 W. Va. 139, 27 8. E. 357, aummons in name of "A, gu
ian ad litem for B, a minor," is sufficient; O. C. & S. F. By. v. Sty
2 Posey U. C. 276, father cannot sue in hia own name for benefl
Uotber cannot BeleaM Olalm of infant children for death of fat
Approved in Galveston etc. B. B. v. Le Gierse, 51 Tex. 201, rai
bind them by auit; Southern Pacific Co. v, Tomlinaon, 163 U. S.
375, 16 Sup. Ct. Bep. 1173, 41 L. 195, widow cannot flie remitt
for other beneficiaries. See notes, 10 Am. St. Bep. 685; 21 L. B
(n. e.) 339; 34 L. B. A. 793.
46 Tax. 181-184, ADBIANOE t. OBEWS.
Suit Agxlnst Executor carrying on plantation for service n
allege the price claimed is reasonable.
Approved in Reinstein v. Smith, 65 Tex. 251, one furnishing mo
to eieeutor to conduct plantation must be reimbursed. See note
Am. Dec. 561.
«6 Tex. 184-189, BOBEBTB t. SOHni.TZ.
OnardiMi not Liable for accepting payment in Confederate n
approved by the court.
Approved in Bobertson v. Johnson, 57 Tex. 66, payment in i
notes does not affect title of purchaser.
46 Tex. 190-202, LEWIS v. ATLOTT.
ReAl Fropertr cannot Pass by nuacDpative will.
Approved in Watts v. Holland, 56 Tex. 57, Furrh v. Winaton.
Tex. 525, 1 S. W. 530, and In re Davis, 103 Wis. 457, 79 N. W,
all reaffirming mie; Moffett v. Moffett, 67 Tex. 644, 4 B. W. 71, app
under article 4862, Bevised Statutes.
InMmacli aa ttw Texaa Statnte of WUle and the act adopting
common law were passed at the same sesaion of Congress, they n
be construed together ao that if not repugnant to each other t
may both stand.
Approved in Brown v. Chancellor, 61 Tex. 449, constrning
1848 and 1S62 restricting operation of the law merchant rt
days of grace.
Act of 1S71 BemoTing maabilitles of Wltoessei does not al
proof of will by devisee or legatee.
Approved in Fowler v. Stagner, 55 Tex. 397, reaffirming rule; W
V. Howard. 56 Tex. 66, witness is incompetent unless lie renoui
right M executor.
NOTES ON T£XA8 BEP0BT8. 46 Tex. 203-233
'Krk> V. Caudle, 58 Tex 231, partj cannot testify
to deceased; Heard «. Busbj, 61 Tei. 14, disallow-
» tTBusaction with decedent; Sanders v. Kirbie, 94
V. 6£7, defendant heirs refusing to contest maj be
»B hy contestant.
n Martin v. MeAdams, 87 Tei. 22S, 27 S. W. 2S6,
tj to genninenen of testator's signature.
Omr BAKE V. FIBST NAT. BAKK. -
Drm Ajnonnt paid on raised check from iudorser.
h B. A. (n. s) 73; 2 L. B. A. 96.
D Vogel T. Ball, 69 Tez. 607, 7 S. W. 102, agent for
was not liable.
Mistake m&j be recovered back, though party maj
>f knowledge.
an Antonio Nat. Bank t. UcLane, 96 Tex. 55, 70
hose mistalte in setting out in his pleadings descrip-
vhieh foreclosure sought has misled other into same
3 deny latter's right to have mistake corrected in
urpoie; Zieachang t. Helmke (Tex. CIt.), 84 S. W.
»quitj jurisdictioD to correct mistakes; Sullivan v.
.), 7S S. W. 374, where parties contracted to make
:e* with statement attached and' defendant made
tement, payment of draft not settlement precluding
iiDed in draft; Alston v. Richardson, 51 Tez. 6,
paid by attachment sureties on belief that defend-
; Oack V. Taylor Co., 3 Tex, Ap, Civ. 247, allowing
rat Money on forged signature of its correspondent
on City Nat. Bank v. Peyton, 15 Tex. Civ. 190, 39
ming role; Bouvsnt v. San Antonio Nat. Bank, 63
lot liable where payee is negligent. See note, 10
0, 52, 71.
[.BVT V. McSOWEU^
fplnlon on evidence by judge is erroneons.
eating etc. Machine Co. v. Erie City Iron Works
. W. 547, reaOtrming rule; Franklin v. Tonjoura, 1
1, reversing for comment in hearing of jury after
rtoni Ooods to defendant on instruction to release
for value.
DUghton V. Pnryear, 10 Tex. Civ. 384, 30 S. W. 584,
to recover his damage only from levy. See notea,
91 Am. St. Bep. S43.
right T. Wooters, 46 Tex. 382, foreclosure does not
sr; Schmelta v. Garey, 49 Tex. 58. foreclosiirp not
idee in poascssiau; Poland v. Davenport, SO Tez.
45 Tex. 234-272 NOTES ON TEXAS EEPOETS.
279, purcbaser not affected by proceeding in probate
judgment; Spring v. Eisenach, 51 Tej. 435, vendee
order of sale of bankrupt court ta enforce ienior
V. Black, 62 Tex. £9S, io suit bj assignee of Tendor'i
and original maker are necesaary; M!a;eTE t. Paxt
14 S. W. 569, par chaser of homestead not afFected
Dalian t. Hollacher, 2 Tex. Ap. Civ. 476, applied
property; Andrews v. Key, 77 Tej, 40, 13 8. W.
junior lienholder.
Disapproved in Western Union Tel. Co. v. Aon .
Fed. 385.
45 T6X. 234-272, AUSTIN ▼. GULF ETO. B. B.
AsBlgDment of Enor must be apecific.
Approved in St. IjOnia etc. Co. v. Dobie (Tex. Cii
aiaignment of error that "trial court eired in overr
motion for new trial" ii too general; Texas etc. Ey.
233, holding grounds of error not specified; Hand
Tex. Ap. Civ. 473, assignment mast be specific.
Metbod of Ouiylng Oat Oiant of Fo>weT by con
prescribed by legislature.
Approved in Tarrant County v. Butler, 35 T»x. C
658, upholdiog fee bill of IS97; dissenting opinion ii
55 Cal. 625, majority holding section S, article 11
self- executing.
ZiawB Belatlng to Sanw Snb]«ct and enacted dur
are construed together.
Approved in Laught«r v. Seela, 59 Tex. 1S3, hold
main except in case of strongest repugnancy; We
Tex. Ap. 261, holding death penalty not repealed;
gan, 94 Tex, 597, 63 S, W. 1005, applied to land acti
Uatten Oemune to Snbjoct Matter of law may b
one title.
Approved in Howth v. Greer, 40 Tex. Civ. 56i
regulation of county attorney's fees so connected i
of corporation courts M to be embraced within titl<
creating corporation coarts; City of Oak Cliff v. S
77 S. W. 27, upholding 8p. Laws 28th Leg., p. 391,
charter; Johnston v. Martin, 75 Tex. 40, 12 8. W.
sion to carry declared object into effect is admissible
27 Tex. Ap. 159, 11 Am. St. Hep. 184, 11 8. W. lOS.
more than one object; Nichols v. State, 32 Tex. Cr. 4
amcodment referring to code is sufficient; Smith t.
Tex. Civ. 15B, 44 S. W. 924, section 7 is within title o
second IcRislature, chapter 54; Slone v. Brown, 54 '
act of February 9, ISSl, valid.
Under Act of 1B71, county court mast determine
two-thirds of qualified voters voted in favor of prop
Approved in Anderaon v. Houston etc B. R., 52
is concluaivc, except in direct proceeding; Qraham
Tex. 68, 2 6. W. 745, irregular vota does not mak
city council void.
Laws Iievylng Taxes for Oeoeial Bovonuo have i
TES OH TEXAS EEPOETS. 45 Tex. 272-312
V. GalTeston, 51 Tei. 320, provigioDB for collee-
iies DOt applied to assessments for local im-
Tith eon-
non Co. ». Houston etc. R. E., 52 Tex. 239.
i be Enacted in form provided, query.
io y. Micklejohn, 89 Tex. 82, 33 S. W. 736, form
e is m&adatory.
&Ct Of 1B71, describing for what parposes cor-
.nized, refers to objects of tbe character of those
lal Bank t. Texas Investment Co., 74 Tex. 435,
.tion may be formed to deal iu real estate and
llngusta etc. Assn., 3 Tex. Ap. Civ. 281, autbor-
ociation foi carrying on business.
istTUCUon of navigation eana) is not aothorized
f organization of corporations for canal »nd
A. 834.
note, a L. B. A. 611.
rr T. GALVESTON COUNTT.
ing Object, expressed in title, may contain pro-
OTce it.
rte Mabr}r, 5 Tex. Ap. 90, act levying dog tax
State, 8 Tex. Ap. 220, 34 Am. Sep. 739, only
i are hold void; Snyder v. Compton, 87 Tei.
plied to act for sale of public lands.
HOND T. UANN.
Lo OD Draft drawn by agent In ordinary eoorts
id benefit of principals.
gOT T. Hudson (Tex, Civ.), 30 8. W. 489, hold-
recuted by agent for benefit of principal may
ipal amonnt paid as surety.
!T80H T. HEBBEBT.
I Acqoind by publication against nonresidents
the state.
. V. Miles, 1 Tex. Ap. Civ. SS9, reaffirming rule;
Tex. Ap. Civ. 511, garnishment gives jurisdic-
reston v. Walsh, 10 Fed. 325, judgment void
publication.
ITEDT T. BBIEBE.
for accepting Confederate monej,
tson V. Johnson, S7 Tex. 66, payment of Con-
trdian gives title to vendee.
Un Iilne of His Duty, without fraud, is not re-
1 V. Gray, 17 Tex. Civ, 655, 43 S. W. 926.
45 Tex. 31&-324 NOTES ON TEZAS BEPOBTS.
Money TocbnicoUy Means Motkl Ooln, bat generally Inclsd
curreot circalating medium.
Approved in Boyd t. Olvey, S2 Ind. 2QS, cTeditor cannot b
pelted to receive bank notes; Stete v. Hill, 47 Neb. 538, 68
559, "money" inclodee any general circa la ting medium.
46 Tox. 312-317, 23 Am. Bep. 608, FTE T. FETEB80K.
Power to Abate Nalrancee doea not include power to deelni
to be a nuiiauee wbieh is not suob per se.
Approved in Ei parte Bobinaon, 30 Tei. Ap. 485, 17 8. W
municipal ordinance cannot declare keeping of Btallione for i
a nuisance. See notes, 120 Am. St. Bep. 372; 38 L. B. A. S99.
City iLOS No Power to eitablieh Are limits witbout eiprsaa
nor to declare modern buildings therein to be nuisances.
Approved in Dee Moiuee v. Gilchrist, 67 Iowa, 213, 56 An
34^, 25 N. W. 13S, cannot do ao without petition of adjacen
ers. See notes, 52 Am. St. Kep. 752; 93 Am. St. Bep. 410; 38
A. 171, 174; 12 L. B. A. 150.
Distinguished in Ford v. Thralkill, 84 Oa. 171, 10 8. B. 600,
pia V. Uann, 1 Wash. 394, 25 Pac. 338, 12 L. B. A. 150, Cha
V. Eeed, 27 W. Va. 890, 691, 55 Am. Bep. 343, and Hubbard v
ford, 20 Or. 313, 25 Pac. 641, 11 L. B. A. S33, all holding po'
guard against fire gives authority to establisb fire limits.
Disapproved in Kaufman v. Btein, 13S Ind. 55, 46 Am. SI
373, 37 N. E, 335, 24 L. B. A. 46, may establish Are limits
general welfare clause.
Municipal CorporatlonB have only snch powers as are grant
presaly or impliedly.
Approved in Davis T. Burney, 58 Tex. 367, order providii
registration of county scrip is not void; Ex parte Grace, 9 Te
385, municipality cannot compel citizens to work on streets; Ei
Campbell (Tei. Cr.), 22 8. W, 1020, holding town council ■
pass ordinance fining residents for failing to work on streets i
penalty in lieu of working; Charleston v. Beed, 27 W. Va, 6
Am. Bep. 344, city may establish fire limits; Brown v. City o
veston, 97 Tex. 14, 75 S. W. 495, arguendo. See notes, 31 An
629; 29 Am. Rep. 348.
Mnniclpallties may Problbit throwing of dangerous articles
apper stories into streets and establish fire limits.
See note, 13 L. B. A. 132.
IS Tex. 317-324, LOCKHABT ▼. HOUSTON.
In Suit for Taxes, allegation that tax was asEessed Is sufl
without specifying particulars.
Approved in Parker v. Jacksonville, 37 Pla. 352, 20 So. S40
Srming rule; Galveston etc. Ry. Co. v. City of Galveston, 96 Te:
74 S. W. 539, in action for city taxes, allegation that city, by ord
July passed, levied and ordered to be collected ad valorem
imounting to 11.50 on tbe $100 for municipal purposes, is snfi
Elma V. Carney, 4 Wash. 420, 30 Pac. 733, applied to street
Id Snlt for Taxes, assessment and default must be shown.
Approved in Houston Co. v. Dwyer, 59 Tex. 116, in suit ■
tax collector, it must be shown he received the taxrolls.
N0TE8 ON TEXAS EEPOBTS. 45
FBOST T. FE08T.
PkCtI must be certified by judge below.
lalveston ete. Rj. Co. t. Keen (Tex. Cii
lule; JohnHon v. Blount, 4B Tex. 41, Fi
i90, and Taylor v. Campbell, 59 Tes. 3
lot BuOicient; Ouerrero v. State, 41 Tex
ag signature of trial judge muit appear
indicate approval.
Facta must b« filed during term of court
Wade T. Buford, 1 Tex. Ap. Civ. 770, »
I is not coniidered.
Statement, rulingi during trial and actio
rlewable.
lardemyer t. Young, 1 Tex. Ap. Civ. 6C
Ferryman, 59 Tex. 107, Lockett ▼. Scb
[aby V. Koenig, S Posey U. C. 441, all
>ni; Teia* etc. By. v. McAllister, 5S '
>n evidence oi instructioos; Ray v. Wll
i98, holding orders of probate court in at
be reviewed en masse, but must be spei
MB of Action against different partici
ffilliams V. Robinson, 63 Tex. 582, wh
one defendant precludei right against a;
lorrU V. Davis (Tex. Civ.), 31 8. W.
upon railway bonds improperly joined
ntribution agreement between BubBcribc
Civ. 200, 54 S. W. 1071, parties ehargf
IS cannot be joined; Skipnith v. Hurts
ction ex delicto cannot be joined with
T. Hubbard, 2 Posey U. C, 736, disallo
sault with claim against one for money
ly IT. C. 420, action againvt executor fa
should not be joined with action to
;ries title to the land,
la not Fnlly AdmlnlBtored, appointment
ion ia in discretion oi court.
Baker v. De Zavalln, 1 Posey U. C. 631
. 416, 418.
:h is not properly deducible from flndioj
B versed.
litchell V. Western Union Tel. Co., 12 T
harge omitting necessary iuue is erronei
ay U. C. lOS, conrt cannot look beyond
Freoented to Jury should present quesi
leflin T. Burns, 70 Tex. 8S5, 8 S. W. (
ORB ▼. BHINE.
onferring additional authority on certal
titutional.
45 Tei. 355-379 NOTES ON TEXAS BEPOBTS.
Approved in Holmes y. Bnekner, 67 Tex. 108, 2 8.
ment cannot be eoUateTallj attacked, thougb not ah
Laglstatttn ntay Enact LocaI Lam in abs«aee ol
reatrictioDB.
Approved in Davii ▼. State, 2 Tex. Ap. 430, legislati
\z6 city to ticenae occupations probibited by state li
Black, 47 Tex. 566, set to encourage atoek-raising sue
number of eountiea is valid; Cox v. State, S Tex.
latnre may fix terms of conrt for a particular county.
SUtotes and OonstAnUnu operate prospectively i
trary is clearly shown.
Approved in Walker t. State, 7 Tex. Ap. 25S, efa
(or crime does not apply to past ofFenses. See note, 1!
Iaws ue Onl7 Hflld Unconstitntltnial nheie they
the coDstitotion.
Approved in Lytlo v. Halff, 75 Tex. 137, 13 S. W.
may prescribe judicial districts; State v. McAllister,
8. W. 189, 28 L. B. A. 623, legislature may make al<
by wards; Bailroad ComiBiasiOD v. Houston etc. Ry., !
S. W. 753, powers conferred on railroad commiuion
to fixing rates; Cox v. State, 8 Tex. Ap. 287, legis
terms of court for a particular county. See note, 21
4S Tex. 365-379, WAOO TAP S. B. t. SFTBTJT.
Where Secmlty Bood la Exacted from C<nitractor t<
ance with the contract, it cannot be annulled or reai
representations on his part aa to his solvency.
Distinguished in Feld v. Boanoke etc. Co., 183 Uo.
630, a director of a carporation ia presumed to hnv<
the resolotions of its board.
In Mitigation of Damagaa for awarding new coi
may show contractor's inability to complete work wi
Approved in Heame t. Garrett, 49 Tex. 625, empl
from completing contract may sue at once for dan
etc. By. v. Shirley, 89 Tex. 97, 31 8. W. 291, and Hot
V. Shirley, 54 Tex. 133, both applying rule in snbi
Jackson V. Martin (Tex. Civ.), 41 8. W. 840, hold!
breaeh of contract, burden is on defendant to establi
ance by plaintiff. See note, 53 L. B. A. 37, 65.
Oenerally. Futon Piofita an not Allowable m Dam
to result from work onder contract ia recoverable on b
Approved in Gates v. Sparkman, 73 Tex. 623, 15 An
11 8. W. 850, refusing to compute mere specolations
stockholder; O'Connor v. Smith, 84 Tex. 238, 19 8. 1
V. Waco etc. By., 78 Tex. 138, 10 S. W. 544, both awi
to railroad contractor prevented from completing worl
etc. By. v. Hunnicntt, 18 Tex. Civ. 314, 44 S. W. 536,
ages for condemnation of land by railroad; Stresai
Tex. Ap. Civ. 488, applying rule in action for brea<
Svfasey T. Gay, 3 Tex. Ap. Civ, 273, applyiDg rule
damages resulting from injunction; Anderson Eleeti
burne etc. Co. (Tex. Civ.), 44 3. W. 931, holding pi
flow dirpotly and immpJiately from contract reooveral
on breaeh thereof. See note, 53 L. B. A. 44, 62, 63, 61
I ON TEXAS BEP0BT3. 15 Tex. 330-388
U PartT iDJUTed for low sustained bf wrong
Conrad, 1 Tck. Ap. CiT. 700, and Ma^o t.
i, both holding Hpeeial damagPB not recover-
ided; Long t. McCauley (Tei. Sup.), 3 8.
negation of damage from stoppage of mill
laeh of contract for floating and delivering
[. CiT.), 29 S. W. 506, holding measure of
ase, where rent unpaid, difference between
use of land; Blaek Eiver Lumber Co. v.
W. 215, awarding damages for refueat to
,tloa Of Contract moat satisfaetorily ihow
iespcke, 78 Tex, 547, 13 8. W. 291, applj'ing
contract for sale of land; Keating v. Me-
l, 36 S. W. 599, allowing trial amendmcDt
ict omitted; Westchester etc. Ini. Co. v.
, W. 215, holding, to secura reformation of
r mistake must ba clear and latisfactoTj;
:iT.), 73 S. W. S33, holding no mutual mis-
lontract for sale of land, and draftsman
to snbjeet matter of alleged mistaka and
I did not know it was omitted; diHenting
1 etc. Co. T. Pace, 23 Tex. CiT. 269, 56 S,
ig sufficiency of showing of mistake in de-
eform its boundaries,
etc. By. T. Shirely (Tex. Civ.), 24 a W.
UDOE T. HATHA WAT.
It on Hota, alleging conversion, states new
rhich limitation runa until filing.
levitJe, 91 Tex. 142, 44 S. W. 288, holding
>te, changing claim to implied promise to
JEW cansB of action; Tucker v. Bryan, 1
ion runs until fliiog of amendment stating
ich T. Ortlieb (Tex Ciy.), 28 8. W. 1020,
9 for breach of lease does not suspend
same damages for breach of contract to
uideiation, for creditor to receive less sum
irgB debt.
] etc. Ids. Co. v. Hennessy, 99 Fed. 71,
in debtor's assignment does not discharge
that creditor takes less than whole debt,
lensation wilh alt creditors.
V. Walker, 1 Tex. Ap. Civ. 511, applying
omise settlement.
IB Of Contract cannot be altered by parol.
Loan Assn. v. Ham (Tex Civ.), 36 8. W.
iment is unambiguous, parol testimony is
45 Tex. 388-402 NOTES ON TEXAS EEPOETa
inadmissible to show how 0119 party eonstmed it; dissenting op
in FecOB Valley Bank t. Evans etc. Co., 107 Fed. 662, majoiit
lowing ebange of chattel mortgage provlaiona by subsequent ;
agreement.
WiMre Naw FartiM Mtida FUInUffa aie entitled to recover, ;
ment in name of original parties is error.
Approved in Goldman v. Blum, 58 Tei. 636, maiintaining soi
note by transferees of part only; Everaberg v. Miller (Tei. Civ.
B. W. 225, holding amended petition making a party of persoi
Icged in. defendant's answer to be interested is not new suit.
45 Tex. 38S-39B, TAITZ. ▼. WBIQHT.
Wbora Tbere Is Inadequacy of Frlc« at sheriff's sale, together
irregularities, deed will be canceled.
Approved in Johnson v. Crawl, 5S Tex. 575, Hughes v. Duncai
Tei. 75, and Pearson v. Hudson, 52 Tex. 362, all avoiding execi
bales for inadequacy of price; Kauffman v. Horriss, SO Tex.
avoiding sheriff's sale of land for fraud causing inadequacy; Alli
Piers on, 60 Tex. 605, refusing to vacate sale for inadequacy wit
reimbursement of purchaser; Weaver v. Nugent, 72 Tei. 280, 13
tit. Hep. 799, 10 S. W. 461, vacating sale for irregularities cat
inadequacy; Irvin v. Ferguson, 83 Tei. 496, 18 S. W. 821, Mart'
Anderson, 4 Tei, Civ. 117, 23 S. W. 293, Stark v. Ingram, 2 F
U. C. 634, and House v. Eobertson, 89 Tei. 687, 36 S. W. 252
vacating sale for inadequacy, coupled with irregularities; Leepi
O'Donohue, 18 Tei. Civ. 534, 45 S. W. 328, vacating eieeulion
for inadequacy and insufficient notice; Johnson v. Daniel, 25
Civ. 592, 63 S. W. 1034, vacating constable's deed where price ii
quate, and no notice of levy given; Davis v. Chicago Dock Co.,
111. 188, 21 N. E. 831, vacating sale for inadequacy, coupled
46 Tex. 396-401^ RICH t. FEBOUSON.
Words "Uor» or Less" In D«ed are prima facie evidence that
ties risked gain or loss in estimated quantity.
Approved in Dargan v. Ellis, 81 Tei. 197, 16 8. W. TOO, awai
recovery for large deficiency in number of sheep sold.
When Land Is Sold by Acre, less deficit will be taken as evid
of mistake than when sale is in gross.
Approved in Gilmore v. Kaufman Co. (Tex, Civ.), 40 S. W
holding tract being sold by acre, grantor may recover excess
quantity Hold and paid for. See note, 94 Am. Dec. 289.
Parol Evidence of Fraud in sale of land is admissible.
Approved in Herring v. Mason, IT Tex. Civ. 573, 43 8. W.
ailmitting parol proof of fraudulent representations on sale of 1
Turner v. Qrobe (Tei. Civ.), 44 S. W. B06, holding parol testii
admissible to show fraud and false representations in securing '
ing.
Decision of Jndge In Absence of Jury is entitled to same presi
tion in its favor as verdict of jury.
Approved in Agricultural etc. Assn. v. Brewster, 61 Tei. 263
fusing to disturb verdict on conflicting testimony.
45 Tex. 400-10% LONG v. QABNETT.
Orant of New Trial to Same DefenftuitB vacates entire judgn
and it is not final and appealable.
NOTES ON TEXAS BEPOETS. 45 Tex. 402-41*
I Linn t. Arftmbould, 55 Tez. S24, holding jadgment
e new trial granted on one issue; Wootters v. Eauif-
197, 3 8. W. 46S, there can be no flnal judgment as to
, where verdict vacated as to others; Qulf etc. By. t.
. 19, 15 Am. at. Bep. 746, 10 S. W. 746, grant of new
ifendant vacates judgment aa to all; Hamilton v. Prea-
>6fl, 11 S. W. 549, reversal as to one party extends to
|ment ia entiretj; Hume v. Schintz, 16 Tex. Civ. 51S,
1070, 1071, Schintz v. Morria, 13 Tex. Civ. 586, 5S7, 35
nt of new trial on one issue vacates entire judgment,
nal JodguMiit can be rendered in a case, and it ia not
Butta T. Laffera, 1 Tex. Ap. Civ. 471, where all three
lault, caae should be disposed of aa to all. Sos notes,
6} 91 Am. St. Bep. 365.
«, HEILBBOHEB T. IHtUOLASa
ontxact wa< P^kblo in Confederate monej ia provable
Taylor v. Bland, 60 Tex. 31, applying rule in awarding
te.
niioso AttaClMd Fropertr waa delivered to third per-
tiff's consent, can claim credit by reconvention.
Farrar v. Talley, 68 Tex. 352, 4 8. W. 560, awarding
oods lost after wrongful attachment; Taylor v, Felder,
), 23 S. W. 482, where landlord levies on crops, tenant
ith losB due to landlord's negligence; McDonnell v.
Co., I Tex. Ap. Civ. 662, allowing reconvention of
breach of agency contract, in suit on account. See
lee. 401.
iltable to Allow Highest Price of article after default
lasare of damages ia valae at time agreed for delivery,
. Houston etc. By. v. Jackson, 62 Tex. 212, holding
for failure to transport freight; Adier v. Kiber, 5
27 B. W. 24, where buyer rescinds, seller can recover
reen contract price and value of goods; Houston etc.
It, 15 Tex. Civ. 153, 38 S. W. 837, awarding damages
contract to convey land; Anderson Elec. Co. v. Cle-
23 Tex. Civ. 337, 57 3. W. 580, on failure to complete
plant, damages are difference between contract prica
:osipleted plant; Blum v. Martindale, 1 Tex. Ap. Civ.
value of flour wrongfully attached, and interest,
4, EUSTON ▼. JASFEK.
atlc la MerelT Voidable, bnt while actually under legal
t is incompetent to contract.
First Nat. Bank v. McGinty, 29 Tex. Civ. 541, 69
action on lunatic's note, plaintiff may recover such
ideration as is shown to have been expended for necea-
enefit of his estate; Wolcott v. Connecticut Oen. Life
Uieh. 315, 100 N, W. 572, assignment of contract to
by lunatic is voidable only; Denni v. Elliott, 60 Tex.
.onaent decree against lunatic voidable and not eol-
kable; Pearson v. Cox, 71 Tex. 250, 10 Am. St. Bep,
45 Tex 415^2i NOTES ON TEXAS EEPOBTa
743, 9 8. W. 12G, bolting deed to hamestead attacked
inBanity merely voidable; Miaaouri etc. B, E. v. Brazzi
10 8. W. 406, holding insane person'a contract TOidab
when ratified; "Wichita Land etc. Co. t. Ward, 1 Tei
8. W. 131, Betting aside execution sate against unrepr
Herndon t. Vlck, 18 Tei. CSv. 586, 45 3. W. 853,
adjudged insane is presumed to continue bo; 'Willia
(Tei. Civ.), 59 8. W. 949, WilliamB v. Snpieha, 94 Te.
St. Kep. 864, 61 S. W. 116, both holding imbecile's p
ney voidable; Bedden v. Baker, 86 Ind. 193, holding i
judged lunatic void; Byer v. Berryman, 123 Ind. 452,
botding deed of nnadjadged lunatic voidable only on
sideration; Thorpe v, Hanacom, 64 Minn. 205, 06 N. W.
Water Supply Co. v. Boot, 56 Kan. 195, 42 Pac. 718
inaane perBon's contract valid after recovery of re
guardian not formally discharged ; Eilcy v. Carter, 7
Am. St. Bep. 44S, 25 Atl. 669, 10 L. B. A. 489, ho
aMignmont for creditors merely voidable; French etc. C
107 Wia, 643, 81 Am. St. Bep. 868, 83 N. W. 932, 51
holding unadjudged lunatic's deed valid agaiDst aubse
See notes, 15 Am. Dee. 364, 368; 71 Am. St. Bep. 430,
A. 490.
DiatingaiBhed in Grimes t. Sbaw, 2 Tez. Civ. 23,
holding sale by adjudged lunatic, pending appeal, vali
46 Tez. 416-417, OLEMENTS t, HEABNE.
XTulest There la Apparent Error, court will not com
generally assigned.
Approved in Byrnes v. Morris, S3 Tex. 220, Cameron '
64, Teiaa etc. By. v. Kirk, 63 Tei. 233, Handel v, B
Ap. Civ. 473, MeConnell v. Bruggerhoff, 1 Tei, Ap.
Carleton v. Roberts, 1 Posey U. C. 595, all refusing tc
too generally aBsigned; St. Louis etc. Co. v. Dobie (
B. W. 341, assignmect of error that court erred in
fendant'B motion for new trial is too general; First
William B. Trigg Co., lOS Va. 341, 56 8. E. 163, ap
exceptions to report of commisBioner.
Miscellaneous.— Pearson v. Coi, 71 Tex. 250, 9 8. W.
46 Tea. 417-424, GIBBONS 7. BBTJ-
Parol Agieemetit Between Parties to Acquire lAad,
certificate, and other labor and expense, is not contract
statute of frauds.
Approved in Anderson v. Powers, 59 Tex. 214, ]
agreement for interest in land to be recovered not i
Wardlow V. Miller, 69 Tez. 399, 6 S. W. 294, and Altday
66 Tex. 672, 1 S. W. 795, both holding parol partition o:
tenants in common valid; Eeed v, Howard, 7! Tex.
110, bolding contract for joint acquisition of public It
statute; Speyer v. Desjardins, 144 III. 648, 35 Am. Si
N. E. 2S5, holding parol agreement for partnersbip .
lands not witliin statute; Ikard v. Thompson, 81 Tex.
1021, holding parol contract to acquire and partitio
Hunt V. Elliott, 80 Ind. 257, 41 Am. Bep. 804, holdi
Kent that one joint mortgagee shall buy in for benel
NOTES ON TEXAS HEPORTS. 45 Tex. 424-129
lee notes, 67 Am. Dee. 089; 60 Am. Bep. 3S0; 102
; 16 L. B. A. 746.
n Sprsgue t. Haioea, 6S Tex. 217, 4 S. W. 372,
tract with attornej for part of laud, for removing
tute; Aiken v. Hale, 1 Poeej U. C. 322, holding
to eoDvej interest in land readj for patent witbis
id, in which another has locative interest, holds title
ampbell v. MeFadin, 71 Tex. 32, 9 S. W. 140, and
Tex, 248, both applying rule, and enforcing eonvey-
le to locator; Stafford v. Stafford, 96 Tex. 112, TO
purchaser at execution sale agreed with owner that
IB loan, owner could sue purchaser's devisee for his
sait to have trust declared; Brotberton v. Weath-
4, 11 8. W. 506, Franklin t. Piper, 5 Tex. Civ. 260,
Ibraith T. Howard, 11 Tex. Civ. 240, 32 8. W. 807,
illiams, 4S Tex. 92, all granting recovery of locative
Peterson v. Ward, S Tex. Civ. 212, 23 S. W. 639,
I assignee before issuance of patent. Bee note, 58
>bert8on v. Du Boae, 76 Tax. 10, 13 S. W. 303, hold-
•.( depends on lapse of time after cause of action
v. Stubblefield, 79 Tex. 5, 14 B. W. 1045, holding
tive interest barred after thirty years from issu-
ayne v. Boss, 10 Tex, Civ. 422, 30 S. W. 672, iimita-
1 against land purchaser's right to have deed cor-
a Campbell v
cused delay,
between joint owners is valid,
mes T. Patrick, 140 Fed. 409, following rale; Long
Civ. 373, 70 8. W. 589, upholding sufficiency of evi-
»ro] partition; Logan v. Robertson (Tex. Civ.), 83
ice that persons through whom defendants claimed
!, asserted compliance with locative contract, ob-
ind took possession thereunder and under contract,
if the contract and performance thereof.
BUllfUlS T. HUNT.
Try Title when defendant pleads "not guilty," and
rmer compels plaintiff to establish title, and latter
)oke V. Avery, 147 U. 3. 393, 13 8ttp. Ct. Bep. 347,
:?uslard v. Musgrove, 47 Tex. 220, both confining
le specially pleaded, and holding general denial
1 V. Yett, 00 Tex. 184, holding plaintiff can rebut
lie under general issue, without Bpe1^ia) plea; Hayes
ex. Civ. 90, 51 8. W. 281, and St. Louis etc. By. v.
[. 633, 5 S. W. 449, both confining parties to evi-
eciallj pleaded; Nobles t. Uagnolia Cattle Co., 69
45 Tex. 424-429 NOTES ON TEXAS BEPORTS.
G33
Tex. 436, 9 8. W. 449, plaintiff seeking recovery of land under cer-
tain lease cannot claim under subsequent lease; Hartz v. Owen (Tex.
Cir.), 27 S. W. 43, holding defendant's plea of not guilty in tres-
pass to try title does not affect his admissions of allegations of
petition; Samuel etc. Co. v. Hill (Tex. Civ.), 59 S. W. 320, restrict-
ing defendant to special defenses pleaded; Sheirburn v. Hunter, 3
Woods, 287, Fed. Cas. 12,744, defendant specially pleading title in
himself may show invalidity of plaintiff's title; Cavin v. Hill, 83 Tex
76, 18 S. W. 324, under general averments of petition in trespass
to try title, plaintiff cannot have special equitable relief; dissenting
opinion in Moore v. Snowball, 98 Tex. 31, 32, 34, 81 S. W. 12, 14, 66
L. B. A. 745, majority holding one suing to remove cloud and recover
land sold under execution for taxes, on ground that sale void be-
cause in bulk for property part of which was homestead, not barred
by adverse judgment from suing to set aside sheriff's deed for irregu-
larities in sale leading to inadequate price.
Distinguished in Morris v. Housley (Tex. Civ.), 34 S. W. 660, hold-
ing defendant by pleading specially for affirmative relief not pre-
vented from relying on general issue.
"Oooiund FnnuuBh" and "Conrad Furinash" are not idem sonans, and
contract with former is inadmissible to establish alleged contract
with latter.
Approved in Lemberg v. Cabaniss, 75 Tex. 229, 12 S. W. 844, hold-
ing similarity of names affords proof of identity; Selman v. Orr, 75
Tex. 530, 12 S. W. 697, holding "Lindsley" and "Lindsey" not idem
sonans; Burgamy v. State, 4 Tex. Ap. 574, holding "Abie" and "A vie"
not idem sonans; Milontree v. State, 30 Tex. Ap. 153, 16 S. W. 765,
holding "Seaffers" and "Seaforth" not idem sonans. See note, 100
Am. St. Bep. 341.
In TresiMUW to Try Title defendant cannot plead outstanding equity
unless his connection therewith be shown.
Approved in Witherspoon v. Olcott, 119 Fed. 177, 56 C. C. A. 171,
and Johnson v. Timmons, 50 Tex. 538, both reaffirming rule; Tapp
V. Corey, 64 Tex. 596, East v. Peden, 108 Ind. 96, 8 N. E. 724, and
Fitch V. Boyer, 51 Tex. 348, all disallowing such plea where no
connection shown; Philipowski v. Spencer, 63 Tex. 610, and Hollis
V. Dashiell, 52 Tex. 200, both holding holders of legal title cannot
be ejected by parties having no equity; GuUett v. O'Connor, 54 Tex.
416, holding possession of land under prior location good against
subsequent patentee; Lindsay v. Jaffray, 55 Tex. 634, awarding
land to grantee of patentee, against transferee of certificate not
showing connection with original vendee; Capt v. Stubbs, 68 Tex.
224, 4 S. W. 468, defendant cannot defeat recovery by showing fraud
in procurement of one of plaintiff's conveyances; Goode v. Jasper,
71 Tex. 52, 9 S. W. 134, husband's heirs can recover colonial land
from defendants, showing no connection with wife's equitable title;
Boone v. Miller, 73 Tex. 562, 11 S. W. 553, awarding land to heirs
of headright grantee against claimant unconnected with prior pro-
bate sale pleaded; Tarlton v. Kirkpatrick, 1 Tex. Civ. 114, 21 S. W.
409, prior location unconnected with defendant cannot avail against
patentee; Davidson v. Senior, 3 Tex. Civ. 550, 23 S. W. 25, prior con-
veyance unconnected with defendant cannot avail against patentee;
Donovan v. Ladner, 3 Tex. Civ. 206, 22 S. W. 62, and McKie v. Simp-
kins, 1 Tex. Ap. Civ. 115, both holding trespasser cannot set up equi*
«39 NOTES ON TEXAS EEP0ET8. 45 Tex. 429-453
table rights of third psrtiei; Wells v. Dyer, 45 Tei. 435, and Coi v.
Cock, 59 Tei. S25, both arKaeodo.
Distinpiished in Pool v, Foster (Tex. Civ.), 49 8. W. B24, holding
defendant maj defeat suit in trespass to try title by proving out-
■tanding legal title without connecting himself with it.
MieeellaneouB.— Cited in Harmon v. Callahan (Tex. Civ.), 35 8. W.
707, holding judgment will be reversed where petition insuffieieat to
support it, though petition not excepted to.
46 Tex. 429-432, COOK r. CAB80N.
SmvlTliig FartDer cannot Bind Estate of deceased partner for
debts incurred subsequent to his death.
Approved in Altgelt v. Sullivan (Tex. Civ.), 79 8. W. 339, torviv-
iog partner executing note for money borrowed in Qrm name is liable
though estate of deceased partner not liable; Carson v. Cock, 50 Tex.
3S6, subsequent appeal in same case. See notes, 6 Am. Dec. 575; SO
Am. Dec. GOO, 602.
46 Tax. 436-437, Z.TOH ▼. FASCHAZ^
StnrUTa Betnm Showing Service of Oltation "by eansing publica-
tion of writ" in newspaper is insufficient.
Approved in Chaffee v. Bryan, 1 Tex. Ap. Civ. 423, holding return
not showing when public ati on was made insuffleient.
4C Tax. 440-414. BBIDOES V. ODNDIFF.
Practice of Adding to Petition to try title a prayer for partition is
Approved in Texas liand Co. v. Turman, 53 Tex. 623, allowing
prayer for injunction in petition in trespass to try title; Stanley v.
Sehwalby, 162 U. 8. 272, 16 Sup. Ct. Bep. 761, 40 L. 965, discussiag
remedy of trespass to try title.
Evidence «f Helntalp is Inadmissible in Trespus to try title where
plaintiffs undertake to specifically set out title, and fail to aver heir-
Approved in Arthur v. Bidge, 40 Tex. Civ. 143, 89 S. W. 17, in
trespass to try title where plaintiff does not plead bis title epeciflcatly,
he may prove any character of title except by limitation.
Distinguished in Hale », Hensley (Tex. Civ.), 27 8, W. 1033, where
it is criticised as dicta.
16 Tax. 444r-463, HUDSON ▼. WILKINSON.
Tnut may be Ingrafted on written instrument by parol testimony.
Approved in Hawkins v. Willard (Tex. Civ.). 38 S. W. 366, reaf-
Srming rate; Lehman v. Chatham Uach. Co., 2S Tex. Civ. 229. 66
a. W. 797, instrument in form of deed absolute to homestead, duly
acknowledged by husband and wife, may be »hown by parol to be
mortgage and as sacb to be void; Hardie v. Campbell, 63 Tex. 296,
holding sale of homestead subject to defeasance on repayment a
mortgage; Black v. Caviness, 2 Tex. Civ. 121, 21 8. W. 638, apply-
ing rule where land was purchased in name of one with funda ot
both; Finch v. Trent, 3 Tex. Civ. 570, 22 S. W. 133, establishing trust
in land purchased in name of another; Williams v. Chambers {Tex.
Civ.), 26 S. W. 272, holding deed absolute on face may be shown
to be mortgage; Anglin v. Barlow (Tex. Civ.), 45 3. W, 827, holding
instrument apparently bill of sale may be shown by circumstances
to be chattel mortgage.
« Tei.45i-ie6 NOTES ON TEXAS EEP0ET9.
DiBtinguiBhecl in Gazlej v. Herring (Tax, Snp.), 17 S. W. IS
ing all otber circuastancea iosufficient to eetabliBh inatrum
mortgage in absence of debt to be secured.
In Determining Wlietlier Inatnuniant Is Sale or Soccfltg
existing debt, disparity between debt and propertj, and condil
parties must be considered.
Approved in Alstio v. Cundiff, S2 Tex. 462, applying nle
terminiDg whether instrumeDt is mortgage or conditional aate;
Saddlery etc. Co. v. Schoelkopf, 71 Tex. 420, 9 S. W. 338, 1
sale to creditor and em ploy meet of debtor not a mortgagej
V. Hadden, 85 Tei. 189, 19 8. W. 1089, holding mortgage
security and no legal title Teste in mortgagee; Thompson v.
3 Tgi. Ap. CtT. 48, holding conditional bill of sale to accur
ment of debt a mortgage; Armatrong v. Burkitt (Tex. Civ.),
W. 761, holding coDtract is mortgage regardleas of form wbei
purpose it to aecnre payment of money. See notes, 4 Am. SI
699; 94 Am. St. Bep. 236.
In Action for Oonveisint of Team and Wagon, it is impro
compute as datoagea value of uae for long period based on
Approved in Craddock v. Goodwin, 5* Tex. 587, awarding
of property aa damage for wrongful attachment; Bull t. Da'
6 Tex. Civ. 590, 25 S. W. 1048, awarding damages for va
horse converted; Flynn v. Lynch, 1 Tex. Ap. Civ. 433, spplyin|
Donahoo v. Scott (Tex. Civ.), 30 S. W. 385, holding person
for hilling cows may recover (or loas of milk from cowe wh
covering.
45 Tex. 451-463, COKNECTIODT ETC. INS. CO. v. BUDOU
Claimant must Frore Tliat Contract of Inauianco was com
by acceptance of application by compaDj, where policy ba
issued.
Approved in Aetna Life Ins. Co. v. Eocker, 39 Tex.
S. W. 28, fact that insured knew policy had arrived a
for him at bank, and that he authorized one paity to t
another bank and asked another to get policy from flrat 1
thing being done prior to death, does not show complt
where agreement was that policy was to be to bis
iieserve Loan etc. Ins. Co. v. Hockett, 35 Ind. Ap. fi
843, where policy provided that it should not take
insured in good health at time of delivery, and applica
on April 7th, by medical director, and on April 9th re.
ruled and application approved and policy if«ued as o
policy wna void, insured having died on April Stb; I
Woodmen of the World (Tenn.), 64 8. W. 39, refoaiog
life insurance where certificate not delivered to applicant
quired by by-laws.
46 Tex. 463-466, JOHNSON t. MOBBIS.
Administrator De Bonis Non may sue former administrate
sureties for property un administered.
Approved in Todd v. Willis, 66 Tex. 712, 1 S. W. 808, setting
sheriff's sale at suit of administrator de bonis non. Sea no
L. B. A. ti4, 65, 73.
rOTBS ON TEXAS BEP0BT3. 45 Tei. 489-485
IXDITT T. BOWTH.
« Bocord Do«B not Bhoir Serrlca or appearance,
idgment of due service is inaufficient; otherwise,
Be)er t. PhUlipa (Tei. Civ.), 22 S. W. 643, re-
ik V. Laufer (Tei. Civ.), 84 8. W. 278, iaauftnce
service on J. W. Snook vrill not support default
. W. Snook; McMickle v. Texarkaaa Nat. Bank,
eafflrming rale in ease labmitted an suggestion
' v. Eastbum, 57 Tex. 214, and i'itoh v. Boyer,
holding judgment not collaterally attackable for
Sefendsnt, not apparent; Wheeler v. Ahrenbpak,
ting judgment against minor without guardian;
Tei. Civ. 623, 21 8. W. 698, reversing Judgment
re service was irregular; Dallas etc. By, v. Day,
S, W. 539, applying role and reversing judgment;
Tex. Civ. 354, 23 S. W. J114, reverring judgment
minora not served; Jamea v. Watson, 2 Potey
service of citation without copy of petition In-
AT80N Y. HEWITT.
tUag on Admiaalfn, or against whom different
rate ai fraud, may plead estoppel.
ttuck v. McCartney, 1 Tei. Ap. Civ. 280, and
(Tei. Civ.), 42 S. W. 581, both reaffirming rule;
, 57 Tex. SSO, acquiescence in boundary inducing
land IB binding; Ecbols v. McKie, 60 Tex. 43,
t pleadable by parties not acting an statements;
son, 81 Tex. 351, 16 8. W. 1060, holding no es-
was not misled.
auburn v. Harris (Tex. Civ.), 29 8. W. 925, hold-
opped from asserting claim against grantee by
ODveyanee it ignorant of claim at time.
LD T. UNNE.
For Tltla may have speeiDe performance on ten-
iBlanee of principal and interest due.
Dec. 211.
Polk V. Kyser, 21 Tex. Civ. 680, 53 9. W. 90,
ring purchase money is not entitled to judgment
UNCOCK V. HBNDEBSON.
L £itat«, officer need not go upon land, bnt nee-l
a on back of writ.
im T. Teague, 46 Tex. 477, applying rule and
rdan v. Brit ton, 69 Tei. 203, 5 Am. St. Be p. 39,
iger V. Trammell, 66 Tex, 361, 1 S. W. 378, both
■ statute; Walton v. Cope, 3 Tei. Civ. 501, 22
attachment lien created on date of levy; Rogers
. Civ. 70, 24 8. W. 301, holding attachment lien
defendant's death pending suit; Schoonover v.
144, 82 N. W. 50G, holding attacbment lien ere-
icumbranc e-book; Thompson v. Baker, 141 U. Bt
45 Tex. 490-503 NOTES ON TEXAS EEPOBTS.
G42
655, 12 Sup. Gt. B6p. 91, 35 L. 890, upholding attachment sale against
purchaser from fraudulent grantee <)f land.
Where a Valid Levy of an Attachment on Land is properly re-
turned on the writ into the court from which it issued, it is notice
to third parties.
Approved on rehearing in McGregor v. White, 15 Tex. Civ. 303,.
39 S. W. 1026, record of subErequent deed puts purchaser upon in-
quiry as to prior fraud.
After Discharge in Bankruptcy, state courts .can enforce lien ac-
quired by attachment or otherwise.
Approved in Bassett v. Proetzel, 53 Tex. 580, applying rule and
enforcing judgment lien; Pinkard v. Willis, 24 Tex. Civ. 71, 57 S.
W. 893, holding sureties on claimant's bond bound, notwithstanding
bankruptcy discharge of principal.
45 Tex. 490-498, DAVIS v. TOUCHSTGNIS.
Statutory Provision Requiring Probate Order of Sale to describe
property to be sold is directory.
Approved in Collins v. Ball, 82 Tex. 266, 27 Am. St. Eep. 882,
17 S. W. 616, and Hurley v. Barnard, 48 Tex. 88, both holding
vague description in probate order of sale is curable by reference
to inventory; Bobertson v. Johnson, 57 Tex. 64, holding guardian'a
sale valid, although land was inaccurately described in order; Craw-
ford V. McDonald, 88 Tex. 634, 33 S. W. 329, apholding probate salo
where order referred to application for desc^ription; Hermann v.
Likens, 90 Tex. 452, 39 S. W. 283, holding description in administra-
tor's deed sufficient when aided by inventory; Edwards v. Gill, 5
Tex. Civ. 206, 23 S. W. 743, holding description identifying headright
certificate sufficient; Perry v. Blakey, 5 Tex. Civ. 335, 336, 23 S. W.
806, 807, holding sale not avoided by confirmation not identifying
land sold to each purchaser; Hendricks v. Huffmeyer, 15 Tex. Civ.
100, 38 S. W. 527, admitting probate order of sale to identify lands
intended to be described in prior partition decree; Fitzwilliama v..
Davie, 18 Tex. Civ. 85, 43 S. W. 842, upholding probate sale, al-
though notice did not properly describe land; Knowlton v. Dolan,
151 Ind. 86, 51 N. E. 100, court commissioner's misdescription of
land does not avoid sale; Hubermann v. Evans, 46 Neb. 791, 799,
65 N. W. 1047, 1050, upholding probate sale on general description
of land. See note, 67 Am. Dec. 698.
After Confirmation of Administrator's Sale to one purchaser court
can confirm it to another with consent of former.
Approved in Dodd v. Templeman, 76 Tex. 61, 13 S. W. 189, up-
holding deed to purchaser whose initials were misstated in return.
Orders of Probate Oourt^ though defective, showing that court
had jurisdiction to make them, are not on their face nullities, and
are admissible in evidence.
Approved in Kerliclu v. Keystone Land etc. Co. (Tex. Civ.), 21
S. W. 624, holding administration proceedings leading up to sale^
being regular and valid, cannot be collaterally attacked.
45 Tex. 498-503, FOBD v. McBBYDE.
Supreme Court will not Bererse for Deficiency in instructions where
additional ones were not asked, unless error or injury appears.
Approved in Taylor v. Callaway, 7 Tex. Civ. 470, 27 8. W. 938^
Myer v. Pruin (Tex. Sup.), 16 S. W. 870, and Texas etc. By. v. Gay^
643 NOTES ON TEXAS EEPORTS. 43 Tex. 503-51&
6S Tex. 609, £6 B. W. 01S, S5 L. B. A. 52, all reaffirming mle whero
additional iustroctions were not asked; AtebiBon etc, By. v. Click,
5 Tex. CiT. 226, 23 8. W. 634, reTeiaing for instructioii on matter
not in iime, not excepted to.
Partner la Bonnd by Othor Faitaer'i Loan of Money for buaineu
Qie, on contract for share of profits instead of interest.
Approved in Mann v. Clapp, 1 Tax, Ap, CIt. 250, bolding all
partners liabla for goods purchased bjr one.
a Tax. SOS, 609, McBEE T. BBOWN.
Defanlt jndgm«nt against "McB«b" cannot be anatained on cita>
tion by publication to "UcEee."
Approved in Lemberg v, Cabanias, 75 Tei. £29, 12 8. W. 844,
holding similarity of names affords proof of identity; Belman v.
Orr, 75 Tex. 530, 12 8. W. 697, holding "Eindsley" and "Liodeey"
not idem sonans; Freeman t. Hawkins, 77 Tex. 500, 19 Am. St. Rep.
771, 14 8. W. 365, holding citation of "Bobinaon" will not support
judgment against 'Treeman"; Burgamy v. State, 4 Tex. Ap. 574,
liolding "Abie" and "Avie" not idem sonans; Milontree v. Stat", 30
Tbi, Ap. 153, 16 B, W. 765, holding "Seaffers" and "Seaforth" not
idem aonaus; Pena v. Pena (Tex. Ciy.), 43 8. W. 1023, holding de-
fanlt jndgment erroneous where defendant not cited to answer
amended petition, and had not waived citation; Detroit v. Detroit
ete. By., 64 Fed. 9, holding order pro confesso void against cod-
resident mianamed in publication of process. See note, 100 Am. St.
Bep. 3S3.
Wbars Amendment States New Oanee of AcUm, default jndgment
cannot be taken, by reason of asrvice of original petition.
Approved in Stewart r, Anderson, 70 Tex. 598, 8 8. W. 300, hold-
ing notice on one eauH of action will not support judgment on
another,
Oamialiee from State Court, subsequent to federal suit against
him, cannot protect himself by pleading garnishment.
Approved in Burke v. Hance, 76 Tex. 80, IS Am. Bt. Bap. 31, 13
S. W. 164, pendency of auit by creditor against debtor ia defense
to garnishment in another conrt; Herlow v. Orman, 3 N. M. 351,
6 Pac. 937, debtor cannot plead garnishment in defense of suit by
creditor. Bee notes, 82 Am. St. Bep. 589, 594; 42 h. B. A. 450, 455.
PartDersMp Ciedltora eannot gsmiahee individual partner.
Approved in Baley v. Smith (Tex. Civ.), 73 8. W. 56, claim of
partnership cannot be garnisheed for individual debt of partner.
45 Tex. 509-519, BTXEB V. JOHNSON.
In Trespass to Try Tltl^ evidence of prior foreclosure of vendor's
lien ia inadmisaible against defendant in poasewion not a party
thereto.
Distingoirted in Frank v. Frank (Tex. Civ.), 25 B. W. 819, reaf-
frming rule; Carter v. Attoway, 46 Tex. Ill, holding foreclosure
decree and sale admissible where pleadings do not admit priority
of defendant's purchase..
As Agalnn Pnicluuer blvlng Notlc^ sale under foreclosnre against
original vendee alone will not pass title.
Approved in Wright v. Wootars, 46 Tex. 382, SebinoltB v. Qarey,
49 Tex. 58, Miller v. Rogers, 49 Tex. 413, 418, King v. Brown, 80
Tex. 278, 16 S. W. 39, Bradford v. Knowlca, 86 Tex. 608, Z5 8. W.
iS Tei. 519-532 NOTES OK TEXAS BEPOBTB.
1118, and Sample r. Irwin, 4S Tax. 574, all boIdiDg po
mortgagor not affected by forecloaure, when not a part
was notice of claim; DelsBpioo t. Campbell, 45 Tex. (
eloBore of mortgaga Becnring two noten, both holders a
parties; Waldorff t. Scott, 46 Tex. 5, in action hy si
employer and other lienholders are Qeces^cy parties; C
toway, 40 Tex. 110, in auit to enforce vendor's lien, Bub
dee in poBSeBsion ia necessary party; Turner v. Phelps,
junior mortgagee not a party is not precluded by fi
vendor's lieu; Wright v. LancnsteT, 48 Tex. 252, ho!
purchasers from vendee not bound by foreclosure of t
St. Louis etc. By. v. Whitaker, 68 Tex. 634, 5 S. W, 4
Bankin, 50 Tex. £87, both holding prior execntion pureh.
not a party, not coucluded by forsclosure; McAfee v.
Pose J V. C. 69, holding execution purchaser necessa:
foreclosure of vendor's lien; Langdon v. McCanlees, 2
664, applying mle; Moore v. Ingram, 2 Posey U. C. i
closure by holder of one purchase money note, balder
necessary party; Nix v. Cardmell, 2 Posey XJ. C. 26S, oi
all Bubaequent eneumbrancerB are necessary parties; Loo:
son (Tex. Civ.), 25 B. W. 477, holding person claiming i
through judgment against maker and transferee «f no
chaae price of land proper party to suit thereon. Bee i
Dec. 512.
Diatinguished in Wood v. Loughmiller, 48 Tex. 205, oi
of vendor's lien defendant cannot make his vendee a p
plaintiff's objection.
Miscellaneous.— Williamson v, Wright, 1 Posey U. C. '
the point that the giving of a promissory note beti
to a warranty deed reciting payment of consideration di
presumption that it is for purchase money, and retains a
46 Tex. 519-522, ZOBN T. TABVEK.
Land OixiTered by OnraovB Tltla to Wif« is presnmet
property, and is subject to execution against husband.
Approved in Veramendi v. Bute bins, 43 Tex. 551, h
erty community whether in name of husband or wife;
Wtisa, 53 Tex. 263, applying rule; Braden v. Gose, 57
interest on loan of wife's money is community propel
Tarver, 57 Tei. 389, applying rule on subsequent apps
. Godwin, 61 Tex. 334, pre-emption claim ia community ;
though mortgagee obtains patent and conveys to Wife;
Cole, 65 Tex. 400, wife's separate interest is protected
purchased partly with her separate estate. See notes, 1
112; 86 Am. Deo. 637; 96 Am. Dec. 423; 126 Am. St. B-
4S Tex. 522-532, GBAOE V. WAI>E.
Lien at Judgment Creditor levying on land withoi
superior to unrecorded deed of vendee of defendant, ai
purchaser with notice takes title.
Approved in HickB v. Pogue, 33 Tex. Civ. 337, 78
and Murphy v. Smith (Tex. Civ.), 50 S. W. 1042, b.
ing rule; Eanney v, Hogan, 1 Posey U. C. 256, and
Chapman, 45 Tex. 564, both applying rule and award
NOTES ON TEXAS BEPOSXa 45 Tex. S22-532
iition purehaser; Grimes v. HobBon, 40 Tex. 419, Cavanaugh
eteraon, 47 Tex. 207, Linn v, Le Compte, 47 Tex, 442, and Bor-
r. KeRae, 44 Tex. 401, all awarding land to execution pur-
!t with notice; Catlin v. Benoatt, 47 Tei. 170, tolding nure-
3d title bonds void aa to lien ertditora without notice; Wallace
impbell, 54 Tex. 89, 90, awarding cominunit;' land to judgment
itor of hnaband, although previouslj eoavejed to wife; Mc-
I T. Sultenfnss, 81 Tex. 328, creditor witboat notice of prior
corded deed aiaj foreeloae tmat deed; Bjan t. Bjan, 61 Tei.
maintaining attachment of comTnunitjr property bj wife againat
and for separate debt; Binlcer t. Comparet, 62 Tex. 476, mort-
e of property bas prior right over vendor uoder unrecorded
itional sale; Keller v. Smalley, 63 Tex. 519, liea creditor ma;
rce lien after debtor's aaaignment for benefit, of creditors;
ia T. Johnson, 68 Tex. 450, 4 S. W. 645, awarding land to ex3-
in pnTchaaer against prior nnrecorded transfer; Wright v. Las-
, 71 Tex. 644, 10 a. W. 297, awarding land to execntion purchaser
Hat prior unrecorded title bond; Blum t. Schwartz (Tex. Sup.),
. W. 55, holding execution purchaser unaffected with notice of
tor without notice at time of levying execution; Stephens t.
ing (Tex. Sup.), 17 S. W. 39, holding puiehaaer unaSeeted
notice of creditor without notice when lieu was fixed; Haw-
V. Geer (Tex. Sup.), 17 S. W. 916, holding resulting trust
Bctual against pnrchanr for value without notice; Blum v.
rartz (Tex. Sup.), 20 8. W. 56, holding creditor protected by
g lien by levying execution without notice of prior conveyance;
ell V. NaU (Tex. Civ.), 23 S. W. 901, holding deed from huB-
to wife void as to subsequent purchasers or creditors unless
ded; Le Doux v. Johnson (Tex, Civ.), 23 8. W. 905, holding
itiffs in attachment take superior title if prior deed unre-
ad when attachment levied; Peterson v. UcCauley (Tex. Civ.),
I. W. 8iO, holding peraon with notice takes good title from
liaser without notice of prior unrecorded deed; L. t H. Blum
I Co. V. Harbin (Tex. Civ.), 33 S. W. lo3, holding person claiming
r attachment levied before recordation of prior deed miiat prove
: of notice of deed when levying attachment; Barcett v. Squyrcs
. Civ.), 52 S. W. 614, holding notice to creditor, actual or con-
tive at time of fixing lien is fatal to right; Centra] City Trust
r. Waco Bldg. Assn., 95 Tex. 51. 64 8. W. 998, 55 L. B. A. 861.
ition purchaser acquires title against holder of prior unrecorded
; Von Stein v. Trexler, 5 Tex. Civ. 303, 23 8. W. 1049, assignee
beneBt of creditors takes title against prior unrecorded deed;
irtson T. MeClay, 19 Tex. Civ. 515, 48 S. W. 36, and Thomson
tiackelford, 6 Tex. Civ. 126, 24 8. W. 984, both holding attach-
. purchaser takes title against prior unrecorded deed; Stovall v.
1, 10 Tex. Civ. 170, 30 S. W. 68, judgment creditor without
:e can recover land against prior unrecorded deed; Wiggins v.
gue, 15 Tex. Civ. 596, 40 S. W. 1021, attachment purchaser not
'ding deed is subsequent to later attacher without notice; Tur-
p. Cochran (Tex. Civ,), 63 8. W. 153, claimant under prior un-
■ded deed must show creditors' notice tberenf to vacate fore-
ire; McAfee V. Wbeelis, 1 Posey U. C. 72, awarding land to
ution purehaaer against holder of vendor's lien; Daggs v. Ewell,
oods, 348, Fed. Cas. 3537. bona fide mortgagee takes priority
earlier nnrecorded transfer; Meek v. Skeen, 60 Fed. 3SS, judg-
45 Tex. 522-532 NOTES ON TEXAS EEPORTS.
646
ment creditor purchasing on execution takes priority over earlier
unrecorded deed; Stevenson v. Texas Ey., 105 U. S. 707, 26 L. 1216,
execution purchaser takes land free from prior unrecorded mortgage;
Pugh v. Highley, 152 Ind. 258, 71 Am. St. Eep. 332, 53 N. E. 173,
44 L. E. A. 392, judgment creditor purchaser at execution sale takes
title clear of prior secret equities. See notes, 82 Am. Bee. 613; 86
A.m. Dec. 669, 670; 38 L. E. A. 249; 21 L. E. A. 35.
Distinguished in Senter v. Iiambeth, 59 Tex. 262, 264, 265, hold-
ing execution purchaser with notice subject to vendor's lien; Cal-
vert V. Eoche, 59 Tex. 464, where debtor holds legal title in trust,
purchaser at sheriff's sale with notice of rights of the cestui que
trust acquires no title as against him; Bradley v. Love, 60 Tex.
478, administrator's sale to pay husband's debts cannot devest wife's
rights in property; Bonner v. Grigsby, 84 Tex. 332, 31 Am. St. Eep.
50, 19 S. W. 512, judgment creditor taking deed from defendant
is subject to older transfer; Parker v. Fogarty, 4 Tex. Civ. 620, 23
S. W. 702, judgment creditor of husband, having notice, cannot levy
on wife's separate property; Hamilton etc. Shoe Co. v. Lewis, 7 Tex.
Civ. 513, 28 S. W. 103, assignee of note given for land has vendor's
lien prior to attachment against vendor; Moore v. Masterson, 19
Tex. Civ. 310, 46 S. W. 855, giving chattel mortgage priority over
attaching creditors with notice; Schneider v. Fowler, 1 Tex. Ap. Civ.
493, levy on wife's personalty without notice, for husband's debt,
creates no lien; Shepard v. Hunsacker, 1 Posey U. C. 583, execution
sale against debtor holding only quitclaim deed passes no title against
prior unrecorded deed of debtor's grantor; Wallace v. Crow (Tex.
Sup.), 1 S. W. 374, purchaser under quitclaim deed takes with notice.
Statute Declaring Unrecorded Gonveyances Void as to creditors ex-
tends only to lien creditors.
Approved in Overstreet v. Manning, 67 Tex. 663, 4 S. W. 251,
holding creditor without lien on chattels subsequent to unrecorded
mortgage; Bicocchi v. Casey etc. Co., 91 Tex. 270, 66 Am. St. Eep.
888, 42 S. W. 968, creditors of trustee acquire no rights in property
against beneficiary; Eussell v. Nail, 2 Tex. Civ. 64, 23 S. W. 901,
judgment creditor purchasing on execution takes precedence over
prior unrecorded deed; Parlin v. Hsirrell, 8 Tex. Civ. 373, 27 S. W.
1086, applying rule to statute against unrecorded conditional sales;
Wiggins V. Sprague, 15 Tex. Civ. 597, 40 S. W. 1022, subsequent
attacher takes priority over earlier unrecorded attachment sale;
Brown v. Chancellor, 61 Tex. 444, arguendo. See note, 58 Am. Dec.
528.
Equitable Estates are not within contemplation of registration
laws and are not affected by judgment liens.
Approved in Long v. Fields, 31 Tex. Civ. 243, 71 S. W. 776, fol-
lowing rule; Parker v. Coop, 60 Tex. 116, 117, applying rule to
resulting trust; McKamey v. Thorp, 61 Tex. 651, holding execution
purchaser acquires no title against wife's equity in land; Willis
V. Heath (Tex. Sup.), 18 S. W. 803, holding execution purchaser of
mortgaged property acquires only such title as remained in debtor;
Eankin v. Bell, 85 Tex. 38, 19 S. W. 878, execution sale of cattle
as property of brand owner passes no title against real owner; John
B. Hood Camp v. De Cordova (Tex. Sup.), 47 S. W. 524, holding pur-
chaser under execution against trustee with notice of trust takes
no title; Caldwell v. Bryan, 20 Tex. Civ. 171, 49 S. W. 242, and
John B. Hood Camp v. De Cordova, 92 Tex. 206, 47 S. W. 524, both
647 NOTES ON TEXAS EEPOBTS. 45 Tei. 532-550
holdinK ezecutioD sale againgt trustee passes do title to purchaEor
nith notice; SiDsheimer v. Eahn, fl Tex. Civ. 147, 24 8. W. 534, as
BgaiiiBt attaebing creditor of husband, wife can prove Unit separate
estate. See note, S2 Am. Dee. 612.
PnrdiHer at SherllTB Sala maj elaim protection under the statute
as a purchaser even wbeu the judgnteat creditor himself is not, as
creditor, within its protection, and vice versa.
Approved in Taylor v. Harrison, 47 Tex. 460, 26 Am. Be p. 308,
bona fide purchase may be made from an heir or from an adminis-
trator.
45 Tax. 632-680, WAI.EEB T. hAWLEBk
Wlme Bona Flda Holder of Real Estate discharges encumbrance,
without notice of infitmitj in tiis title, be can reoovet amount pcld
from true owner.
Approved in French v. Qreuct, 67 Tex. 2S1, applying rule to pur-
chaser at void sale foreclosing judgment lien; Hayes r. Blanton,
67 Tex. 240, 3 B. W. 41, applying rule ta purchaser at void execu-
tor's sale; Galveston etc. By. v. Blankeney, 73 Tex. 181, 11 S. W.
174, applying rule where railroad condemned land and dtmharged
liens thereon; Halsey v. Jones, 86 Tex. 491, 25 S, W. 697, apply-
ing rule to void probate sale to administrator; Terry v. <Jiitler, 4
Tex. Civ. 576, 23 8. W. 541, applying role to purchaser at void
foreclosure of vendor's lien; Stephenaou r. Carsalis, 11 Tex. Civ.
171, 173, 33 8. W. 387, 388, applying rule to purchaBcr at void ad-
ministrator's sale of homestead; Ker v. Paschal, 1 Posey TJ. C. 707,
purchaser from an attorney of bis rights to land acquired in pay-
ment of legal services therein is subrogated in every respect thereto;
Hanrick v. Gurley, 83 Tex. 473, 54 8. W. 354, arguendo.
46 Tax. 639-650, LAinSA v. OBEBT.
To Becorer VindlctlTO DamaKoa in suit for malicious prosecution,
it must appear that the prosecution was without probable cause, with
malicious intent, and that it is at an end.
Approved in Lewton v. Hower, 35 F)a. 61, 16 So. 617, applying rale;
Lay V. Blankenahip, 2 Poaey U. C. 274, arguendo. See note, 26 Am.
at. Bep. 141.
Probable Cause is Beaaonable Oronnd of Sns^ctMi, supported by
eirenmstances warranting eaatious man in believing person guilty.
Approved in McManus v. Wailis, 52 Tex. 547, plaintiff in action
for malicious prosecution must show want of probable cause; Gulf
etc. By. V. Jamas, 78 Tex. 22, 15 Am. St. Bep. 750, 10 3. W. 748,
question of probable cause must be decided b^ jury.
On MallciouB Prosecntloii, what facts amount to probable cause is
question of law; whether they exist is question of fact.
Approved in Shannon v. Jones, 76 Tex. 145, 13 8, W. 478, applying
rule and awarding damages for malicious prosecution.
Attorney^ Ttm are Beaaonahle only where part of damages re-
sulting as natural and proximate consequeiice of act complained of.
Approved in Salado College v. Davis, 47 Tex. 136, refusing at-
torney's fees iu action for overflowing lands; Yarborough v. Weaver,
6 Tex. Civ. 219, 25 8. W. 469, disallowing attorney's fees on claim
for wrongful attachment; Sherrick v. Wyland, 14 Tex. Civ. 300, 37
S. W. 345, disallowing attorney's fees paid in discharging encum-
brance on laud sold as free; Webb v. Harris, 1 Tex. Ap. Civ. 583,
45 Tei. 550-553 NOTES ON TEXAS EEPORTS.
AnderEOD v. Larremoie, 1 Tex. Ap. Civ. 532, both disallowi
totney'a fees in aetion sgainat aberiff for wrongful aelznre; '.
V. Price, 2 Posej IT. C. 120, disallowing attorney's fees on p
■hip accounting; Dumett v. Wbalej, 2 Pase<r U. C. 489, disal
ettomef'B fees in action for wrangful seq ue 9 1 ration; Stra
Duodon (Tei. Civ,), 27 8. W. 503, holding attorney's fees i
coverable in action for damages for attachment unless attat
plaintiffs knew of attoriie7'B malice; Kolka v. Jones, 6 N. I
68 Am. 8t. Bep. 628, 71 N. W, 584, allowing recovery of att(
feea in action for malicious prosecution. See notes, 8 Am, 31
158, 20 Am. St. Bep. 163; 93 Am. St, Bep. 466.
Threats of OtvU and Orimlnal Frosecntlon for embeiilemei
importing unusual or illegal measures, da not conatitnte duresi
Approved in Hines v. Bd. of ComuiiasionerB, 93 Ind. 2T1, li
threats of criminal prosecntion not duress of county auditor
warrants; Wolf v. Troiell, 94 Mich. 578, 54 N, W. 384, holdinf
given in settlement of embezzlement valid; Sanford v, Sorni
26 Neb. 306, 41 N. W. 1105, holding mortgage given to secur
due to embezzlement valid; Wolff v, Bluhm, 95 Wis. 259, 60 A
Bep, 116, 70 N. W. 74, npholding validity of notes given
threatened prosecution for sednction; Oregor v, Hyde, 62 Pei
refusing to cancel deed made under threat of lawful criminal
cution. See note, 26 L. B. A. 55.
Distinguished in Oorringe t, Beed, 23 Utah, 129, 90 Am. St
692, 63 Pac. 904, and Burton v. UcMiltan, 52 Fla, 476, 120 A
Bep, 220, 4S So. 851, S L. B. A. (n. s.) 991, both upholding ri
married woman to set aside deed of separate property made 1
nnder threats of prosecution of husband for fdony; Uorae v.
worth, 155 Mass. 251, 29 N, E. 528, holding contract executed tl
threats of criminal proaecution not enforceable; Hargrea'
Korcek, 44 Neb. 670, 62 N. W. 1089, canceling mortgage proeui
tbreata of criminal proaecution.
Affidavit for Oliange Of VMiDe is inadmissible in evidence,
tion for slander and malicious proaecution.
Approved in Tyson v. State, 14 Tex. Ap. 391, reversing f
mission of affidavits and order for change of venue.
Miscellaneous. — Landa v. Obert, 78 Tex. 41, 50, 14 S. W. 89
subsequent appeal of same case,
46 Tex. 560-6G3, PUOSET T. JOHNSON.
In Action Against Minors, guardians, if existing, should bs
parties, or special gnardians be appointed.
Approved in Hawkins v. Forrest, 1 Posey U, C, 173, Smith \
den, 1 Poaey U. C. 365, and Bond v. Dillard, SO Tex. 309, all re\
judgment where minors were not represented by gnardian; Jc
Parker, 67 Tex. 78, 3 8. W. 224, minor may contest settlem
guardian's accounts.
Distinguished in Brooke v. Clark, 57 Tax, 110, upholding jud
for minor repreaented by next friend.
Since by Uanlaga Surviving Widow's Control over eomi
property ceases, judgment against her in suit commenced befo
rendered after marriage is no basis for execution again»t e
property.
Approved in Wingfield v. Hackney, 95 Tex. 495, 68 S. V
following rule.
C49 NOTES ON TEXAS REP0BT8. 15 Tex. 553-567
45 Tax. 653-566, EVAN'S T. BELI..
Qoaiantor of CoUecUon of Note is not liable on mtie failaro of
debtor to pa^, but due diligence to collet^t it mast be ghown.
Approved in Texas City Imp; Co. v. Griswold (Tex. Cis.), 41 S.
W. 513, rcaffirraing mie; UorriBon v. LazaToa, 90 Tez. 4S, 39 S.
W. 4SS, holding bomestead not liable uotil lien on remainder of tract
is exhausted; Pierce v. Merrill, 12S Cal. 471, 79 Am. St. Bep. 61, (11
Pac. 66, applying rule in suit on guaranty; Shepard v. Pheara, 1 Tex. '
Ap. Civ. 67, holding goarantor of collection not liable without proof
of exhaustion of prineipal'a means. See Dote, 64 Am. 6t. Bep. 393,
395, 402.
Distinguished in Jobnaon t. Nasworthy, 4 Tez. Ap. Cir. 167, 16
8. W. 759, holding warrantor of amount of rent of premisea Bold not
a guarantor.
1 \0, BEARS T. SEABS.
Lbandcms Euaband WiUiont Cause cannot claim home-
I t his death.
Duke V. Reed, 64 Tex. 713, Cockrell v. Cnrtia, 83 Tex.
437, Schwarzhoff t. Neeker, 1 Posey IT. C. 329, and
] Dlland, 45 Tez. .680, all following rule; tniman r. Ab-
1 111, 67 Pac. 469, where man who lived in state thirty
I rein leaving homestead, his surviving wife who had
never been in state or lived with him during that time cannot have
homeetead set apart to her; Hall v. Fields, 81 Tex. 557, 17 S. W. 84,
holding divorced wife not entitled to homestead; Parks v. Hartford
Ins. Co., 100 Ua. 3S0, 12 8. W. 1060, arguendo. See notes, 96 Am.
Dee. 414; S L. B. A. (n. s.) 566.
Distinguished in Linares v. Linares (Tex. Civ.), 51 S. W. SIO,
holding wife forced to leave husband by Ms erueity entitled to home-
stead ODt of his estate; Linares v. Linares, 93 Tex. S7, 53 S. W. 580,
holding wife separating from husband for sufficient cause doea not lose
homestead rights.
Disapproved in Duffy v. Harris, 65 Ark. 253, 67 Am. St. Bep, 926,
45 S. W. 545, 40 L. B. A. 750, holding wife deaerting hosband does
not forfeit homestead rights.
Where Appellant had Boieflt of Erldeiica excluded, mling com-
plained of will not be revised.
Approved in Pierrepont v. Sasaee, 1 Tex. Ap. Civ. 752, applying
46 Tax. 660-6OT. SOtPSON ▼. CHAPMAN.
Ii«T7 of Exflcntlon Fixes Lien on I«iid and purchaser takes title
against grantee nnder unrecorded conveyance, who took possession
between levy and sale.
Approved in Wright v. Lassiter, 71 Tex. 644, 10 3. W. 297, hold-
inK execution sale passes title although part not in dispute was occu-
pied by claimant; Banney v. Hogan, 1 Posey U. C. 2S6, awarding
land to execution purchaser against prior deed recorded between
levy and sale; Blum v. Schwartz (Tex. Sup.), 20 S. W. 56, holding
unrecorded deed subordinate to right of creditor fixing Hen without
notice thereof. See note, 83 Am. Dec. 613.
I>Ui4 OertUcatfl, Until Located, is personalty and is assignable by
parol; but after location it attaches to land and title passes only by
writing, proved and recorded.
45 Tex. 567-574 NOTES ON TEXAS BEPOBTS.
650
Approved in Renick v. Dawson, 55 Tex. 107, 108, 110, holding
certificate merged in land hj its location, and assignee entitled to
land; Wimberly v. Pabst, 55 Tex. 591, holding certificate becomes
realty after merger in patent; Porter v. Burnett, 60 Tex. 222, hold-
ing unlocated certificate personalty; Hearne v. Gillett, 62 Tex. 25,
holding right to certificate passes with transfer of all title to land;
Shifflet V. Morelle, 68 Tex. 390, 4 S. W. 846, holding registration
act of 1836 not applicable to conveyance of right to land from state;
Lewis v% Johnson, 68 Tex. 450, 4 S. W. 645, holding conveyance of
located certificate must be recorded; Adams v. Houston etc. By.,
70 Tex. 275, 7 S. W. 740, certificate once located cannot be relocated
on other land; Hume v. Ware, 87 Tex. 383, 28 S. W. 936, and
Thompson v. Langdon, 87 Tex. 259, 28 S. W. 935, both holding sale
of located certificate is equitable transfer of land; Edwards v. Gill,
5 Tex. Civ. 206, 23 S. W. 743, holding title to land passes on sale
of certificate; Culmell v. Burroum, 13 Tex. Civ. 461, 35 S. W. 943,
holding transfer of unlocated land warrant conveyg equitable title;
West V. Loeb, 16 Tex. Civ. 401, 402, 42 S. W. 613, execution sale of
partly located headright certificate passes title against prior unre-
corded transfer of unlocated interest; Baker v. De Zavalla, 1 Posey
U. C 638, probate sale of certificate carries location; San tana etc.
Land Co. v. Pendleton, 81 Fed. 790, holding administrator's sale of
headright certificate issued to heirs passes title; dissenting opinion
in Jones v. Lee, 86 Tex. 41, 22 S. W. 394, majority holding reloca-
tion of certificate void.
Distinguished in Baldwin v. Boberts, 13 Tex. Civ. 572, 36 S. W.
792, where there was already sui&cient evidence to establish the
transfer by presumption, admission of certified copy from records
of other county than where land is located is harmless error.
Miscellaneous. — Cited in Le Doux v. Johnson (Tex. Civ.), 23 S.
W. 905, holding where tenant assigns lease and assignee then as-
signa to attaching officers, subsequent attaching creditors and pur-
chasers of leasehold charged with notice of character of officer's
possession.
46 Tex. 567-574, SAMPLE ▼. IBWIK.
One Signing Instnunent as agent of party is incompetent to take
acknowledgments thereto.
Approved in Bothschild v. Dougher, 85 Tex. 333, 34 Am. St. Bep.
812, 20 S. W. 142, 16 L. B. A. 719, and Morton v. Lowell, 56 Tex.
647, both holding acknowledgment taken by trustee under trust
deed vitiates record; Baxter v. Howell, 7 Tex. Civ. 201, 26 S. W. 454.
rejecting mortgage acknowledged before notary who was partner in
firm secured thereby; Miles v. Kelley, 16 Tex. Civ. 153, 40 S. W.
602, manager of building association cannot take acknowledgment of
mortgage to it; Bexar Bldg. etc. Assn. v. Heady (Tex. Civ.), 57 S.
W. 583, and Bexar etc. Assn. v. Heady, 21 Tex' Civ. 156, 57 S. W.
583, both affirming rule; Kothe v. Krag-Beynolds Co., 20 Ind. Ap.
301, 50 N. E. 597, holding acknowledgment before notary who was
officer and stockholder of mortgagee corporation void. See notes,
95 Am. Dec. 378; 56 Am. St. Bep. 802; 33 L. B. A. 337.
Distinguished in Titus v. Johnson, 50 Tex. 239, holding record
of acknowledged instrument not attackable by showing pfficer's
interest in land; Kitch v. Holley, 77 Tex. 222, 14 S. W. 34, notary
who is husband's attorney may take wife's acknowledgment; Hor-
651 NOTES 01
bach T. Tjitell, 4S Neb. 523,
ing acknowledgment before u
nnsntlientlciited Deed Ha
proved by otheri without sbi
Approved io El well t. Un
J3 8. W. 655, witneBsee to i
proTs it; Morrow t. State, 2!
eecondarj evidence without
ing witness. See note, 35 L.
Purcbuer from Mwrtgagot
% party thereto.
Approved in Williamaon v.
equity of redemptioa are oi
ties; Langdon v. M'CanlesB, 2
vendee i» necesaary party to
46 Tax. 674-685, FEBaTTSON
Money Jndgmant Agalnet
trust deed to part of homest
Cited in 55 Am. Dec. GD3, i
Tnuufar by Huabond and ^
gives vendee right to partitii
Cited in Quinn v. Quian,
value of t5,000 may be allot
valued at $7,500, thongb or
DeceBBSry to reach sum allov
be divided. See notes, 63 A
L. B. A. {n. s.) 797.
45 Tex. 685-588, FBIEDUUI
AntHority to Draw BlU m
agent confirmed by principal.
Approved in Mills v. Berl
Gregor v. Hudson (Tex. Civ.
.Pacific Express Co. v. Black,
of package to railroad emplo;
ages ia binding on express c
Civ.), 38 8. W. 235, holding
in conducting business ant hoi
porposea.
46 Tax. 688-602, NEWIiAND
Wife AbaadMilug Hnaband
rights at his deatb, but is ei
band's separate property.
Approved in Whetstone v.
to divorced wife of commui
stead; Bouth v. Bouth, 57 '
ia husband's eetate to wife
lioff v. Necker, 1 Posey U. '
107, 18 8. W. 437, both appl
homestead; Morgan v. Morga:
marrying man after void div
quired by their joint efforts
a Tex. 592-615 NOTES ON TEXAS BEPOBTa
Pac. 4S9, when mao wbo lived in state tbirtf jeart died
leaving bomeBtead, widow who had never been in state or liv(
him during that time cannot have bomeBtead set apart to he
notes, 8 L. E. A. (a. b.) 566; i L. R. A. (n. a.) 394.
In Action for DlstrlbiitiTe Fortloa of Eatat*, all distriboti
ceceBSarj parties.
Approved in Guilford t. Love, 49 Tex. 733, holding beirs a
tributeea necessary partite to partition of estate; Ellis v. E
(Tex. Civ.), 24 S. W. 5ST, holding widow owning life estate ne
party to suit for partition of estate.
46 Tex. 592-699, FBEEMAN v. KUEOUI^K.
Bnit Arising Out «f Fraodnlant Act, or to sat aside frai
transaction, maj be brought in county where fraud was com
Approved in Lindsey v. State, 27 Tex. Civ. S42, 66 S. 'V
action to set aside fraudulent transfer of judgment may be I
in county where transfer obtained though defendant rest
another county; Baines v. Uensing, 75 Tex. 203, 12 S. W. 91
missing suit on eontraet brought outside domicile, without s
fraud; Weeks v, Bnnset Brick etc. Co., 22 Tex. Civ. 563, 56
247, and McLaughlin v. Shannon, 3 Tex. Civ. 138, 22 S. ^
both holding that to bring suit outside domicile real fiani
be shown by allegations and evidence.
46 Tax. 699-601, BOSS T. Q-HIin..
In Action on Husband's Not« Agtiiut Widow eonvertioi
mnnity property, its exemption is matter of defense, and c<
need not be alleged in partition.
Approved lu Cockrum v. McCracken, 1 Tex. Ap. Civ. 29,
against widow on oommnnity debt she must allege and pre
emption of property.
46 Tex. 601-615, PHILLIPS T. ATBES.
If OallB in Snrrey a» Conflicting, preference mast be gi
those which are more specific.
Approved in Lumpkin v. Draper (Tex. Bup.), 18 8, W. lOf
Davis V. Baylor (Tex. Sop.), 19 8. W. 524, both reaffirmini
BobinsoD V. DosB, 53 Tex. 508, applying rule in determining
ary; dissenting opinion in Sanborn v. Gnnter, 64 Tex. 297, :
8. W. 78, 79, majority determining boundary of uncertain i
See notes, B4 Am. Dee. 313; 129 Am. St. Bep. 893.
Beginning Comet In PUt is of no higher dignity than anj
corner of survey.
Approved in Cox v. Pinks (Tex. Civ.), 41 8. W. 90, reaf
rule; Ayers v. Harris, 64 Tex. 300. Band v. Cartwright, 8
403, 18 8. W. 796, Blum v. Bowman, 66 Fed. 886, and Davis v.
61 Tex. 21, all holding lines may be determined from natural
instead of from designated beginning corner.
In Locating Survey, order of lines and comers given by si
is unimportant; courses may be reversed.
Approved in Bwenson v. Willsford, 84 Tex. 428, 19 8. ^V
Piatt V. Vermillion, 99 Fed. 365, Griffin v. Boo, 2 Posey U.
and Ayers v. Lancaster, 64 Tex. 310, 312, all applying rule in
mining boundary.
Constmetion Most Ag&lnst Party claiming under uncertain
will prevail; he must establish his c
633 NOTES OK TEXAS BEPOBTS. 45 Tez. 617-634
AppTored in Williama v. Winilow, 64 Tex. 377, 19 S. W. 513,
and Sehoffer t. Berry, 68 Tex. 714, both holding party claimiDg
uDdar Biirvej mnst ettablish cornerB; Uorgan v. Mowles (Tex. Civ,),
61 S. W. 136, party Making to eitaod survey baa burden of proof.
45 Tex. 617-621, WABD t. WILUAliIS.
At Jaw, Rnla In Piobato S«ls ie caveat emptor; In «qnity da-
fendant may obtain relief by showing fraud or mistake.
Approved in Altgelt v. Mernitz, 37 Tex. Civ. 403, 83 8. W. 894.
following rule; Medlin v. Wilkins, SO Tex. 417, declarationa of ad-
ministrator not relied on cannot affect boundary of land sold; Dallas
County V. Club Land etc. Co., 95 Tex. 20B, 66 8. W, 2B7, affirming
Club Land etc. Co. v. Dallas Co., 26 Tex. Civ. 453, 64 8. W. 875.
on failure of title probate purchaser cannot recover from estate;
Wolldridge v. Womack, 1 Tax. Ap. Civ. 144, awarding recovery on
note notwithstanding partial failure of title after probate sale; Akin
V. Horn, 2 Tex, Ap. Civ. 19, arguendo.
46 T«X. 021-^6, I.AIBD t. IVGHB.
Betlred Partner must Show Notice to dealers, by direct or cir-
cumstantial evidence, of dissolution, to relieve himself from subse-
quent liability.
Approved in Mann v. Clapp, 1 Tex. Ap. Civ. 230, reaffirming rule;
Qilchrist v. Brande, 58 Wis. 200, 15 N. W. 824, sud Qilbough v.
Stabl Bldg. Co., 16 Tex. Civ. 451, 41 8. W. 537, both holding publica-
tion of notice in newspaper insufficient; Bobertsou Lumber Co. t.
Anderson, 96 Minn. 531, 105 N. W. 974, as to whether notice of dis
sola t ion partnership to two general managing agents of creditor
firm was notice to firm. Bee notes, 26 Am. Dee. 293; 76 Am. Dec.
127.
Distinguished in Blanks v. Ealfln (Tex. Civ.), 30 8. W. 944, hold
ing person taking note payable to partnership and indorsed by mem-
t>er of aueb firm of which he knew nothing charged with notice of
previous dissolution of firm.
StfttDt« Balfttina to Taking of DaposlttMis must be strietly com-
plied with.
Approved in Bice t. Ward, 93 Tex. 536, 36 8. W. 749, suppressing
deposition where notary used memoranda furnished by counsel pro-
curing taking of deposition to suggest to witness mstteia omitted
in answer and to refresh witness' memory,
45 Tex. 62S^634, SELEBPINE V. OAMPBEUi.
Wbaie Mortgage Becniei Two Notei, on foreclosure by holder
of note falling due, bolder of other note is necessary party.
Approved in Soule v. BsteliS, 33 Tex. Civ. 261, 76 S. W. 584, ap-
plying rule to vendor's Uen notes; Cannon v. McDaniel, 46 Tex. 314,
all Itenholders should be made parties to foreclosure if practicable;
Bobertson v. Ouerin, 50 Tex. 324, bolder of one purchase money note
gains no preference by foreclosure against another bolder not a
party; Delespine v. Campbell, 52 Tex. 11, affirming rule on subse-
quent appeal; Salmon v. Downs, 55 Tex. 247, holders of purchase
money notes have equal rights in land to secure payment; Dean v.
Hudson, 1 Posey TJ. C. 371, Glaze v. Watson, 55 Tex. 568, both bold-
iag bolder of one purchase money note not a party to foreclosure
of vendor's lien is unaffected thereby; Cook v. Pollard, 70 Tex. 727,
43 Tex. 634-65S NOTES ON TEXAS BEPOBT& 6S1
8 a. W. 514, holding all attaching creditors oeeeMarj parties ii
detenniniDg priority of liens; Mix t. Cardwell, Z Posey U. C. 26S
all subsequent encumbrancers, with notice, are necessary parties tc
foreclosure; Stell t. Lewis, 2 Posey U. C. S33, all parchaee monej
notes stand on equality of payment against estate of maker; Ozriieei
T, Watt (Tei. Civ,), 42 B. W. 123, holding person in posscBsion o)
property proper party to suit to foreclose mortgage thereon; Tidwell
T. Starr (Tez. Civ.), 42 S. W. 779, holding all holders of vendar'i
lien notes proper parties to suit to foreclose any one note. 8ea note.
37 Ii. B. A. 743.
46 lex. 634-644, McBEE T. JOHNSON.
Probate Order, Sale, confirmation, and payment of purchase money
constitnte equitable title, without deed.
Approved in Hendricks v. Huffmeyer, 15 Tax. Civ. 100, 38 B. W.
C27, admitting probate order of sole to show lands intended to be
described in partition decree; Byan t. Fergusson, 3 Wash. 3SS, 2G
Pac. 914, upholding probate purchaser'* tight to land although deed
imperfect.
When Dlsclaimar Uakes Exctlptllm imperfectly described, but
which evidence shows applicable to definite tract, court will apply
defense of not guilty to snch tract.
Approved in Herring v. Swain, S4 Tex. 525, 19 S. W. 774, apply-
ing role in trespasB to try title; Wardlow v. Harmon (Tex. Civ,),
45 8. W. 629, holding where defendant in trespass to try title dis-
elaim* b«yond certain boundary, plaintiS need not deraigu title from
■overeignty of soil.
4S Tex. 644-666, BTAITLET ▼. EPPEBSON.
OveiroUng of AppUcfttion for continuance not complying with
statute will not be reversed, nnless it appears that testimony sought
was material.
Approved in Low etc. Water Co. v. Eickson, 32 Tex. Civ. 459, 74
8. W. 763, holding error to refuse continuance where ancontroverted
affidavit showed one of defendants intended to be present at trial
and was prevented by sickness and materiality of his testimony
shown; Watts v. Holland, 56 Tex. 62, judicial discretion will be re-
vised when it subverts legal rights; Brown v. Abilene Nat. Bank,
. 70 Tex. 752, 8 S. W. SOO, affirming overruling of application for con-
tinuance where due diligence not shown.
In Tn^asa to Try tiO^ plaintiff need not give notice of source
from which he claims title.
Approved in Eerlicks v. Keystone Land etc. Co. <Tex. Civ.), 21
8. W. 624, holding proceeding! in administration of estate admiK-
Bible to identify land conveyed by administratrix; Hussell v. Meyer,
7 N. D. 341, 76 N. W. £83, 47 L. B. A. 837, one who puts it out •(
his power to prove his title by best evidence cannot produce sec-
ondary evidence; Lapowski v. Smith, 1 Tex. Civ. 394, 20 8. W. 959,
arguendo.
fropei^ Oonveyed by Deed to Wife is presumed to be community
property.
Approved in Welbom v. Odd Fellows' etc. Co., 66 Tex. 504, de-
posit of money by husband to wife's account does not make it separ-
ate property; Collins v. Turner, 1 Tex. Ap. Civ. 257, affirming mlt
in action for trespass. See notes, 86 Am. Dec. 637; 96 Am. l>ec
423; 126 Am. St. Bep. 121.
653 NOTES ON TEXAS BEPOBTS. 45 Tar. 644-856
Def«iiduit In Tr«spas> to Try Title who hftd sold land and eoc-
■ented to Bubatitution of name of third party for that of Tendee !■
estopped from denying sDCh third person's title.
Approved in Moote v. Tarrant Co. etc. Asen. (Tei. Civ.), 31 8.
W. 710, holding where holder of bond for title directs' conveyance
to third person, sueh person haa good title against all with notioB.
See note, 18 L. B. A. (n. ■.) 1172.
NOTES
OK THE
TEXAS REPOETS.
GASES IN 46 TEXAS.
tS Tex. 1-fl, WAIJ>SOFF ▼. SOOTT.
Und«r Mecbanlc's Uen I«v, subcontraetar may fix IUd on bDnse
ind laud enforceabla by judgment agaiaat owner, bj complyiug
vitb statutory proviBiouE, but he cannot recover perronal judgment
igainBt owner.
Approved in Mnller t. McLaughlin, 37 Tex. Civ. 452, S4 S. W. 668,
There property improved is horosBtead and contract for improvement
B not signed by wife, materialman serving statutory notice on owner
)efore Bettlement with contractor has no right to personal judgment;
lissenting opinion in Shieldi v. Morrow, 51 Tex. 401, majority hold'
Kg act of ISTl giveer meehanic's lien to original contractors; Baw-
tiag V. Haney, 1 Tei. Ap. Civ. 395, holding pereaaal judgment against
iwner improper in suit to fix building lien.
Oontractts and All Othen Holding Liens must ba made parties to
luit by subcontractor to enforce mechanic's lien on bouse and lot.
Approved in Eastern Texas R. Co. v. Davis, 37 Tex. Civ. 344, 83
}. W. 884, applying rule in action to foreclose railroad laborer's
ien; Pool ▼. Sanford, 52 Tex. 634, holding bolder of mechanic's lien
nay intervene in suit by other lienholder; Land Mortgage Bank v.
Juansh Hotel Co. (Tex. Civ.), 32 S. W. 577, holding where building
cannot be separated from land, vendor's lien shoulel be reatricted to
and, and whole property should be sold, and proceeds prorated be-
.ween vendors' and mechanics' liens.
16 Tex. 10-14, BOOGS v. STATE.
Tax OoUoctor Does not Occupy Belation of BallM for Hire, but is
sound to account for and pay over all public moneys collected, less
lammiasions, or bis sureties are liable therefor.
Approved in Poole v. Burnet County, 97 Tex. 82, 84, 76 8. W. 426,
127, applying mle to county treasurer; Wilson v. Wichita Co., 67 Tex.
340, 4 8. W. 88, applying rule as to county treasurer; Coe v. Nash
;Tex. Civ.), 40 8. W. 238, holding official bond* require ofScera to
tafely keep and administer public moneys at risk of officer to whom
ntrusted; Coe v. Force, 20 Tex. Civ. 552, 50 S. W. 617, holding
;onnty treasurer liable on official bond though money lost by robbery;
Chicago etc. B. B. v. Bartlett, 120 111. 619, 11 N. E. 873, holding county
2 Tex. Notes— 42 (657)
46 Tex. 15-23
NOTES ON TEXAS BEPOBTS.
658
treasurer liable on official bond though money stolen. See note, 91
Am. St. Bep. 519.
Distinguished in State t. Gramm, 7 W70. 375, 52 Pac. 547, 40 L.
B. A. 690, holding treasurer not liable on official bond for money lost
through bank failure.
Party may Specially Object to Any Item of auditor's account and
have jury pass thereon, but, in absence of such objection, account is
deemed conclusive.
Approved in Moore v. Waco Building Assn., 9 Tex. Civ. 407, 28 S.
W. 1033, reaffirming rule; Harper v. Marion County, 33 Tex. Civ. 655,
77 S. W. 1045, where auditor's report not excepted to, evidence to
contradict it is inadmissible; Eiendall v. Hackworth, 66 Tex. 506, 18 S.
W. 105, holding objections to items of auditor's report render evi-
dence contradicting such items admissible; Aransas Pass Land Co.
V. Hanaford, 4 Tex. Civ. 290, 23 S. W. 568, holding auditor's account
not objected to conclusive, and improperly submitted to jury; Wil-
born V. Elmendorf (Tex. Civ.), 40 S. W. 1060, holding auditor's report
may be contradicted by evidence where exceptions to report or items
have been filed before trial.
46 Tex. 15-23, HABBISON v. VINES.
Shares of Banking Aseociatione authorized by act of June 3, 1864,
in hands of shareholders are taxable by states within limitations of
section 41 of said act, though entire capital of bank invested in
national securities.
Approved in Waco Nat. Bk. v. Bogers, 51 Tex. 608, holding state
could not in 1876 assess national bank stock owned by individuals.
See notes, 96 Am. Dec. 292, 294.
Under Act of Congress, state statute levying tax on shares of banks
authorized by act of June 3, 1864, need not embody constitutional
restrictions on power of state to levy such tax.
Approved in Bosenberg v. Weekes, 67 Tex. 583, 4 S. W. 900, hold-
ing state tax law not conflicting with act of Congress of 1868 suf-
ficient. See notes, 45 L. B. A. 745; 22 L. B. A. 701.
Injunction will not Lie to restrain collection of tax upon assess-
ment actually made, because not correctly described on assessment-
rolls, from which assessment was made.
Approved in George v. Dean, 47 Tex. 84, reaffirming rule; Bed v.
Johnson, 53 Tex. 288, holding allegation that tax would be cloud on
title insufficient for injunction; Blanc v. Meyer, 59 Tex. 92, refusing
injunction to restrain collection of tax where tax justly due unpaid;
Bosenberg v. Wilkes, 67 Tex. 587, 4 S. W. 902, holding valid tax not
vitiated because assessment not put on proper roll; Dean v. Kopperi,
1 Tex. Ap. Civ. 410, holding injunction to restrain tax sale not
granted without tender of taxes due; Bhomberg v. McLaren, 2 Tex.
Civ. 395, 21 S. W. 572, holding assessor's failure to make separate
roll for each district will not invalidate tax. See notes, 69 Am. Dec.
200, 204; 23 Am. Bep. 623; 8 L. B. A. 729.
Words "Shares" and "Stock" in bank tax act of 1873, are synony-
mous, and each corporator must turn in portion of capital stock
which he owns.
See notes, 45 L. B. A. 740; 12 L. B. A. 767.
Illegal Tax will not be Enjoined unless petitioner offers to pay tax
legally due.
Bee note, 22 L. B. A. 703. .
NOTES ON TEXAS B&P0BT8.
AdndnlBtntor bu Autborlty to Allow OUlm, anthentkation of
frbicb doei not show on f&ce that it ig mada bj owner, agent, or attor-
Approved in Lanier t. Tajlor (Tax. Civ.), 41 S. W. 517, holding
tender of claims to admiaistrator with unsigned affidavit ia not snf-
Icient preBentation. See note, 130 Am. St. Bep. 322, 323,
Jndgnient of I}istilct Oout awarding execution of vendor'a lieu
igainat estate throagh administrator, and directing ordei of sale to
msae to eheriff, is void.
Approved in UcCormick t. UeNeel, G3 Tex. 23, holding district
wnirt cannot order sale by administrstor to pay note.
Hiscellaneoue. — Cited in Heath v. Qarrett, 90 Tex. SOS, same ease
16 Tnx. 20-29, PINSON ▼. KIBSH.
Tliftt Affidavit waa Wiltton npon Original PMitlon after defendant
had appearedj that affidavit was not marked "filed"; that petition
iraa not refiled after affidavit made, will not invalidate attacbmeat.
Approved in Wbitemore v. Wilaoo, 1 Posey TJ. C. 220, holding affi-
lavit sufficient if ueceisary facts alleged and sworn to, regardless of
Plea In Beeonvwitlon Claiming Damages for wrongful attachment,
■bowing damages not immediately and proximately resultiDg from
nicb attachment, shows no cause of action for damages.
Approved in Schmidt v. Bost, I Tex. Ap. Civ. 375, holding matter
pleaded in reconvention must be connected with main action; Fech-
tieimer v. Ball, 1 Tex. Ap. Civ. 422, holding assignors cannot recover
damages for levy of attachment on goods assigned; Pacific Express
Co. V. Malin, 132 TI. 8. B38, 10 Sap. Cl. Kep. 108, 33 L. 452, holding
iamagee for wrongful attachment confined to injury snffered from
attachment; Tebo v. Betancourt, 73 Uies. 672, 55 Am. St. Bep. 575,
19 So. S34, holding defendant not owning property attached eaanot
nie for costs on attachment suit. See notes, 61 Am. Dec. 470, and
98 Am. St. Bep, 270.
te Tex. 30-36, DABCET ▼. TTJBNEB.
Statement of Facts, Signod by Judge Alone, is presumed to be so
ngned because counsel disagreed thereon, and certificate of judge
thereto as containing "all the evidence material in the case" doea not
:haDge its meaning under statnte.
Approved in Steinbeck v. Stone, 53 Tex. 385, Williams v. State,
I Tex. Ap. 179, and Hess v. State, 30 Tex. Ap. 479, 17 8. W. 1099,
Ul reaffirming rule; Kerrigan v. State, 21 Tex. Ap. 493, 2 S. W. 757,
holding judge's certificate to statement of facta that it is "correct
statement of facts proved," sufficient; Morse v. Stat?, 39 Tex. Cr.
572, 50 S. W. 342, holding judge's signature to statement of facts
»n forfeited bail bond sufficient certificate.
Damages for Wrongful Attachment are not recoverable where no
actual loss is shown, and loss of credit is due more to other causes
than te wrongful attachment.
Approved in Landes v. Eichelberger, 2 Tex. Ap. Civ. 128, bolding
damages for sale, under wrongful attachment, difference between
value and aale price.
40 Tex. 35-51 NOTES ON TEXAB BBP0BT3. «6I)
MiseellaneoDB. — Cited in Campbell t. H. k T. etc. B. B., 2 Pou;
U. C. 475, holding lAsignmenti of error not pointing them out will
not be considered.
46 Tex. 36-61, YTAUJlCB T. FIHBEBa.
Wife iB not Idftbla on Note executed bj bercelf and busbaod fot
goods puTchaBed to replenish stock of goods that were separate prop-
erty of wife.
Approved in CockruD v. IfcCraeken, 1 Tex. Ap. Civ. S9, reaffirming
rule; Green t. Ferguson, 02 Tex. 52S, holding wife eaiiDOt invest sep-
arate estate in mercantile business and claim profits; Epperson ▼,
Jones, 65 Tex. 428, holding profits derived from investment of wife's
separate property community property; App«lbaiim v. Bates, 3 Tex.
Ap. Civ. 206, holding married woman not liable on note executed
jointly with husband; Baird v. Patillo (Tex. Civ.) 24 8, W. 814, hold-
ing marrieii woman not liable for covenants of warranty in deed un-
less for benefit of separate estate.
OonrtB WUl N«TBr Becognlze BxlBtencft of M«r«uitll« PartaeoUp
between husband and wife.
Approved in Steinback v. Weill, 1 Tex. Ap. Civ. 525, reaffirming
rule; Brown v. Chancellor, 61 Tex. 445, holding woman after mar-
riage cannot form partnership binding on her; Miller v. Marx, 65
Tex. 132, holding wife cannot become partner in business; Henry v.
VoltE, 1 Tex. Ap. Civ. 426, holding wife owning ferry not liable for
damages for husband's negligence; Searcy v. Mealier, 1 Tex. Ap. Civ.
523, holding wife liable only for necessaries bought by her or for
separate property; Steinback v. Weill, 1 Tex. Ap. Civ. 52S, holding
married woman not liable for goods sold mercantile firm, she being
member.
Distinguished in Batto v. Holland, 2 Tex. Ap. Civ. 411, holding
investment of wife's separate property in mercantile business does not
destroy character. See note, 31 Am. St- Bep. 934.
Wben Bepaiate Property of Wife hu Been Sejxed under attach-
ment on note on which she is not liable, she may recover property
by bringing suit or croBs-action, by leave of court, separately U
husband fails to join her.
Approved in John v. Battle, 5S Tex. 596, holding wife may sue
alone for separate property when husband refuses to join.
Wben Goods luve Been Wrongfully Attached, owner may recover
back all goods not necessary to satisfy debt with compcnaation for
their detention, and, if debt should not be established or lien fa
invalid, owner may recover all goods or their value with interest from
levy, if sold.
Approved in Willis v. Loury, 66 Tex. 541, 2 8. W. 450, Mnlhaul v.
Feller, 1 Tex. Ap. Civ. 664, and Dolores Land etc. Co. v. Jonea, 3
Tex. Ap. Civ. 329, all reaffirming rule; Blum v. Merchant, 5S Tex.
404, holding damages for wrongful attachment valoe of goods when
sold, with legal interest; Tucker v. Hamlin, 60 Tex. 174, holding meas-
ure of damages for goods sold under wrongful attachment value of
goods with interest; Blum v. Thomas, 60 Tex. 161, holding proper
charge that plaintiff could recover value of goods when sold with
interest; Hamilton v. Kilpatriek (Tex. Civ.), 29 8. W. 819, holding
attachment being dissolved, property is released from levy and must
be returned to owner; Texas Installment Co. v. Lewis (Tex. Civ.),
30 8. W. 4S7, holding plaintiff may recover value of property seised
«61 NOTES ON TEXAS BEPOKTS. 46 Ter. 35-51
under writ of sequest ration wrongfully sued oat, with intereBt there-
on from Beizure; Heidanheimar v. ScMett, 63 Tex. 396, holding dam-
ages for wToagfnl seiznrs of goods messurad bj vslue when seized;
Oulf etc. B;. T. Holliday, 65 Tex. 521, holding measure of damage
for crop destroyed by overflow value thereof, with interesti Trawiclt
T, Uartin-Brown Co., 79 Tex. 463, 14 8. W. 565, holding damages for
wrongful attachment allowed for loss to owner by wrongful seizure
Trawick v, Martin-Brown Co., 79 Tex. 464, 14 S. W. 565, holding in
jury to feeling and loss of credit not elements of damage; Neese i
Badford, 83 Tex. 58S, 19 8. W. 142, holding loss of damage not ele
meot of damage for wrongful attachment; Anderson y. Larremore,
1 Tex. Ap. Civ. 533, holding measure of value for conversion of prop-
erty valup thereof with interest; Webb v. Harris, 1 Tex. Ap. Civ.
583, holding attorney's fees for suing for damages not damages for
wrongful conversion; Schwarta v. Burton, 1 Te<. Ap. Civ. 698, hold-
ing damages allowable only for natural result of wrongful attach-
ment; Dagey v. Hughs, 2 Tex. Ap. Civ. 19, holding judgment allow-
ing damages in attachment suit proper where attachment wrong-
fally sued out; Landes v. Eichelberger, 2 Tex. Ap. Civ. 127, holding
injury to credit not considered in estimating actual damages for
wrongful attachment; Elser v. Pierce, 2 Tex. Ap. Civ. 848, holding
actual damages for wrongful attachment those naturally resulting
therefrom; Arwine v. Arwine, 3 Tex. Ap, Civ, 194, holding damages
for conversion of property value thereof, with legal interest; Virginia
Fire etc. Ins. Co. v. Cannon, 18 Tbx. Civ. 593, 45 8. W. 948, holding
evidence of value being indefinite, jury should determine; Anderson
T. Sloane, 72 Wis. 584, 7 Am. St, Bep. 898, 40 N. W. 222, holding
damage for wrongful seizure restricted to interest on value, deprecia-
tion, and expenses.
Deteiloratloii In QnaUty, and DunogM In Price, of Qoods wrong-
fully attached should be facially pleaded.
Approved in Harris v, Finberg, 46 Tex. 85, denying damages for
depreciation in market price where not specially pleaded.
Vliei« Property is Wrongfully Attached defendant may plead in
reconvention damage resulting therefrom, and recover exemplary dam-
ages for malicious attachment oi actual damages under statutory
attachment bond.
Approved in Galveston etc. B. B. v. Le Gierse, 61 Tex. 203, re-
affirming mie; Qlasscock v. Shell, 57 Tex. 222, holding exemplary
damages claimed in addition to actual damages should be specially
pleaded; Williams t. Warren, S2 Tex. 323, 18 3. W. 581, holding void,
judgment in attachment suit, against sureties on receiver's bond;
Fecbheimer v. Ball, 1 Tex. Ap. Civ. 421, holding actual and viodietive
damages for wrongful attachment should be separately pleaded;
Texas etc. By. v. Pollard, 2 Tex. Ap, Civ. 426, 427, holding actual
and exemplary damages must be separately pleaded; Campbell v.
H. A T. etc, B. B., 2 Posey U, C. 47«, holding petition for exemplary
damage* must allege facts entitling petitioner thereto; Duruett v.
Whaley, 2 Posey U. C. 489, holding damage for loss of time in get-
ting replevy bond sureties should be specially pleaded; Hamilton
V. Kilpatrick (Tex. Civ.), 29 8. W. 819, holding exemplary damages
not recoverable against sureties on bond for distress wnrrant;
Strauss v. Dundon (Tex. Civ.), 27 S. W. 503, holding exemplary dam-
ages not recoverable for malicious sning out of attachment by altor-
46 Tex. 51-62
NOTES ON TEXAS EEPORTS.
662
' y
1 I
i
nej nnlesB plaintiff knew of attorney's malice. See note, 81 Am. Dec.
471.
Agent Malidoniay Suing Out Writ of Attadunent is responsible;
but principal would not be charged with his malice, but would be
responsible for wrongfully suing out attachment.
Approved in Willis v. McNeill, 57 Tex. 477, Tillman t. Adams, 2
Tex. Ap. Civ. 266, Thompson ▼. Bell, 11 Tex. Civ. 2, 32 S. W. 143,
and Lee v. Wilkins, 1 Posey XJ. C. 301, all reaffirming rule; West v.
Grocery Co., 138 N. C. 168, 50 S. E. 566, where attorney employed by
creditor for specific purpose of attaching debtor's goods, creditor not
liable for unauthorized act of attorney in causing debtor's arrest;
Western Union Tel. Co. v. Brown, 58 Tex. 175, 44 Am. Eep. 613,
holding corporation not liable for agent's maliciously levying attach-
ment unless authorized or ratified. See notes, 68 Am. St. Bep. 275;
50 L. R. A. 648; 27 L. R. A. 196; 14 L. R. A. 791.
Wife cannot Enter into partnership contract with husband.
See notes, 27 L. B. A. 196; 2 L. B. A. 343.
46 Tez. 51-62, LUMPKIN v. MUBBELL.
Judgment will not be Bevened except for errors appearing in
record going to foundation of action, or unless judgment is evidently
unjust, where assignment of errors does not specifically point out
errors.
Approved in Byrnes v. Morris, 53 Tex. 220, reaffirming rule; St.
Louis etc. R. Co. v. Dobie (Tex. Civ.), 75 S. W. 341, assignment of
error that trial court erred in overruling defendant's motion for new
trial is too general; Texas etc. Ry. v. Kirk, 62 Tex. 233, holding
general assignment of error cannot be considered;* Handel v. Kramer,
1 Tex. Ap. Civ. 473, holding assignment of errors must be specific;
Clements v. Clements, 18 Tex. Civ. 620, 46 S. W. 63, reversing judg-
ment without specific assignment where error apparent on record.
Surviving Husband is not Obargeable With Conversion, and is liable
only as trustee of community property of which he has retained con-
trol and possession after wife's death.
Approved in Hardin v. Abbey, 57 Tex. 588, holding court should
uphold conveyance to party in satisfaction of community debt; Car-
ter V. Conner, 60 Tex. 60, holding sale under judgment against sur-
vivor, for community debt, passes title to community property;
Pratt V. Godwin, 61 Tex. 335, holding irregularities in inventory of
community property will not vitiate sale by survivor; Ashe v. Yungst,
65 Tex. 636, holding survivor may sue community homestead to
pay community debts; Western Union Tel. Co. v. Kerr, 4 Tex. Civ.
284, 23 S. W. 565, holding surviving wife holds community property
as trustee for husband's heirs; Davies v. Thompson (Tex. Civ.), 50
S. W. 1064, holding there can be no conversion by administrator in
possession of partnership property as administrator of partner; Yancy
V. Batte, 48 Tex. 77, in dissenting opinion, majority holding heirs
entitled to one-half community estate at death of spouse.
Distinguished in Pressley v. Robinson, 57 Tex. 458, holding heirs
entitled to one-half community estate in absence of community debts;
Cheek v. Herndon, 82 Tex. 151, 17 S. W. 765, holding heirs entitled
to one-half community property, there being no community debts.
Statute of August 26, 1857, is not intended as limitation upon
rights of husband to deal with community property after wife's
death.
603 NOTES ON TEXAS HEPOETS. 46 Tei. 65-99
Approved in Sanger t. Moody, 60 Tex. 98, reaffirming rule; Wenar
T. Steczel, 48 Tex. 4SQ, holding a&les of commnuity propert]' by miT-
vivor to pay community debts good against heirs; Witbrow v. Adams,
4 Tex. Civ. 445, 23 S. W. 43S, holding defeetive inventory will not
deprive larvivot of statutory control of eommnnity property.
Oonit will Take Notlc« of Absence of other than Confederate
money dnriog Confederate war, and will not charge tmatee for
moneys received during war unless receipt proved.
Approved in Simpson v. Mullen, 1 Posey U. G. 3B1, holding con-
tract for Confederate money between eitizene of Confederate states
during war enforceable. See note, 4 L. B. A. 4S.
46 Tex. 66-79, BLTTHE t. HOTTSTON.
I^and OommiaBtofur Issnlng Frotocol U Prasnaied to have complied
with all legal requirements, even though protocol is irregular as to
Approved in Goesbeck v. Golden (Tex. Sup.), 7 8. W, 364, reaf-
firming rule.
Distingoished in Owen v. Presidio Mining Co., 61 Fed. 12, holding
making of grant by alcalde raises no presumption of autbority after
colonization law.
Oegilflcate of Acknowledgment of Notary Pn1>Uc in other respects
sufficient, will not be invalidated by difference between county named
in outset and iuitials appended to signature.
Approved in Talbert v. Dull, 70 Tex. 678, 8 8. W. 531, holding ac-
knowledgment not vitiated by omitting necessary word where con-
text supplies deficiency; Linskie v. Kerr (Tex. Civ.), 34 3. W. 766,
holding notary's eertiflcHte to depositions sufficient though omitting
name of county, where contained in aeal; Bryan t. Shirley, 53 Tex.
451, in extract of plaintiff's brief showing issues; Bryan v. Shirley,
53 Tex. 452, In extract from defendant's brief showing iEsues; Alex-
ander T. Houghton, 86 Tex. 704, 26 S. W. 938, reaffirming rule on
similar facts; Coffey r. Hendricks, 66 Tex, 879, 2 8. W. 49, holding
notarial seal presumed properly attached though place not indicated
as usual; Chamberlain v. Fybas, 81 Tex. 514, 17 S. W. 55, holding
notary public presumed to have acted properly and in county re-
cited in acknowledgment", Summer v. Mitchell, 29 Pla. 211, 30 Am. St.
Bep. 118, 10 So. 568, holding clerical errors will not vitiate acknowt-
edf^eut where context shows compliance with statute. See note,
lOS Am. St. Rep. S50.
Denied in MiddlecofT v. Hemstreet, 135 Cal. 177, 67 Pac. 769, certifi-
cate of acknowledgment of justice of peace showing on face that he
took it out of hi^ county ia insufficient to entitle instrument to
Miscellaneous. — Houston T. Blythe, 60 Tex. S09, G14, subsequent
40 Tex. 79-89, EABBIS T. UNBEBO.
Wife's Name Balng Fonnd on Nat« with husband's does not raise
presumption that she is jointly liable thereon with him.
Approved in King v. State, 42 Tex. Cr. 113, 96 Am. St. Bep. 792.
57 8. W. 842, in dissenting opinion, majority holding wife not bound
by note unless for necessaries or separate estate; Stiles v. Lord, 2
Ariz. 161, 11 Fae. 317, married woman is not liable on her contract
of indorsement of promissory note.
46 Tei. 99-103 NOTES ON TEXAS BEPOHTS. (I6t
Deterloiatlan In Muket Frlc« of OooOb seized under writ of seques-
tration eannot be recovered for in damages unless specially pleaded.
Approved in Western Mortgage Co. v. Shelton, S Tei. Civ. 552, 29
8. W. 494, holding special damages for wrongful levy of gequestr*-
tioD writ must be specially pleaded; Durnett v. Whaley, 2 Pose;
V. C. 489, hoiding attorney's fees allowable as damages for wrong-
fully levying aequeBtration writ when specially pleaded; Coulson v.
Panhandle Nat. Bk., 54 Fed. 8SS, boldlng damage for deterioration
Id price from unlawful seieura must be specialty pleaded. See note,
77 Am. Dee. 155.
Ezemvl&iy Damagag an Allowable for maticiouslj suing out writ
of sequestration, and actual damages may be recovered when writ
was merely wrongfully sued out, but expense incurred in suit is never
element of damages.
Approved in Matthews t. Boydstun (Tei. Civ.), 31 S. W. 820, re-
affirming rule; Craddock y. Goodwin, 54 Tex. 5B3, holding exemplary
damages allowable for wrongful attachmeot where maliciously levied;
Vance v. Lindsey, 60 Tex. 291, holding exemplary damages not allow-
able in trespass to try title where no actual damage shown; Bear
T. Karx, 63 Tex. 303, holding defendant may recover damages for
wrongful attachment regardless of plaintiff's intention! Green v. Carl,
ton, 1 Tex. Ap. Civ. 476, holding plea in reconvention for damagee
good where attachment wrongfully sued out; Anderson t. Larremore,
1 Tex. Ap, Civ. 533, holding measure of damage for conversion
value of property with legal interest; Arwino v. Arwine, 3 Tex.
Ap. Civ. 194, holding measure of damages for conversion value of
property when taken, with interest; Finegan v. Read, 8 Tex. Civ.
35, 2S S. W. 262, holding SQretiea on sequestration bond liable for
damages resulting from seizure and special damages proved; Simp-
son V. Lee (Tex. Civ.), 34 S. W. 1054, holding person without title
dispossessing person of land is Kable for actual damages. See notes,
60 Am. Dee. 768, 73 Am. Dec. 25S, and 81 Am. Dec 473.
46 Tax. 99-103, KDIGSTOH t. FICIEINS.
Puol EvldHice Is Admissiblo to explain or remove nneertainty not
apparent on face of deed, but rising from extraneone facts.
Approved in Texarkana ete. By. Co. v, Collins (Tex. Civ.), 47 S.
W. 821, reaffirming rule; Sloan v. King, 33 Tex. Civ. 544, 77 S. W.
51, parol admissible to Identify land by calls in description under
general issue where they explain discrepancies and show which is
correct; Aldridge v. Pardee, 24 Tex. Civ. 260, 60 S. W. 792, spplying
rule to deed made at foreclosure sale; Wilson v. Smith, 50 Tex. 370,
holding deed not presumed void because of uncwtainty in descrip-
tion; Norris v. Hunt, 51 Tex. 615, holding parol testimony admissible
to aid latent ambiguity ia description in deed; Talkin v. Anderaon
(Tex. Sup.), 19 S. W. 352, holding deeds not invalidated by latent
ambiguities; Oiddings v. Day, 84 Tex. 609, 19 S. W. 663, holding
parol evidence admissible when ambiguity in description not apparent
from deed; Vineyard v. O'Connor, 90 Tex. 63, 36 8. W. 425, holding
conveyance of "interest in estate pnrcfaased at administrator's sale"
sufficiently describes land; McWhirter v, Allen, 1 Tex. Civ. 651, 20
S. W. 1008, holding deed not void if land ascertainable by extrinsic
testimony; Green v. Barnes, 0 Tex. Civ. 665, 666, 29 S. W. 548, hold-
ing misdescription of bond in description in deed will not invalidate
deed; Attaway v. Carter, 1 Posey U. C. 77, holding deed not void
665 NOTES ON TEXAS BEPOETS. 18 Tei. 103-111
for nneertainty, teeauHB naming "Easley" for "EogliBh" M ^aDtee;
Blackburn v. McDonald, 1 Posey V. C. 359, holding giantor owning
more, conveyance of unspecified portion conveys intereBt in whole
tract; Minor v. Powers (Tei. Civ.), 24 B. W. 712, holding evidence
showing BurroundingB and actiona of parties admissible to eiplain
deed; Macmanus v, Orkney (Tex. Civ.), 39 3. W. 618, holding where
defects in description are patent, eztraceoua evidence is admiEsible
to identify land conveyed; Coi v. Harl, 145 TJ. S. 387, 12 Sup. Ct.
Bep. 967, 3S L. 746, holding parol evidence admissible to identify to
which of two tracts deed applies.
Distinguished in Logan v. Pierce, 2 Posey U. C. 2S8, holding sher-
iffs and collector's deeds void when ezttiuBie evidence necessary to
identify land.
Wliera UncertalntT In Deed is not Patent, deed and parol evidence
explaining uncertainty should be inbmitted to jury, and identity of
land is question for jury.
Approved in Ragadale v. Bobinson, 48 Tex, 306, holding deed,
though poorly drawn, if not void on face, admissible in evidence;
Bainbolt v. March, 52 Tez. 251, holding bond admissible in evidence
if land described can be identified by extrinsic evidence; Frost t.
Erath Cattle Co., 81 Tei. 511, 26 Am. St. Rep. 837, 17 3. W, 5S,
holding latent defects in description in deed can be aided by testi-
mony; Dwyer v. Speer, 6 Tex. Civ. 92, 27 S. W. 586, holding deed
not uncertain on face should go to jury with explanatory parol evi-
DaacrlpUon of Iiand In Deed, Thongli Vagne and Uncertain, will not
invalidate deed for uncertainty where it does not appear from face
of deed that land cannot be identified.
Approved in American Land etc. Co, t. Pace, 23 Tex. Civ. 259, 56
S. W. 396, upholding sufficiency of evidence of description to war-
rant reformation of trust deed for nntual mistake; Steinbeck v.
Stone, 63 Tex. 386, holding description naming tract and county
and referring to recorded deeds sufficient; Bowles v. Beal, 60 Tex.
324, holding deed describing land by reference to sherifE'i deed in
evidence sufficiently certain.
Distinguished in Brown v. Chambers, 63 Tex. 135, holding sheriff's
deed referring generally to county records for description of land
Wlieca Oalla for Lines and Dlatancea In Deed are contradictory,
those lines and calls wUI be adapted which most nearly conform to
intention of parties.
Approved in Coffey v, Hendricks, 66 Tex. 678, 2 S. W. 48, holding
intention of partiea where ascertainable governs false description.
46 Tex. 103-105, BELDEN ▼. STATE.
Dbder Act for Condemnation and Sale of Land for delinquent
taxes, failure of sheriff, on receiving delinquent list and finding no
personal property belonging to delinquent, to certify fact, invalidates
subsequent proceedings under act.
Approved in separate opinion of Cooley, J,, in State Tax Law Cases,
54 Mich. 447, see 23 N. W. 190, no decision being had because of equal
division of the court.
4S Tex. 108-111, OABTEB T. ATTOWAT.
Subsequent Vendee In Possession, claiming title under recorded
deed, is necessary party in suit to foreclose vendor's lien.
40 Tex. 111-126 NOTES ON TEXAS BEPOBTS. 666
Approved in SUI'imao t. GammBge, S5 Tex. 371, Teaffirming mle;
Owens V. Heidbreder (Tei. Civ.), 44 8. W. 1087.
Sale Under Dedrea of Forecloanie of Vendoi'a Lien againit original
vendee alone ie ineffectual ^s againBt pvrchaser of whose claim there
Approved is Pitman t. Eenrj, SO Tex. 363, holding judgment on
note to which defendant waa not partj inadmiaeible against hint.
Snbaeqnent PnrcIiaseT of Whoaa Olalm There is Notice, though bay-
ing with notice that purchase monej is unpaid, is not affected hj
sale under foreclosure againat original vendee alone.
Approved in Owens v. Heidbreder (Tex. Civ.), 44 8. W. 1087, re-
affirming rule; Langdon v. HcCanleefl, S Poaey U. C. 664, 665, hold-
ing purchaser from vendee not mads part; unaffected by suit fore-
closing vendor's lien.
FlalnUff maj ao Amend Petition «a to set up equities not set up
in original pleadings.
Approved in Attaway v. Carter, 1 Posey U. C. 75, holding amended
petition setting up cause of action with appropriate prajer not de-
mnrrable.
46 Tex. 111-114, SOOOINS ▼. PEBBT.
Liability of Sheriff and Snreties to Pny Statntory Penal^ for
failure to pay over to parties entitled moneys collected under sxecn-
tion can be enforced only bj motion.
See note, 01 Am. Dec. 333.
Statnte Does not Prescribe Time in which motion to eonvol sheriff
to pay penalty for failnre to pay over money collected under execution
must be made, but unexplained delay will be considered as affecting
character of proceeding.
Approved in Donley v. Wiggins, G2 Tex. 304, reaffirming mle.
Person Seeking Damagas Under Statute providing penalty where
sheriff fails after demand to pay money collected under execution
must comply strictly with statute.
Approved in Murray v. Q. C. etc. B. B., 63 Tex. 413, holding person
to recover statutory penalty for overcharge on freight must comply
with statute; Scbtoss v. Atchison etc. By., 85 Tex. 604, 22 8. W. 1015,
holding penalty for railroad refusing to deliver goods recoverable
only by complying with statute; Texas etc. B. B. v. Wood (Tex. Civ,),
23 S. W. 745, holding person seeking statutory penalty for detaining
goods after amount of freight teodered must comply strictly with
statute; State v. Vinsom, 5 Tex. Civ. 318, 23 8. W. 808, holding, to
re(!over penalty under liquor dealer's law, statute must be complied
with. See note, 95 Am. St. Bep. 131.
46 Tex. 114-126, PETEBS v. CLEMENTS.
Entry npon Record of Improperly or Illegally Anthentlcated deed
has no effect as notice.
Approved in Uhl v. Musquec, 1 Posey U. C. 658, holding certified
copy of grant irregularly registered inadmissible in evidence.
Where Vendor Betalna Lieu for Poicbaae Money in deed, he has
superior right to land as against vendor until purchase money is
paid and vendees have mere equitable right to land as against ven-
Approved in Roosevelt v.
62 Tex. 261, Hale v. Baker, f
667 NOTES ON TEXAS EBP0BT8. 46 Ter. 114-12
Civ. 190, 23 S. W. 316, Abernethy r. Baas, B Tex. Civ. 243, 29 a Tl
399, Johnaon v, Lockhart, 16 Tei. Civ. 34, 40 B. W. 641, and Laiigdo
V. McCanlesB, 2 Posey U. C. 664, all reaffirming rnle; Pitachki ■
Anderson, 49 Tex. 3, holding, thongh vendor execute deed, if lien fc
purehKse money retained, contract is executory; McKelvain v. Allei
58 Tex. 387, holding deed and notes reserving vendor's lien evideae
executory contract to sell land; Busael) v. Kirkbride, 62 Tex. 45i
holding vendor under executory contract parts with title on paymei
of purchase money; Oliver v. Clarke, 106 Fed. 403, holding vendor
deed reserving lien does not vest title in vendee. See notes, 62 An
Dec. 612; 107 Am. St. Rep. 723.
DistinguUhed in Tuller v. State, 8 Tez. Ap. 505, holding vende
takes full title to land under deed reciting payment of purchat
money.
SnbseqnaDt Porcliasen are Bound by Becltals In Deed, throng
which they claim, and are charged with notice of all equities apparei:
in line of tiUe.
Approved in Hobertson y. Guerin, 50 Tex. 323, Bryan v. Crump, C
Tez. 12, 15, Pngh v. Mays, 60 Tex. 194, Stiles v. Japhet, 84 Tex. Bl
19 8. W. 452, and Graham v. Hawkics, 1 Posey TJ. C. 519, all leaffirn
ing rule; Jackson v. Elliott, 49 Tex. 68, holding subsequent purchasai
have notice of recitala of purchase money notes in deed; Oaiton ^
Dashell, 55 Tex. 517, holding party charged with knowledge of coi
tents of recorded will and deeds; Porterfield v. Taylor, 60 Tex. 261
holding vendor may enforce lien when deed recites execution of pui
chase money notes; Graham y. West (Tex. Civ.), 26 8. W. 921, holdin
purchaser with notice of vendor's lien takes only such title as his vet
dor had.
Whera on Sale Under Decreo of ForocloniT« of Vendor's Iiten i
favor of husband, his agent buys in property, and sheriff's deed I
made to wife at husband's direction, amount of bid being credited o
judgment, property becomes wife's separate estate.
Approved in Baker v. Baker, 55 Tex. 581, holding deed intentionall
made in wife's name vests title in her as between persons with notice
Pox V. Brady, 1 Tex. Civ. 594, 20 S. W. 1026, holding whether proj
erty conveyed to wife alone community property, question for jurj
See notes, 70 Am. Dec. 400, 76 Am. Dee. lOS, and 86 Am. Dec. 640.
Purchaser in Posaesslon Under Deed at institution of suit, unaffecte
by proceedings to enforce vendor's lien againat original vendee.
Approved in Pierce v. Fort, 60 Tex. 472, McAfee v. Wheelis,
Posey U. C. 69, and Morton v. Ft. Wortli Express Co., 2 Posey V. C
243, all reaffirming role; Williamson v. Wright, 1 Posey U. C. 72(
holding owners of equity of redemption not made parties unaffecte
by foreclosure; Moore v. Ingram, 2 Posey U, C. 261, holding holder
of second purchase notes not parties to suit on first note unaffecte
thereby; Nix v. Cardwell, 2 Posey TJ. C. 267, holding subsequent ei
cumbrances not made parties unaffected by foreclosure of mortgage.
In Snlta to Foreclose Vendor's Lien, all subsequent purchasers aU'
eueumbraneera of whose claims plaintiff had notice most be mad
parties in order to bind them.
Approved in Vieno v. Gibson (Tex, Civ.), 20 B. W, 718, holding pui
chaser under foreclosure of mortgage takes title of all parties to for«
closare suit; Looney v, Simpson (Tex. Civ.), 25 8. W. 477, holdin;
judgment creditor of vendee proper party to suit to foreclose vendor'
lien notea; Bembert t. Wood, 16 Tex. Civ. 471, 41 8. W. 527, holdin;
6 Tei. 126-152 NOTES ON TEXAS BEP0KT8. 668
ilaintiff holding second mortgage moat plead it on foreclosing first
nortgage, or lose lien; Bradford Y. Knowlea, 86 Tei. 503, 25 S. W.
118, holding grantee lof mortgagor necessary part; in foreeloBure suit,
portgagee having notice of conveyance.
Miscellaneous.— Cited in Webster v. Mann, S2 Tex. 425, m ease
There vendor's lisn ezpresalj reserved in deed; Hollowaj v. Blum, 60
Tex. 629, holding firm whom defendant could sue if judgment against
lim permitted to intervene.
16 Tax. 126-133, SIMMONS t. FISBEB.
Where Facta Stated In Petition In Error are contested by answer,
lUpreme court may hear aflidaTits upon which it can determine exer-
:ise of jurisdiction.
Approved in Vance t. State, 34 Tei. Cr. 399, 30 8. W. 764, reaffirm-
16 Tex. 133-141, HOUSTON ETC. tt. R. T. JONES.
When Oosta have Been Informally Taxed so as not to give proper
lotice of charges, or if party deem them excessive or unfounded, he
nay move to retax f osts.
Approved in Patton v. Cox, 97 Tex. 258, 77 8, W. 1027, judgment
'eeovering costs, but not fixing amount, though affirmed on appeal on
'ecord showing their taxation and afterward settled by losing party,
loes not bar district court from relaxing costs; Oains v. Sensing, 64
Tex. 326, holding coats being incorrectly taxed may tie retaied.
Amount Dne Each Wltoees should be separately taxed, and tbae
:arried into bill of costs accompanying execution.
Approved in Perry v. Harris, 1 Tex. Ap. Civ. 224, reafSrming rale.
16 Tex. 141-162, BEHDBIZ t. NUHH.
Equity will Force Duty of Trustee upon person regarding property
kcqulred by artifice or fraud, or where it would be agalnat equity to
lermit person to hold it except as trustee.
Approved in Missouri etc. By. v. Crane (Tex. Civ.), 32 3. W. 13.
-eamrming rule; Satterthwaite v. Loomis, 81 Tex. 70, 16 8. W. 619.
lolding agents purchasing under judgment against absent principal
,ake as trustees for him; Neil «. Yager, 22 Tex. Civ. 634, 55 S.
K. 420, holding person fraudulently procuring cancellation of sale
md securing title, trustee for person defrauded; dissenting opinion in
rhum T. Wolstenholme, 21 Utah, 4S8, 61 Pac. 547, majority holding
rhere A, manager of bank, gave note for life insurance premium,
vhich note waa sold to another bank, which was credited by A's bauk,
ind later other premium notes paid by A's bank, proceeds of insurance
lot subject to trust for later premiums paid by bank.
Allegations of Fraud most Specify Acta claimed to be fraudulent.
Approved in Brown v. Mitchell, 75 Tex. 14, 12 8. W. 607, holding
facts constituting undue influence should be alleged to vacate probate
>n that ground; A. J. Anderson etc. Co, v. Cleburne etc, Co. (Tex.
:;iv.), 27 8. W. 505, holding allegation that switch. board was unsafe
ind such as inspector would not approve is too indefinite; Ohio Culti'
'ator Co. V. People's Nat. Bk., 22 Tex. Civ, 655, 55 8. W. 772, holding,
n pleading fraud, facts constituting fraud must be specially pleaded.
Miscollaneons.— Cited in Callahan v. Hendrii, 79 Tex. 497, 15 a W.
194, as giving adjudication on claim to land in suit
169 NOTES ON TEXAS BEPOBTa 46 Tex. I52-1S8
16 T«X. 162-161, BUBLESON ▼. DUBHAU.
If PerBon vm not bo Occopyliis Iduid at time ol loestion at to give
liim right to purcbase it under atatute, subaequent isaue of patent to
liim wUI not affect locator'a lights.
Approved in De Montel v. Speed, 53 Tex. 342. holding right to vb-
caot public land unaffected hj patent iisued aubsequeut to pre-emp-
tion; Swetman v, Sandera, SS Tez. 29S, 20 S. W. 126, holding void aur.
T«7 of land for one never occupying or tettling upon land; Buak v.
Lourie, 86 Tez. 131, 23 8. W. 684, holding applicationa for survej give
no right to land unleaa applicant actual aettler.
Tlw Word "Settla," aa Applied to Land*, cooveTa idea of permanent
inhabitanee; hence, pre-emption lawB protect oaij aettlsra actually re-
BidJDg on land.
Approved in Jordan v. Payne, 18 Tex. Civ. 383, 45 8. W. 190, and
Bratton v. Croaa, 22 Kan. 677, both realBrming rule; Turner v. Fer-
guaon, 58 Tez. 10, holding mere tenporaiy occupancy doea not make
person actual aettler under statute; IfcCarthy v. Qomei, S5 Tez. 15,
19 S. W. 1001, holding applicant for pre-emption right muat actually
settle Dpon and occupy land.
Under Statate Onl7 TlioBe Occnprlng Idutd aa reaideuee are given
right of pure basing.
Approved in Calvert v. Bamsey, 59 Tez. 49E, Martin v. McCarthy,
7* Tez. 134. 10 8. W. 233, and Swan v. Buaby. 5 Tez. Civ. 66, 24 8. W.
304, all reaffirming nie; Jones v. Hart (Tez. Civ.), 25 8. W. 704, hold-
ing peraon not aettling permanently on land before applieation to
purcbaae waa made not entitled to priority.
Uei« Use of I>and With Mo Intention of Betidence ia not anlEcient
evidence of settlement to entitle perBon to right to purchase land.
Approved in Atkeson v. Bilger, 4 Tez. Civ. 102, 23 8. W. 416, hold-
ing purcbaBer building amall houae and occupying it oceaeionally not
lettler in good faith.
16 Tex. 161-178, NOBVELL ▼. PHILLIPS.
When No Speclflc Error is Aaslgned to charge of court, and no er-
ror of controlling nature is apparent, court will not review charge.
Approved in HoUman v. Honaton etc. B. B., 2 Poaey U. C. 559, re-
affirming rule; Haodel v. Kramer, 1 Tez. Ap. Civ. 473, holding aasign-
loent of crrora muat be apeciflc.
Tboogh Pleading! Do not Warrant Judgment, if appellant ia not
injured thereby, it ia mere irregularity and not ground for reversal.
Approved in Burnett v. Whaley, Z Poaey U. C. 489, holding where
W. bid oft property at sheriff's sale and S. took deed, aale valid.
46 Tex. 182-188, DUBHAM T. SOUTKBBN L. L CO.
Plllag Application for Bemoval of Oanae from state to United States
circuit court, showing good cause, by one authorized to make ap-
plication and filing proper bonda, auspends jurisdiction of state conrt.
Approved in Walker v. Howard, 10 Tez. Civ. 611, 30 S. W. 109Q,
holding federal court haa jurisdiction from filing of application for
removal, but atate court may determine ita gufliciency; Birdaeys v.
Sbaeffer, 37 Fed. S27, holding void order of state court in caae after
application for lemoval filed; KnopQ v. Gilaonite Hoofing etc. Co., 62
Ko. Ap. 287, in cities of third class, filing of remonstrance of majority
owners on street to be improved ousts council's jurisdiction, and
tvithdrawal of remonstrance does not recoufer jurisdiction.
M Tm. 190-207 NOTES ON TEXAS REPOETS. «70
No Appeil LtM from Ordw BeiDOvUig Omum t« federal eoort, waeh
order not beiny final judgment.
Approved in Eleiber v. HeMana*, 66 Tex. 50, 17 8. W. 250, holding
order of federal eonrt lofusing to proceed with eaae is not final jndg-
46 Tax. 190-200, rUKSELL T. OAHDT.
Objecttona to Answara and IntmroffttorlM do not go to form and
manner of taking depositions, and need not be made in writing before
trial.
Approved in Tevii v. Armitrong, 71 Tez. IR, 8 8. W. 135, hold-
ing only objections raised to admission of testimony eonaidered on ap-
Distinguished in Lee v. Stowe, 57 Tex. iSO, holding notice of ab-
jection to interrogatory a* leading necessary; Mills t. Hemdon, 60
Tex. 35S, holding objection to interrogatory in deposition as leading
must be taken before trial.
Qtteatioiu and Anarera EUdUng Ooudoalott of Wltnaas on mHtter of
law are inadmissible, and objection made thereto when deposition is
offered shonld be suBtained,
Approved in Jackson v. Harby, 65 Tex. 715, holding Inadinissible,
question and answer as to intent of parties in transaction; Shifflet
V. Morel I e, SS Tex. 3S8, 4 8. W. 845, holding inadmisaible witness' con-
clusion as to legal effect of papers; Onlf ete. By. v. Shearer, 1 Tex.
Civ. 347, 21 S. W. 134, holding statement as to effect of written con-
tract inadmissible in evidence; Bumham v. Walker, 1 Tex. Ap. Civ.
512, holding opinion or belief of witness as to existence of fraud in-
admissible; Pulcher T. White (Tex. Civ.), 48 8. W. 882, holding
inadmissible opinions of surveyors as to tme location of snrvey. See
note, 36 L. B. A. 64.
46 Tex. 200-204, BOUNTBEE ▼. WAUCEB.
Judgment of Jnstlce'B Oonrt, directing sale of exempt property, how'
ever erroneoas, is not a nullity, and is conclnsive nntil set aside on
appeal and cannot be enjoined.
Approved in Hart v. OTionrke, ISl Ind. 208, 51 N. E. 331, holding
judgment against garnishee not void, though erroneous as to amount
of wages exempted. See notes, 32 L. B. A. 326; 30 L. B. A. 100, 701.
In Suit (or Damages for maliciously suing out snd levying writ of
seqaestration, plaintiff should plead and show affidavit made to obtain
writ and negative its truth.
Approved in Wilkinson v. Stanley (Tex. Civ.), 43 8. W. flOT, re-
affirming rule; Wilkinson v. Stanley (Tex. Civ.), 43 S. W, 609, holding
judgment against sureties on sequestration bond improper unless bond,
afildavit and writ, with return thereon, introduced in evidence.
46 Tex. 204-207, FAVEE t. BOBIKSON.
Judgment by Default Agftlnst "TKvn" is not anpported by petition,
citation and service on "Favers."
Approved in Selman v. Orr, 75 Tex. 530, 12 S. W. 697, holding plead-
ings being in name of "Orr & Lindsiev," judgment against "Orr A
Lindsey" reversible; Carhart v. Britt, 3 Tex. Ap. Civ. 447, holding
return showing service on "Cawbart" will not support judgment
against "Carhart"; Milontree v. State, 30 Tex. Ap. isa, 16 S. W. 765,
holding fatal variance between "Seaffers" and "Seaforth," or "Sea-
871 NOTES ON TEXAS EEP0ET8. 48 Tex. 207-211
fort" in indietmeiit; WaidBmeyer v. Brjan, 21 Tex. Civ. 429, 53 S. W.
353, holding default judgmeot void where party cited by name Dot
her own; Booth v. Holmes, 2 Posey U. C. 233, holding citation issued
tft "J. W. Booth" Tsturned served on "W. Booth," inBufBeient; Galves-
ton etc. By. V. Morris, B4 Tex. SOS, 81 S. W. 710, holding material dif-
ference in notice of deposition of "Walters" and "Walter." See note,
100 Am. Bt. Bep. 324, 351.
Distinguished in Townsend t. Bstcliff, SO Tex. 1S2, holding eitntion
issuing for "Townsend," jadgmeot valid though returns show service
on "Town sen."
In Salt on NotM Qlran for FnicliiM Mone^ of Iiuid, petition alleg-
ing execution of notes by vendee it insufficient to support judgment
foreclosing vendor's lien.
Approved in Weeks v. Barton (Tex. Civ.), 31 S. W. 1072, holding,
where deed retains no lien, burden on plaintift to show retention of
vendor's lien.
Wlion Vendor of Land Takes Distinct and Independmt Secorlty for
purchase money, he i^ deemed to have waived vendor's lien on prop-
erty unless he is shown to rely on lien as well as on aeearity.
Approved in Cresap v. Manor, 83 Tex. 4Se, reaffirming rule; Willis
V. Qay, 48 Tex. 469, holding taking note in payment for land raises
rebuttable presumption of waiver of vendor's lien.
46 Tax. 207-211, FOOT. t. CHASE.
CertliLcata of Offlcei Taking Wife's AcknowI«d8in«nt of deed of
trust is conclusive of facts therein stated, in absence of evidence
charging grantees with knowledge of deception and frand of husband
on wife, or misconduct or failure of officer to read and explain deed
Approved in McDannell v. Horrell, 1 Posey TT. C. S20. Council
Bluffs Savings Bk. v. Smith, 59 Neb. 93, 80 N. W. 271, and Kacourek
v. Marak, 54 Tex. 205, 3B Am. Bep. 623, all reaffirming rule; Claflin
V. Harrington, 23 Tex, Civ. 348, 53 8. W. 371, wife's evidence that she
believed instrnment acknowledged was mortgage and not deed abso-
lute is inadmissible; Davis v. Kennedy, 58 Tex. 520, holding certificate
of officer taking wife's separate acknowledgment conclusive of facts
certified to; Miller v. Tturria, 69 Tex. 552, 7 S. W. 207, holding wife
cannot avoid conveyance separately acknowledged for facts unlcnown
to grantee; Webb v. Bumey, 70 Tex. 325, 7 8. W. 843, holding wife's
acknowledgment as certified to conclasive unless facts avoiding it
proved; Coker v. Roberts, 71 Tex. 601, 9 S. W, 667, holding bona fide
purchaser protected though wife imposed upon in making acknowledg-
ment; Wheeiock v. Cavitt. 91 Tex. 882, 66 Am. St. Bep. 923, 45 8. W.
797, holding certificate to married woman's acknowledgment conclu-
sive in favor of innocent vendee; Herring v. White, 6 Tex. Civ. 251,
25 S. W, 1017, holding certificate of acknowledgment conclusive un-
less fraud or imposition with grantee's knowledge slleged; Mcl'sUs
V. Brown (Tex. Civ.), 37 B. W. 785, holding land chargeable with pur-
chase money paid where purchasers without notice of defective ac-
knowledgment by wife; Hagan v. Conn (Tex. Civ.), 40 8. W. 20, hold-
ing wife cannot impeach certificate of acknowledgment where par-
cnasera gave adequate consideration. See notes, 55 Am. Dee. 774, and
54 Am. 8t. Bep. 155.
Parol Evldenoe la Admissible to show that property which receipt
purported to turn over to secure claim was naver is fact received by
person giving receipt.
16 Tex. 211-228 NOTES ON TEXAS BEPOBTS. 672
Approved in Brawn v. Dennis (Tex. Cir.), 30 S. W. 274, reaffirming
rule; Kio Grande B7. t. Annendiaz, 5 Tex. 4S3, 23 8. W. S69, holding
recitals in tiansfei of interest in mortgage maj be contradicted by
parol; Byarg t. Byars, 11 Tex. Civ. 567, 32 S. W. 926, holding parol
evidence insdmiBaible to ahow deed absolute on face to be condi-
16 Tex. 211-212, HENTK™" T. PUOH.
BheilS'B Betnm on Citation lasned to "J. W. H.," showing service
on "J, N. H.," will not support judgment against "J. W. H."
Approved in Booth v. Holmes, 2 Poee^ U. C. 233, holding insuffi-
cient citation issued to "J. W. Booth" and returned served on "W.
Booth."
46 Tex. 213-210, SPENOEB t. UcOABTY'.
Amendment Merely Onrlng Defective Statements In petition includ-
ing defective description of land, sets up no new cause of action, and
defendant is. bonnd to notice flling of such amendment and judgment
bj default may be taken without service thereof.
Approved in Lewis v. Dennis, 54 Tex. 490, and MeConnel v, Foscne
(Tex. Civ,), 24 S. W. S8S, both reaffirming rule.
Where Note Is Set Oat la Original and attached to amended peti-
tion, and promise to paj appears from its face, there can be no vari-
ance when note is offered in evidence.
Approved in Longley v. Caruthers, 64 Tex. 2SS, Bebam v. Ohio, 75
Tex. S9, 12 8. W. 997, and Phoenix Ins. Co. v. Boren, 83 Tex. 98, IS
S. W. 484, all reaffirming rule; Bosle; t. Pease (Tex. Civ.), 22 S. W.
518, holding there is no variance between name alleged in petition
and name in note where petition sets out note.
46 Tex. 215-216, 8IAAN T. BATTE.
Sheriff's Betnm on Citation failing to show, as required by statute,
the day when it was executed, is defective.
Approved in Moore v. Bice, 51 Tex. 2S5, holding defective, return
on citation hy publication not showing date of publication; State Fair
etc. Exposition v. Lyon, 5 Tex. Civ. 384, 24 8. W. 328, holding retam
showing service before suit filed insufficient.
46 Tex. 217-220, aBU'PBTR T. HANKS.
Effect of Vendor's raise Bepresentatlona as to amount of eneam-
brances is not impaired by fact that vendee had notice of encum-
brance and could have ascertained correct amount by inquiry.
Approved in Hall v. Qrayson County Nat. Bank, 36 Tex. Civ. 325,
SI S, W. 767, applying rule to representations of oil company pro-
motor in inducing subscription; Wright v. United States Mtg, Co.
(Tex. Civ.), 42 8. W. 790, holding effect of representation not impaired
by fact that falsity could have been ascertained by inquiry. See note,
37 L. R. A. 604.
46 Tex. 222-228, TBUBHABT t. UcMIOHAEL.
Defendant Bering on Fosaaulon of Otiiers, anterior to his, to make
out ten years' poBBession required by statute of limitations, must show
privity between himself and those on whose possession he reliea
Approved in Datson v. Mobb. 58 Tex. 156, and Henderson v. Beaton,
1 Posey U. C. 31, both reaffirming rule; Garcia v. lUg, 14 Tex. Civ. 186,
73 NOTES ON TEXAS BEPOBT3. 4« Tex. 231-263
7 S. W. 471, koldiDg poweasion of othwa DQAvailiiig aa d«feiiM nnl«ai
rivity ihown.
T«asnt In Cdtunon nuj B«coTar entire tract from one in posaeseion
rithoat title.
See note, 6 L. B. A. (n. a.) 715.
8 Tex. 231-232, BAXTEE ▼. TAKBOBOUGH.
Power of Attorney Embncing Any and All Ziuidi owned by prin-
ipal io atate of Texaa confers power to aell any particular tract.
Approved in Smith v. Weatall, 76 Tex. 512, 13 B. W. 540, holding
Tsnt of all landa inherited from parenta situate in ffivea county auffi-
iently deMrib«a land.
6 Tex. 232-2Sa, HEWITT v. THOUAS.
Wban Flesdlng is ao Amended aa to entitle defendant to notice
hereof, and aerrice thereof ia made by publication, court moat mske
nt and incorporate in record atatament of facta on which judgment
ApproTed in Bums t. Batey, 1 Tes. Ap. Civ. 186, and Chaffee v.
Iryas, 1 Tex. Ap. Civ. 424, both reaffirmiog rule; Hoore t. Bice,
1 Tex. 295, holding defective, return on citation by publication not
bowing date of publication; Stewart v. Anderson, 70 Tex. 599, S
i. W. 300, holding defendant* must be served where amendment is
ttachment proceeding acta up new demand.
Wbere Plaintm and Defendant are Nonieiidanti^ court may »c-
nire jurisdiction under statute authorizing service by publication
rithont seizing property.
Approved in Traylor v. Lide (Tex. Sup.), 7 8. W, 62, holding judg-
lent OB aervice by publication ia good aa againat collateral attack;
;oller V. HoUey, 13 Tex. Civ. 638, 35 8. W. 1075, holding attachment
f land owned by nonresident not necesaary for foreclosure of lien;
lymea v. Sampaon, 74 Tex. 84, 11 S. W. 107S, arguendo.
8 Tex. 236-246, A08TIN ▼. DtTNaAN.
Thongh Soirey baa Been Made and fleld-notes and certificates re-
amed to land office, ten years' possessioa will not give title to land
nleaa claim under survey is abandoned, nor will poBaeBsion of aban-
oned part confer title uader statute of limitations.
Approved in Truehart v. Babcock, 49 Tex. 258, holding limitations
navailable if title in government and land vacant during part of
«riod; Collyns v. Cain, 9 Tex. Civ. 200, 28 8. W. 548, holding poa-
CBSion not sufficient evidence cf title against occupant of part of
ublie domain.
Oonunon-law Bnla Tb&t Owner cannot make valid conveyance of
ind in possesaion of diaseiaor is not recogniied in Texat.
Approved in Pope v. Davenport, 5£ Tex. 218, holding sale by as-
ignee in bankruptcy not void though adverse claimant not party
» proceedings.
6 Tex. 261-263, TDBNEB t. PBEI^Pa
Holder of Junior Mortgaga recorded prior to filing of suit te enforce
rior vendor's lien to which be is not party is not affected by judg-
ment.
Approved in Citisens' Nat. Bank v. Strauss, 29 Tex. Civ. 412, 69
I. W. go, mechanic's lienholder not concluded by foreclosure of prior
lortgage to which he was not party.
2 Tex. Notea — 43
I
46 Tex. 263-284 NOTES ON TEXAS BEPOETS.
674
46 Tex. 263-265, COOK ▼. BOSS.
Case may be Dismissed Under Statute (PaschaVs Digest, article
15,007) when rule has been entered requiring plaintiff to give security
for costs if security is not given as required by statute.
Approved in Prazer v. Moore, 28 Tex. Civ. 430, 67 8. W. 428, motion
to reinstate cause dismissed because of plaintiff's failure to comply
with rule for security for costs refused where no excuse for failure
shown; Posey v. Aiken, 17 Tex. Civ. 45, 42 S. W. 369, holding suffi-
cient where new cost bond is tendered before motion to dismiss acted
upon.
46 Tex. 266-272, SIMMONS ▼. BLANCHABD.
Wbere Husband and Wife Both Die and husband's estate only is
administered upon, administrator's sale of land certificate issued to
husband, being community property, passes legal title thereto from
heirs of both.
Approved in Murchison v. White, 54 Tex. 86, holding valid sale
of community property to pay community debts passes title; Carlcton
V. Goebler, 94 Tex. 97, 58 S. W. 830, holding sale by administrator of
community estate for community debt passes title. See notes, 67 Am.
Dec. 693; 126 Am. St. Bep. 119; 96 Am. St. Bep. 923.
Distinguished in Moody v. Butler, 63 Tex. 211, holding sale by
survivor unless to pay community debts conveys only one-half.
Though Administrator's Sale of Land Certificate issued to husband
is never formally confirmed, but court on administrator's report
thereof orders title to be made to purchaser, purchasers take title
as against wife's heirs.
Approved in Moody v. Butler, 63 Tex. 212, holding confirmation
of sale indorsed on return of sale, but not entered on minutes, suffi-
cient; West V. Keeton, 17 Tex. Civ. 142, 42 S. W. 1036, holding
sufficient confirmation of probate sale written on docket by judge;
Strickland v. Sandmeyer, 21 Tex. Civ. 353, 52 S. W. 88, holding
order of county court appointing administrator de bonis non not
attackable collaterally; Loyd v. Waller, 74 Fed. 607, holding order
directing acceptance of settlement made by administrator sufficient
confirmation of sale.
Miscellaneous. — Cited in Guilford v. Love, 49 Tex. 740, as up-
holding general jurisdiction of county court and shielding its orders
from collateral attack.
46 Tex. 272-284, HAYS ▼. HOUSTON ETC. B. B.
Whether Amendment Should be Allowed after parties announce
themselves ready for trial and court has overruled exceptions to
petition is within discretion of court.
Approved in Moore v. Moore, 73 Tex. 387, 11 S. W. 398, reaffirm-
ing rule; Western Union Tel. Co. v. Goodsey, 4 Tex. Ap. Civ. 185,
16 S. W. 789, holding exemplary damages not allowable where trial
amendment alleges nothing justifying them. See note, 9 L. B. A. 669,
In Suit Against Bailroad for Wrongful Ejectment of x^ssenger,
jury in estimating damages may consider injuries sustained by plain-
tiff in feelings, person, and estate, but they may not consider relative
wealth of plaintiff and defendant.
Approved in So Relle v. Western Union Tel. Co., 55 Tex. 311, 40
Am. Rep. 806, and G. H. etc. Ry. v. Dunlavy, 50 Tex. 260, both re-
affirming rule; Stuart v. Western Union Tel. Co., 66 Tex. 584, 59 Am.
<75 NOTES OK TEXAS BEP0ET8. 46 Tex.272-S84
Rep. 627, 18 8. W. 353; Weatern Union Tel. Co, v. Cooper, 71 Tex. 511,
10 Am. St. fiep. 773, 9 B. W. 599, 1 L, B. A. 728, both holding in jury to
feelings caused by failure to deliver telegram concerning familj, ele-
ment of damage; Texas etc. Ry, v. Woodall, 2 Tei, Ap. Civ. 421, hold-
ing mental suffering may be estimated as basis for actual damage»;
WcBtern Union Tel. Co. v. Henderson, 89 Ala, 519, 18 Am. St. Hep.
154, 7 So. 423, holding mental anxiety element of damage for failing
to deliver telegram concerning sickness; Reaihan v. Wright, 125 Ind.
S45, 21 Am. St. Sep. 257, 25 N. E. 825, 9 L. R. A. 514, holding jury
may consider mental anguish in estimating damages for negligently
keeping corpse; Young v. Western Union Tel. Co., 107 N. C. 378, 22
Am. St. Rep. 890, II S. E. 104C, 9 L. R. A. 669, holding mental anguish
element of damsgcH for failure to deliver telegram concerning wife;
Eeeter v. Western Union Tel. Co., ^ Ohio C. C. 240, holding damages
not allonable for mental anguish alone for failure to transmit tele-
gram. See note, 2 L. E. A. 767.
Distinguished in International etc. Tel. Co. v. SaundcrB, 32 Fla. 439,
14 So. 149, 21 U R. A. 810, holding no recovery for mental suffering
alone from failure to deliver telegram; Western Union Tel. Co. v.
Rogers, 63 Miss, 7S5. 24 Am. St. Rep. 303, 9 So. 825, 13 L. R. A. 859,
holding damages for mental suffering alone not allowable for failure
to deliver telegram; Western Union Tel. Co. v. Ferguson, 157 Ind.
67, 60 N. E. 675, 54 L. R. A. 846, where through defendant's failure
to deliver telegram announcing death of plaintiff's grandmother, be
was unable to attend funeral, he cannot recover for mental anguish;
Connelly v. Western Union Tel, Co., 100 Va. 56, 93 Am. St. Rep. 919,
40 S. E. 620, 56 L. E. A. 663, refusing damage* far mestal suffering
for delay in delivery of telegram.
Exemplary Damages are AllOVaMe in the nature of punishment.
Approved in Texas etc. Ey, v. Woodall, 2 Tei. Ap, Civ. 417, reaffirm-
ing rule; Plannery v. Wood, 32 Tei. Civ. 251, 73 S. W. 1073, where
actual damage for assault on plaintiff's wife and value of goods taken
were (56, which was value of property taken, and $2,344 exemplary
damages, latter were excessive; Flanagan v, Womack, 54 Tei. 50,
holding exemplary damagea being allowable, all evidence enabling
jury to flx them admissible.
EaUioad Oompuiy Is Uable for Exemplaxy Damages -if malioioui
act of agent is ratilled or adopted, if careless in selecting employees
or establishing regulations, or if guilty of fraud, malice, gross oeg-
lience, or oppression.
Approved in G. H. etc. By. v. Donahue, 56 Tex. 167, G. H. etc. Ry.
r. Dunlavy, 56 Tex. 259, 261, Western Union Tel. Co. v. Brown, 58 Tex.
175, 44 Am. Rep. 613, Gulf etc. Ry. v. Moore, 69 Tex. 159, 6 S. W.
633, International etc. Ry. v. McDonald, 75 Tex. 46, 12 S. W. 862,
Tillman v. Adams, 2 Tex. Ap. Civ. 266, Texas etc. Ry. v. Self, 2
Tex. Ap. Civ. 390, Texas etc. Ry. v. Woodall, 2 Tex. Ap. Civ. 418,
Sam Antonio etc. Ey. v. Morgan (Tex. Civ.), 46 S. W. 673, San
Antonio etc. Ry. v. Grier, 20 Tex. Civ. 139, 49 S. W. 149, and
Arkansas Construction Co. v. Eugene, 20 Tex. Civ. 603, 50 S. W.
737, all reaffirming rule; Denison etc. Ry. Co. v. Randell, 29 Tex. Civ;
4G3, 69 S. W. 1015, evidence that conductor on demanding fare and
receiving reply that fare paid, struck and kicked plaintiff repeatedly,
though latter did not attempt to strike, warrants recovery of ex-
emplary damages; Houston etc. Ey. Co. v. Coivser, 57 Tex. 306,
bolding exemplary damajjea not allunable against railroad company
46 Tex. 284-293 NOTES ON TEXAS BEPOBTS. 676
for unauthorized act of agent; Willis v. McNeill, 57 Tex. 477, holding
principal not liable for agent's maliciously suing out attachment
unless participating therein; Daniel v. Western Union Tel. Co., 61
Tex. 458, 48 Am. Bep. 307, holding exemplary damages not allowable
on allegations of negligence in employing incompetent operators;
International B. B. v. Garcia, 70 Tex. 208, 7 8. W. 804, holding rail-
way not liable in exemplary damages for unauthorized malicious act
of agent; Dillingham v. Bussell, 73 Tex. 53, 15 Am. St. Bep. 758, 11
S. W. 141, 3 L. B. A. 634, holding railway not liable for use of un-
necessary force by conductor in removing passenger; Winnt v. Inter-
national etc. B. B., 74 Tex. 35, 11 S. W. 908, 5 L. B. A. 172, holding
railway not liable for malicious acts of agents dona without authority
and not ratified; Gulf etc. By. v. York, 74 Tex. 368, 12 S. W. 70,
holding charge that railway liable for malicious negligent act of em-
ployees, unsupported by pleadings, erroneous; G, H. etc. B. B. v.
Davis, 1 Tex. Ap. Civ. 59, holding railway not liable for exemplary
damagea for malicious killing of animal by engine unless authorized;
Missouri etc. By. v. Behee, 2 Tex. Civ. 110, 21 S. W. 385, holding
malice provable by showing falsity and repetition of publication;
Texas etc. By. v. Bamhart, 5 T«x. Civ. 604, 23 S. W. 802, holding
railroad company in hands of receiver not liable for failure to feed
stock in transit; Thompson v. Bell, 11 Tex. Civ. 2, 32 S. W. 143,
holding principal not liable for agent's malicious attachment unless
participating therein; Gilliam v. South etc. Ala. B. B., 70 Ala. 270,
holding railway not liable for agent's acta beyond scope of duty.
See notes, 13 Am. Dec. 596; 62 Am. Dec. 385, 387; 42 Am. Bep. 38;
7 Am. St. Bep. 535; 1 L. B. A. 682.
Distinguished in Zeliff v. Jennings, 61 Tex. 470, holding husband
liable in damages for slander by wife.
46 Tex. 284-293, JONES ▼. BX7BGETT.
Identity of Land Sued for is Sufficiently Established where it forms
part of block of surveys, corners of which are known, and from
adjacent surveys position of land sued for is ascertained.
Approved in Band v. Oartwright, 82 Tex. 403, 18 S. W. 796, holding
known corners prevail where course is same and distance different.
Unmarked Lines Being Bun by Course and Distance from actual
comers and stream is found where called for, but of different name,
call for stream is deemed mistake and course and distance govern.
Approved in Woods v. Bobinson, 58 Tex. 661, holding boundaries of
survey calling for adjacent surveys determined by calls of such sur*
veys; Sloan v. King, 33 Tex. Civ. 542, 77 S. W. 51, calls for course
and distance prevail over those four landmarks where latter shown to
be called for by mistake; Goodson v. Fitzgerald, 40 Tex. Civ. 626,
90 S. W. 900, holding under facts that call in one grant for marked
corner and line of another grant should yield to call for distance.
See note, 129 Am. St. Bep. 994.
Calls for Natural Objects will not, under all circumstances, control
other calls.
Approved in Linney v. Word, 66 Tex. 29, 17 S. W. 246, reaffirming
rule; Castleman v. Pouton, 51 Tex. 88, holding locality of corner
of survey mixed question of law and fact; Jones v. Andrews, 62 Tex.
660, holding jury determine lines of survey from most certain calls;
Koepsel v. Allen, 68 Tex. 447, 4 S. W. 856, holding lines actually
run when ascertainable true limits of survey; Stadia t* Hein, 76
«7T NOTES ON TEXAS EEPOBTS. M Te«. 293-2B9
Minn. 502, 79 N. W. 538, holding boundariei are to be fixed bj caU*
which seem moBt reliable. See note, 30 Am. Dec. 741.
Patent la not Invalidated bj anrrejor'a having adopted field-notes
of former incorrect survey.
Approved in Thomson v. Honston etc. By., 68 Tex. 397, 4 S. W, '
832, holding snrTsyor may adopt lines of former survey; Huff v.
Crawford, 89 Tex. 222, 34 S. W. tf09, holding survey not invalidated
becauBB date by which location made was incorrect; Bacon v. State,
E Tex. Civ. 70S, 21 S. W. 1S2, holding survey may be made from
office data, without actually making survey; Lubbock v. Binns, 20
Tex. Civ. 410, SO 8. W. 85, holding patentees have title, though land
not within surveys under certificate. See note, 94 Am. Dec. 313.
Wtaon Interruwr Did not Appeal, court will not consider errors
aasigned by bim.
Approved in Fatteraon t. Boger», 53 Tei. 4SS, Assignments of erior
by intervener against nonsippealing defendant not considered unless
appeal taken; Qillespie v. Crawford (Tex. Civ.), 42 S. W. 625, holding
person not perfecting appeal cannot assign errors against codefendant,
and is treated as not complaining of judgment; Anderson v. Sitliman,
92 Tex. 567, SO 8. W. 57B, holding nonappealing defendants cannot
assign errors against plaintiff.
Miscellaneous. — Cited in Lumpkin v. Draper (Tex. Sup.), 18 8. W.
1062, as holding ebarge in conformity with general doctrines of case
40 Tflz. 203-299, 26 Am. Bep. 207, BSLOHEB v. WBAVEBw
Certlflcate of Ofllc«r to PiiVT Examination of Wife, who signs deed
with husband, showing substantial compliance with statute, and recit-
ing that wife aigued deed "without any bribe, threat, or eompulaioo
from husband," is sulficient.
Approved in Coombes t. Thomas, 57 Tex. 322, and Johnson v.
Thompson (Tex. Civ.), 50 S. W. 10S7, both reaffirming rule; North-
western etc. Bank v. Bauch, 5 Idaho, 756, 51 Pae. 765, and Solyer
V. Somanet, 52 Tex. 567, both holding certificate of wife's privy
acknowledgment showing compliance with statute sufficient; Hughes
V. Wright, 100 Tei. 513, 123 Am. St. Bep. 827, 101 S. W. 790, 11 L.
B. A. (n. s.) 643, certificate of acknowledgment of deed of A and
B showing A and B appeared before officer and acknowledged that
"he executed same" is sufficient acknowledgment by both; Uast«rson
V. Harris, 37 Tex. Civ. 148, 83 8. W. 429, declaration in acknowledg-
ment of married woman's deed that she consented that deed be re-
corded is equivalent to statement that she did not wish to retract it;
Tieman v. Cobb, 35 Tex. Civ. 290, 80 8. W, 251, certificate of acknowl-
edgment by married woman that ebe waa separately examined apart
from husband, and instrument being explained to her acknowledged
it to be her own act, and that she did not wish to retract it, does not
show acknowledgment that she signed deed; Carton v. Uudson-
Eimberly Pub. Co., S Okl. 633, 58 Pac. 948, upholding acknowledg-
ment of mortgage though blank for word "tlieir" not filled in; Deseret
Nat- Bank v. Kidman, 25 Utah, 3S8, 95 Am. St, Bep, S56, 71 Pac. 876,
upholding sufficiency of acknowledgment of chattel mortgage taken in
connection with affidavit immediately preceding acknowledgment, to
show compliance with statute requiring certificate to show that
mortgagor known to notary; Ruleman v. Pritchett, 56 Tex. 485, such
certificate must show that instrument was exflainad to her by officer.
46 Tex. 303-316 NOTES ON TEXAS BEPOBTS. 678
.her acknowledgment of it as her act, and of her wish not to retract
it; Mullins v. Weaver, 57 Tex. 6, holding omission to certify that wife
"sealed and delivered'' deed will not invalidate privy acknowledg-
ment; Wilson V. Simpson, 80 Tex. 289, 16 S. W. 43, holding sufficient
certificate of wife's privy acknowledgment substantially complying
with statute sufficient; Durst v. Daugherty, 81 Tex. 653, 17 S. W. 389,
holding certificate of privy acknowledgment showing officer's inten-
tion complying with statute sufficient; Gray v. Kauffman, 82 Tex. 69,
17 S. W. 515, holding deed admissible, certificate showing that wife,
by privy examination, acknowledged deed; Norton v. Davis, 83 Tex.
36, 18 S. W. 431, holding certificate of acknowledgement valid where
words equivalent to statutory words used; Thompson v. Johnson, 84
Tex. 553, 19 S. W. 785, holding certificate of acknowledgment show-
ing that wife willingly signed deed sufficient; Kerr v. Murrell, 1 Tex.
Ap. Civ. 508, holding clerical omission of word will not invalidate
appeal bond from justice's court; Stinnett v. House, 1 Posey XT. G. 487,
holding certificate of authentication of deed substantially complying
with statute sufficient; McDonnell v. Horrell, 1 Posey U. C. 526, 527;
holding certificate of wife'v privy acknowledgment complying with
statute sufficient; McKellar v. Peck, 2 Posey U. C. 194, holding privy
acknowledgment necessary to conveyance by wife of land; Clark v.
Groce, 16 Tex. Civ. 456, 41 S. W. 670, and Bork v. Shields, 16 Tex.
Civ. 642, 42 S. W. 1033, both reaffirming rule; Black v. Garner (Tex.
Civ.), 63 S. W. 920, holding deed void, certificate of wife's acknowl-
edgment not showing that she willingly signed same. See notes, 41
Am. Dec. 178; 41 Am. Dec. 182, 183; 108 Am. St. Bep. 532, 534.
Distinguished in Blair v. Sayre, 29 W. Va. 610, 613, 2 S. E. 100,
102, holding certificate of acknowledgment of wife's deed that "she
acknowledged that she executed, etc.," insufficient.
Unintenticmal Use of One Word for another by officer taking mar-
ried woman's acknowledgment is immaterial where mistake apparent
from entire certificate.
See note, 108 Am. St. Bep. 572, 573.
Statutory Bequisites of Certificate of acknowledgment by married
woman stated.
Approved in Estes v. Turner, 30 Tex. Civ. 368, 70 fi. W. 1009, cer-
tificate of acknowledgment of married woman's deed reciting that
she "being asked separately says she signed deed with her own full
will without being forced or compelled by her husband," is insufficient.
46 Tex. 303-316, GANNON ▼. McDANXEI..
Presentation and Allowance by Administrator of Notes Alone will
be sufficient to authorize suit to foreclose mortgage.
Approved in Lanier v. Taylor (Tex. Civ.), 41 S. W, 517, holding
tender to administrator of claim and unsigned affidavit is not suffi-
cient presentation of claim under statute; Sutherland v. Elmendorf,
24 Tex. Civ. 139, 57 S. W. 891, holding allowance of claim of mort-
gage will not estop foreclosure and sale under mortgage.
Objection That Affidavit Proving Up Notes for allowance and
approval was made by person not party nor agent of party to notes is
not available in collateral proceeding.
See notes, 65 Am. Dec. 121, 122.
Assignee of Note Secured by Lien may enforce lien.
Approved in Toullerton v. Manchke, 11 Tex. Civ. 150, 32 S. W.
239, and Bates v. Childers, 4 N. M. (John.) 352, 5 N. M. (Gild.) 76,
<79 NOTES ON TBXA3 EEPOBTS. M Tex. 316-330
20 Pae. ISB, Iwtli reaffirmiiig rule; Paris Exchange Bk. y. Beard, 40
Tex. 3<n, holding purchase monej aatea not entitled to preference
accoiding to priority of maturity; Eylar v. Eylar, 80 Tex, 322, hold-
ing person advancing money to pay lien on hoineeteBd subrogated
lo lieiUtolder's rights; McCamly v. Waterhause, BO Tei. 343, IS B.
W. 20, holding assignment of vendor's lien note carriea lien; Dar-
row V. Summerhill, 93 Tex. 103, 77 Am. St. Bep. 839, 53 S. W. GB3,
holding person paying off jndment subrogated to rights of judgment
creditor; Abernethy y. Bass, 9 Tex. Civ. 243, 29 S. W, 399, holding
vendor retaining lien traosferriog note, transferee takes superior title
to Uod. See notes, 62 Am. D«e. 512; 62 Am. Dee. 539; 70 Am. Dec.
331; 76 Am. Dec. 76.
AMignae of Kotos Sacnrod by Hoitgago on property of estate may
enforee lien in eounty court nnless good ground for bringing suit in
district court is shown.
Approved in UcCormiek v. McNeel, S3 Tex. S3, holding decree of
district court against administrator ordering sale of land to pay note
error; Bogers v, Kennard, 51 Tex. 41, holding district court cannot
order sale of property for debts of estate pending administration;
Western Mortgage ete, Co, v. Jackman, 77 Tex. 625, 14 8. W. 306,
holding administrator's refnsal to tecogoise mortgage lien does not
authorize suit in district court.
Distinguished in George v. Ryon, 94 Tex. 321, 60 8. W. 428, hold-
ing district conrt has jurisdiction to determine validity of deed of
trust after claim rejected.
Pnreliaaar Olvlng Hotaa for Pntcbasa Price does not acquire title
to land, bnt titJe remains in vendor in trust for assignee of notes.
Approved in White v. Cole, 87 Tex. 502, 29 8. W. 759, holding
where vendor transfers land to holder of purchase money note, latter
takes superior title; Dixon v. National Loan etc. Co. (Tex. Civ.), 40
8. W. 544, holding loan company advancing money to pay vendor's
lien notes subrogated to rights of bolder of notes.
Where Different Persons Hold Liana upon same land, all should
be made parties, when known, in suit to foreclose any one of liens.
Approved in Nix v. Cardwell, 2 Posey XT. C. 268, and Tidwell v.
Starr (Tex Civ.), 42 8, W. 779, both reaffirming rule; Wood v. Lough-
rniller, 4S Tei- 205, holding in suit to enforce vendor's lien, vendee's
grantees properly made parties; Moore v. Ingram, 2 Posey tJ. C. 361,
holding suit on one purchase money note leaves holders of others not
made parties unaffected.
Lien Is not tiOst by Brlngmg Suit oa Notes withont including lien.
Approved in Low v. Tandy, 70 Tex, 748, 8 8. W. 621, holding suit
on note without foreclosing mortgage leaves liability of land un-
affected.
46 Tex. 316-330, BOASD t. TEXAS ETC. BT.
Bondlioldera are Necesaary Parties In Suit by taxpayers to annul
proceedings of county court autlioriEing issuance of county bonds and
to enjoin collection of tax to pay interest thereon.
Approved in Dwyer v. Hackworth, 57 Tex. 251, King v. Commis-
sioners' Court, 10 Tex. Civ. 115, 116, 30 S. W. 25S, 259, Stallcup v.
Tacoma, 13 Wash. 152, 52 Am, St. Bep. 32, 42 Pac. 514, and Bren-
ham V. German-American Bk., 144 U. S. 188, 12 Sup. Ct. Bep. 564, 36
L. 39S, all reaffirming rule; Boescb v. Byrom, 37 Tex. Civ. 39, 83 8. W.
20, applying rule to school bonds; Buie v. Cunningham (Tex. Civ,), 29
46 Tex. 330-337 NOTES ON TEXAS BEPORTS. 680
S. W. 804, holding owners of county bonds necessary parties in suits
to declare bonds void; State ▼. Metschan, 32 Or. 381, 46 Pac. 792, 41
L. R. A. 692, holding owner of county or state warrant necessary party
in suit to enjoin its payment. See note, 3 L. R. A. (n. a.) 257.
Lis Pendens is Generally Held to Operate as Notice from service of
subpoena and filing of bill.
Approved in Obencliain v. Reekes, 1 Tex. Ap. Civ. 544, reaffirming
rule; Smith v. Gassidy, 73 Tex. 165, 12 S. W. 16, holding purchaser
pendente lite after publication of citation chargeable with notice.
Overruled in Allen v. Pierson, 60 Tex. 608, holding lis pendens
not notice from filing of petition where citation not served.
County Bonds must be Treated as Oonunerclal Paper and the holders
entitled to all privileges and immunities attaching to negotiable in-
struments, and are not within the rule relating to lis pendens.
Approved in Gannon v. Northwestern Nat. Bk., 83 Tex. 276, 18 S. W.
574, holding holder of negotiable note for purchase money unaffected
by lis pendens; Adoue v. Tankersleif (Tex. Civ.), 28 S. W. 347, hold-
ing pendency of foreclosure suit not notice to 'holder of note for rent
that equities of note are affected by suit; Buchanan v. Wren, 10
Tex. Civ. 570, 30 S. W. 1082, holding doctrine of notice by lis
pendens inapplicable to negotiate instruments; Farmers' etc. Nat.
Bk. V. Waco etc. Ry. Co. (Tex. Civ.), 36 S. W. 135, holding doctrine
of lis pendens inapplicable to bonds not due; Peck v. Hempstead, 27
Tex. Civ. 84, 65 S. W. 655, holding municipal bonds negotiable in-
struments.
46 Tex. 330-337, FLANAGAN ▼. BOGGESa
Erroneous Admission of ZSrldence is ground for reversal only when
party complaining was injured thereby.
Approved in Hitson v. State Nat. Bank (Tex. Sup.), 14 S. W. 993,
refusing to reverse judgment for erroneous admission of evidence
where appellant voluntarily testified on same subject.
Assignment That Court Erred in Its Charge is too general to re-
quire attention.
Approved in Brooks v. Price, 2 Posey U. C. 121, and Campbell
V. H. & T. etc. R. R., 2 Posey TJ. C. 475, both reaffirming rule; Han-
del V. Kramer, 1 Tex. Ap. Civ. 473, holding assignment of errors
must specifically point out errors.
Tax Deed Describing Land as "six hundred and twenty acres of
headright of David Brown, situate about twelve miles north of Hen-
derson, in neighborhood of Belleview," is sufficient under statute.
Approved in Bowles v. Beal, 60 Tex. 324, reaffirming rule; Knowles
T. Torbitt, 53 Tex. 558, holding description apparently covering whole
tract sufficient; Gresham v. Chambers, 80 Tex. 548, 16 S. W. 327,
holding admissible deed purporting to convey entire Barker league;
Tarlton v. Kirkpatrick, 1 Tex. Civ. 113, 21 S. W. 407, holding deed
describing whole of land in given survey sufficient; McCurdy v.
Locker, 2 Tex. Civ. 222, 20 S. W. 1110, holding description in deed
sufficient if external objects identify land; Slack v. Dawes, 6 Tex.
Civ. 522, 22 S. W. 1053, holding deed sufficient if not disclosing that
land conveyed is part of larger tract; Hodges v. Ross, 6 Tex. Civ.
440, 25 S. W. 976, holding description "entire survey number 118,
of 738 acres, etc.," sufficient; Blackburn v. McDonald, 1 Posey U. C.
357, 359, holding grantor owning given number of acres, deed to that
amount conveys title; Minor v. Lumpkin (Tex. Civ.), 29 S. W. 799,
881 NOTES ON TEXAS REPOETS. 43 Tex. 338-345
holding description ■aSeieat where other evidence shone intention to
convey whole aurvey; Coi v. Euet (Tex. Civ.), 29 S, W, 8M, holding
extrsneoDi evidenee admiBsible to identify land described as certain
tract in state about twelve miles from Fredericksburg, five hundred
ures; Buchanan v. Park (Tei, Civ.), 36 S. W. 808, holding probate
order describing land as three hundred and twenty acres located as
beadright of decedent not void for insufficiency of description; Piar-
soD V. Sanger (Tei. Civ.), SI 8. W. 870, holding deeds conveying
indefinite part of larger-tract insnfficient to pass grantor's title; Cox
V. Hart, 145 U. S. 388, 12 Sup. Ct. Bep. 967, 36 L. 746, holding deed
not void for uncertainty where land can be identified.
Distinguished in Norris v. Hunt, 51 Tez. 616, holding deed describ-
ing land as part of larger tract void for uncertainty.
Tftx Deed on Ita Faco Giving Snfacient DeacrlptlDn of lAOd con-
veyed, in absence of evidence showing latent ambiguity, satisfies
statute of limitations.
Approved in Coyle v. Franklin, 54 Fed. 646, 21 L. B. A. 289, re-
afSrming rule; Hunton v. Nichols, 55 Tez. 230, holding, though deed
be defective, it may be available to support defease of limitationis;
Henning v. Wren, 32 Tei. Civ. 546, 75 8. W. 910, record ot deed in
which conveyance of land out of Dsvid Wilson survey was erroneously
recorded as Daniel Wilson, description being insufficient to identify
land without name of aurvey, not recordation satisfying statute of
limitations; Harber v. Dycbes (Tex. 8up.), 14 S. W. 580, holding tax
deed, to support limitations, must contain description of land on its
face; Schleicher v. Gatlin, 85 Tex. 277, 20 8. W. 123, holding other
facts existing, deed by person without power or right to convey sup-
ports statute. 8ee note, 76 Am. Dee. 57.
Purdiaear Under Tkz Deed has no adverse possession against
claimants where they offer to repay amount paid for land at tax sale
knd purchaser retesed to take it and postponed settlement.
Approved in Teal v. Terrell, 58 Tex. 262, holding limitation runs
in favor of cotenant only when adverse poseession clearly established;
Carter v. La Grange, 60 Tex. 638, holding husband's declarations as
to character of possession admisaible, wife claiming by limitation;
Garcia v. Illg, 14 Tex. Civ. 488, 37 8, W. 473, holding acts of coten-
ant not known by other cotenant insufficient to support limitations.
Objact of Stfttata B«t[nlrli)K BeglBtration of Deed to enable possei-
ser to avail himself of limitations is to give notice to owner of claim
under deed.
Approved in Weisman v. Thomson (Tex. Civ.), 78 S. W. 732, where
one is in possessioa of land claiming by adverse possession but hold-
ing under recorded deed made to another, though for his benefit,
neither can compute time of such possession as part of time under
Bev. Stats. 1895, art. 3342.
46 T«X. 33»-346, WATT t. WHITE.
Where Injunction hjul Issued restraining sale of land under claim
established by defendant in injunction suit, sale ordered upon bond
being given to secure plaintiff in injunction suit not void.
Approved in Lowell v. Ball, 58 Tex. 567, holding supreme court,
having directed entry of judgment by district court, will not review
its action.
46 Tex. 345-371 NOTES ON TEXAS EEPORTS 682
46 Tex. 845-361, MASKS Y. HILL.
Uncoxidltional Land Certificate, no matter in whose name issued,
is part of assets of estate of head of family.
Approved in Rogers v. Kennard, 54 Tex. 35, holding bounty war-
rant issued to deceased soldier assets in hands of administrator;
Todd y. Masterson, 61 Tex. 622, holding bounty warrants consrtitute
part of assets of estate of deceased grantee; Boone v. Hulsey, 71
Tex. 189, 9 S. W. 538, holding grant under colonization laws hus-
band's separate estate though subsequently inarrying; Santana Live-
stock etc. Co. y. Pendleton, 81 Fed. 790, holding grant to husband
under colonization laws assets of his estate.
Under Statute Authorizing Issuance of Unconditional Certificate
to widow's legal heirs, etc., such heirs, etc., stand as representatives
of deceased. '
Approved in Hodge v. Donald, 55 Tex. 354, holding Peters' colony
certificate, wife dying before act of 1850, community property.
After Lapse of Ten Years, without any act in .administration of
estate, administration is deemed closed.
Approved in Duncan v. Veal, 49 Tex. 611, holding costs without
other debts form no basis for administration; Harris v. Shafer (Tex.
Civ.), 21 S. W. 113, holding fact that seven years had elapsed before
filing inventory does not show lapse of administration. See notes,
65 Am. Dec. 186, and 67 Am. Dec. 693.
Distinguished in Branch v. Hanrick, 70 Tex. 734, 8 S. W. 540, hold-
ing act of August 15, 1870, abrogates rule presuming administration
closed after fixed period; Main v. Brown, 72 Tex. 507, 508, 13 Am.
St. Rep. 825, 10 S. W. 574, holding motion to compel accounting by
administrator not barred by nonaction in probate court.
County Courts may Dispose of Estates only as authorized by
statute.
Approved in Paul v. Willis, 69 Tex. 266, 7 S. W. 359, holding pur-
chaser under void administration not protected. See note, 86 Am.
Dec. 653.
46 Tex. 361-356, MUBRAY ▼. BBOUGHTON.
Constitutional Provision Prohibiting Special Law is designed to
limit legislative power and require that change of venue shall be
judicial act under general law.
Distinguished in Shaw v. Cade, 54 Tex. 312, holding court granting
changing of venue shall determine which is nearest county.
46 Tex. 356-371, 26 Am. Bep. 272, TEXAS ETC. BY. ▼. MUBPHY.
Bailroad Company Formed by Consolidation of Two Ballroads is
responsible for damages caused by constituent company.
Approved in Indianola v. Gulf etc. By., 56 Tex. 599, and Indianola
B. B. V. Fryer, 56 Tex. 617, both reaffirming rule; Gulf etc. By. v.
Hutcheson, 3 Tex. Ap. Civ. 122, holding consolidated railroad may
be sued for debts of its constituents; Proctor v. San Antonio etc.
By., 26 Tex. Civ. 149, 62 S. W. 938, holding writ of error alleging
dissolution of street railroad and formation of successor makes suc-
cessor party thereto; Indianola v. Indianola B. B., 2 Posey U. C. 340,
holding consolidated company liable for contracts and liabilities of
constituent companies. See notes, 89 Am. St. Bep. 639; 23 L. B. A.
234.
4583 NOTES ON TEXAS EEP0ET8. 46 Tex. 356-371
Plaintiir In Suit for Damages Against Railroad must show injury
produced hy defendant's negligent acts under circumstances not
developing contributory negligence on his part.
Approved in Houston etc. By. v. Cowser, 57 Tex. 302, Murray v.
Oulf etc. By., 73 Tex. 5, (B, 11 S. W. 126, San Antonio etc. By. v.
Bennett, 76 Tex. 155, 13 8. W. 320, Gulf etc. By. v. Shieder, 88 Tex.
161, 30 S. W. 904, 28 L. B. A. 538, Missouri etc. By. v. Peay, 7 Tex.
Civ. 402, 26 S. W. 769, and Hickman v. Kansas City etc. B. B., 66
Miss. 156, 5 So. 225, all reaffirming rule; H. & T. etc. By. v. Bichardn,
59 Tex. 376, holding demurrable petition for damages showing plain-
tiff guilty of contributory negligence; Dallas etc. By. v. Spiker, 61
Tex. 430, 48 Am. Bep. 299, reaffirming and applying rule to burden
of proof in similar case; Douglas v. Texas etc. By., 63 Tex. 567,
holding petition need not allege lack of contributory negligence where
facts negative it; Brown v. Sullivan, 71 Tex. 475, 10 S. W. 289, hold-
ing defendant relying upon contributory negligence must allege and
prove it; Gulf etc. By. v. Shieder (Tex. Civ.), 26 S. W. 512, holding
where plaintiff introduces no evidence showing want of due care,
burden of proving contributory negligence is on defendant; Gulf
etc. By. V. Shieder, 88 Tex. 162, 30 S. W. 905, 28 L. B. A. 538, hold-
ing burden of proof on defendant to establish contributory negli-
gence; St. Xiouis etc. By. v. Denny, 5 Tex. Civ. 367, 24 S. W. 321,
holding servant seeking damages must prove negligence of master;
Dallas Traction By. v. Hurley, 10 Tex. Civ. 251, 31 S. W. 75, holding
correct charge that plaintiff must show lack of negligence on his
part; Gulf etc. By. v. Finley, 11 Tex. Civ. 72, 32 S. W. 54, holding
burden of proof on defendant to show contributory negligence; Lum-
kins V. Coates (Tex. Civ.), 42 S. W. 582, holding any defense except
limitations provable under plea of not guilty in trespass to try title;
Texas etc. By. v. Black, 23 Tex. Civ. 126, 57 S. W. 334, holding peti-
tion showing contributory negligence plaintiff must rebut it; Betram
V. People's By., 154 Mo. 663, 665, 55 S. W. 1047, 1048, holding person
boarding moving car and not taking seat immediately guilty of con-
tributory negligence; Sheff v. Huntington, 16 W. Va. 317, holding
burden of proof of contributory -negligence on defendant.
Distinguished in Texas etc. By. Co. v. Beagan, 118 Fed. 818, 55
C. C. A. 427, where in action for death of fireman in collision defend-
ant charged deceased guilty of contributory negligence in failing to
give engineer proper signal and that such failure caused collision,
burden of proof thereof on defendant.
Negligemce Is Quality Attaching to Acts Dependent on, and arising
out of, relative duties of parties concerned, and is fact to be found
^7 jury.
Approved in International etc. B. Co. t. Edwards, 100 Tex. 24, 93
8. W. 106, one walking along highway at night approaching rail-
road crossing who passed thereon without looking for train, though
its light visible for a mile, cannot excuse failure to look by proof
that crossing signals not given; Frugia v. Texarkana etc. By. Co.,
36 Tex. Civ. 649, 82 S. W. 815, where engine running at prohibited
speed and bell not ringing nor headlight burning, it was for jury to
say whether deceased negligent in failing to look and listen before
going on track; Bering Mfg. Co. v. Femelat, 35 Tex. Civ. 41, 79 S. W.
872, applying rule in action for injuries to minor employed in wood-
working shop by getting hand caught in circular saw. See note,
39 Am. Bep. 511.
46 Tex. 356-371 NOTES ON TEXAS BEPORTS. 684
XTnder Statute Court must not Charge on weight of evidence, and
qneetions of fact must be decided hy jury alone.
Approved in Houston etc. B. B. v. Bandall, 50 Tex. 260, Houston
etc. B. B. V. Parker, 50 Tex. 345, Galveston etc. B. B. v. Le Gierse,
51 Tex. 202, Texas etc. By. v. Wright, 62 Tex. 518, Eames v. T. &
N. O. By., 63 Tex. 665, Bowland v. Murphy, 66 Tex. 536, 1 S. W. 659,
Chatham v. Jones, 69 Tex. 746, 7 S. W. 601, Missouri etc. By. v. Lee,
70 Tex. 501, 7 S. W. 859, Gulf etc. By. v. Greenlee, 70 Tex. 562, 8
S. W. 131, Texas etc. By. v. Hill, 71 Tex. 459, 9 S. W. 353, Brown v.
Sullivan, 71 Tex. 476, 10 S. W. 290, Kansas etc. By. v. Dorough, 72
Tex. Ill, 112, 10 S. W. 713, Campbell v. Trimble, 75 Tex. 271, 12
S. W. 864, Dillingham v. Parker, 80 Tex. 573, 16 S. W. 336, Gulf etc.
By. V. Pendry, 87 Tex. 557, 47 Am. St. Bep. 127, 29 S. W. 1040,
Garteiser v. Galveston etc. By., 2 Tex. Civ. 235, 21 S. W. 633, Dargan
V. Pullman Palace Car Co., 2 Tex. Ap. Civ. 610, San Antonio etc. By.
V. Long, 4 Tex. Civ. 500, 501, 23 S. W. 500, Galveston etc. By. v.
Briggs, 4 Tex. Civ. 519, 23 S. W. 504, Campbell v. Goodwin (Tex.
Civ.), 26 S. W. 865, Gulf etc. By. v. Downman (Tex. Civ.), 28 S. W.
924, Houston etc. By. v. Gaither (Tex. Civ.), 35 S. W. 179, Missouri
etc. By. V. Sparks (Tex. Civ.), 35 S. W. 746, Missouri etc. By. v.
Hanson, 13 Tex. Civ. 555, 36 S. W. 290, Gulf etc. By. v. Wagley, 15
Tex. Civ. 314, 40 S. W. 540, Bennett v. Missouri etc. By., 11 Tex.
Civ. 430, 32 S. W. 837, Johnson v. Baltimore etc. B. B., 25 W. Va.
567, and Townley v. Chicago etc. By., 53 Wis. 633, 11 N. W. 57, all
reaffirming rule; Smith v. Buffalo Oil Co., 41 Tex. Civ. 271, 91 S. W.
384, holding evidence in action by servant for personal injuries does
not conclusively show contributory negligence; Houston etc. B. Co.
V. Bryant, 31 Tex. Civ. 485, 72 S. W. 887, not negligence per se
for railroad to fail to furnish passengers with seats and to allow
them to board car where there are not enough seats for all; Brandon
V. Gulf City etc. Mfg. Co., 51 Tex. 127, holding question of negligence
should be submitted to jury under proper instructions; Houston etc.
B. B. V. Miller, 51 Tex. 275, holding erroneous charge that if jury
satisfied of certain facts, railroad was guilty of negligence; Galves-
ton etc. B. B. V. Delahunty, 53 Tex. 212, holding erroneous charge
withdrawing question of negligence from jury; G. H. etc. By. v
Smith, 59 Tex. 407, holding, in absence of statute, question of negli-
gence is for jury; International etc. By. v. Ormond, 64 Tex. 489,
holding what party injured should have done under circumstances
question for jury; T. & P. By. v. Best, 66 Tex. 118, 18 S. W. 225,
holding whether person guilty of contributory negligence question
for jury; St. Louis etc. By. v. Finley, 79 Tex. 88, 15 S. W. 268, hold-
ing railway's means for alighting from car, and use of due care,
question for jury; Texas etc. By. v. Kane, 2 Tex. Ap. Civ. 27, hold-
ing erroneous charge upon weight of evidence and material issue;
Campbell v. Ellsworth (Tex. Sup.), 20 S. W. 120, holding it is error
to charge that any facts constitute negligence unless made so by
statute; Boyd v. Burkett (Tex.* Civ.), 27 S. W. 224, holding questions
of negligence and contributory negligence to be determined by jury;
Galveston etc. By. v. Knippa (Tex Civ.), 27 S. W. 731, holding
charge, in action for burning grass, that jury might consider other
burns and sparks emitted from engine, is erroneous; Born v. Texas
etc. By. (Tex. Civ.), 39 S. W. 171, holding erroneous charge that
burden of proving contributory negligence rests on defendant unless
appearing from plaintiff's own "negligence"; St. Louis etc. By. y.
685 NOTES ON TEXAS EEPOETS. 46 Tex. 371-376
Caseday (Tex. Civ.), 40 S. W. 200, holding charge of court must leave
jury to determine what facts constitute negligence; St. Louis etc.
By. V. Gill (Tex. Civ.), 55 S. W. 387, holding charge is erroneous
which groups certain facts and instructs that they constitute negli-
gence; Galveston etc. By. v. English (Tex. Civ.), 59 S. W. 627, hold-
ing charge upon weight of evidence cannot be sustained; Keating
etc. Machine Co. v. Erie City Iron Works (Tex. Civ.), 63 S. W. 547,
holding court cannot comment in presence of jury on weight of oral
testimony. See note, 2 Am. St. Bep. 546.
Wlien Statute Imposei Duty on Railroad in regard to operating
road, breach of ffuch duty may be declared in charge of court as
matter of law to be negligence.
Approved in San Antonio etc. By. Co. v. Jackson, 38 Tex. Civ.
205, 85 S. W. 447, act of alighting from moving train not negligence
per se; Houston etc. B. Co. v. Goodyear, 28 Tex. Civ. 207, 66 S. W.
863, holding error in action by passenger for personal injuries to
charge that failure of company to announce arrival of trains would
constitute negligence; San Antonio etc. By. Co. v. Connell, 27 Tex.
Civ. 535, 66 S. W. 247, in action by employee against railroad for
damages for personal injuries, not error to refuse charge that viola-
tion by plaintiff of rule of company was negligence per se; Texas
etc. By. Co. y. Howard, 2 Posey TJ. C. 431, applying rule to failure to
ring bell or sound whistle at public crossing; G. H. etc. By. v. Smith,
59 Tex. 408, holding proper charge that company guilty of negli-
gence of train did not stop as required by law; Texas etc. By. v.
Cockrell, 2 Tex. Ap. Civ. 630, holding running train at unlawful rate
negligence per se. See note, 37 Am. Bep. 386.
Where Acts of Negligence are of such character as to establish
prima facie case of negligence, it is not error to charge that such
acts constitute negligence unless party complaining is prejudiced
thereby.
Approved in Sanchez v. San Antonio etc. B. Co. (Tex. Civ.), 27 S.
W. 924, reaffirming rule; Lewis v. Alexander (Tex. Civ.), 31 S. W.
416, holding where circumstances make prima facie case of fraud,
court may so charge; Martin v. St. Louis etc. By. (Tex. Civ.), 56
S. W. 1013, holding correct, charge that failure of trainmen to exer-
cise great care in enabling passenger to alight from train is neg-
ligence.
Error to Charge That Starting of Train instantly on giving of sig-
nal of departure is negligence on part of railroad's employees.
See note, 15 L. B. A. 333.
46 Tex. 371-S76, llCAYEB v. KAMSEY.
Person is Estopped by Acts intentionally making another believe
he has no right, or has abandoned it, and causing other to act upon
such belief when he would not otherwise have so acted.
Approved in Stewart v. Crosby (Tex. Civ.), 26 S. W. 140, and
Whiteselle v. Texas Loan Agency (Tex. -Civ.), 27 S. W. 315, both
reaffirming rule; Peters v. Clements, 52 Tex. 143, holding plaintiffs
not estopped by indefinite statement that they had renounced claim;
Turner v. Ferguson, 58 Tex. 9, holding person not estopped by acts
done in ignorance of rights; Sideck v. Duran, 67 Tex. 264, 3 S. W.
268, holding settler relinquishing grant estopped from ever assert-
ing title thereto; Bynum v. Preston, 69 Tex. 292, 5 Am. St. Bep.
52, 6 S. W. 430, holding failure to pay notes or taxes will not estop
46 Tex. 377-384 NOTES ON TEXAS BEPORTa 6S6
vendee from asserting title; Anderson v. Horn, 75 Tex. 678, 13 S.
W. 25, holding heirs estopped by declaration of father as to own-
ership of land; Garden v. Short (Tex. Civ.), 31 S. W. 248, holdisg
person estopped from claiming hometrtead in lands conveyed in trust
by designating other homestead and making affidavit that they
claimed no other homestead in property; Security etc. Trust Co.
T. Caruthers, 11 Tex. Civ. 441, 32 S. W. 843, holding mortgagee not
estopped from asserting priority of mortgage by assent to erecting
building; Whitsett v. Miller, 1 Posey TJ. C. 210, 211, holding to con-
stitute estoppel act« must be such as to justify defendant in rely-
ing upon them; McCord v. Hill, 117 Wis. 315, 94 N. W. 68, where
one of two contestant claimants after losing before Interior Depart-
ment signed agreement with successful entryman for consideration
that he would make no claim, he waa estopped to claim under prior
settlement on ground that entryman's possession not in good faith.
See note, 10 Am. Dec. 328.
Distinguished in Kuteman y. Carroll (Tex. Civ.), 80 S. W. 843,
conveyance of land by other than owners merely on their parol
agreement or consent is ineffectual where they have made . no repre-
sentations concerning title on which grantee relied.
Equitable Estoppel may be EstabUahed under plea of not guilty in
trespass to try title.
Approved in Wright v. Doherty, 60 Tex. 41, McDow v. Babb, 56
Tex. 162, Dooley v. Montgomery, 72 Tex. 432, 10 S. W. 452, 2 L. B.
A. 715, Scarbrough v. Alcorn, 74 Tex. 360, 12 S. W. 73, Guest v.
Guest, 74 Tex. 666, 12 S. W. 832, and Hagan v. Ellis, 39 Fla. 473,
474, 63 Am. St. Bep. 171, 172, 22 So. 729, 730, all reaffirming rule.
See notes, 27 Am. St. Bep. 345, 346.
•
46 Tex. 377-380, SELLEBS Y. BEED.
Where Two Deeds Executed at Same Time by same vendor convey
more land than was estimated, excess must be proportionately divided
between grantees.
Approved in Ware v. McQuinn, 7 Tex. Civ. 110, 26 S. W. 127, re-
affirming rule.
46 Tez. 380-384, WEIGHT v. WOOTEBS.
Sale Under Decree of Foreclosure does not affect title of purchaser
of whose claim there is notice.
Approved in Bradford v. Knowles, 86 Tex. 508, 25 S. W. 1118,
holding grantee of mortgagor necessary party to suit to foreclose
mortgage; Dalian v. HoUacher, 2 Tex. Ap. Civ. 476, holding pur-
chasers of mortgaged property necessary parties to foreclosure suit;
Williamson v. Wright, 1 Posey U. C. 720, holding purchasers under
recorded deeds not concluded by foreclosure unless made parties;
Nix V. Card well, 2 Posey U. C. 268, holding subsequent encum-
brancers must be made parties to suit to foreclose mortgage.
Where Vendee Executes Mortgage to secure purchase money, con-
tract of sale is executory.
Approved in Cassaday v. Frankland. 55 Tex. 458, reaffirming rule;
Shot well V. McCardell, 19 Tex. Civ. 176, 47 S. W. 40, holding ad-
ministrator's deed reserving lien for purchase money executory con-
tract.
Purchaser at Foreclosnre Sale has right of action to foreclose ven-
dor's lien against subsequent purchaser, and purchaser may make any
defense he has.
687 NOTES ON TEXAS REPOETS. 46 Tex. 384-402
Approved in Miller v. Rogers, 49 Tex. 416, 417, holding mortgage
covering several tracts, some since sold, foreclosure should first af-
fect tracts not soldj Willis v. Heath (Tex. Sup.), 18 S. W. 803, holding
claim of mortgagee of firm land, bought and mortgaged by one part-
ner, superior to claim of firm creditors.
Taking New Note With Different Sureties does not, unless so
intended, operate as release or waiver of mortgage.
Approved in Irvin v. Garner, 50 Tex. 54, and Wilcox v. First Nat.
Bk., 93 Tex. 330, 55 S. W. 319, both reaffirming rule; Robertson v.
Gnerin, 50 Tex. 323, 324, holding lien unaffected hy changing form
of indebtedness; Clements v. Neal, 1 Posey U. G. 47, holding ven-
dor'* lien preserved though note payable to another; Kennedy v.
Davis, 2 Posey U. C. 80, holding mortgage lien unaffected by chang-
ing note.
46 Tex. 384-391, KERB v. HUTCHINS.
Judgment Obtained by Creditor in suit to set aside fraudulent
conveyance by executrix affects such conveyance only in so far as
is necessary to secure plaintiff's debt.
Approved in Lemp Brewing Co. v. La Rose, 20 Tex. Civ. 579, 50
S. W. 462, holding representative cannot defeat conveyance by tes-
tator because in fraud of creditors.
Court Should Refuse to Bender Judgment on verdict which does not
find on all material issues submitted.
Approved in Dodd v. Gaines, 82 Tex. 432, 18 S. W. 619, and Cook
V. Greenberg (Tex. Civ.), 34 S. W. 690, both reaffirming rule; Michon
v. Ayalla, 84 Tex. 689, 19 S. W. 880, holding erroneous, verdict and
judgment not disposing of all issues raised; Mitchell v. Western
Union Tel. Co., 12 Tex. Civ. 282, 33 S. W. 1020, holding jury must
find on all issues submitted by jury.
Fact of Fraud in Transaction should be left fairly and fully to
judgment of jury.
Approved in Peiser v. Peticolas, 50 Tex. 646, 32 Am. Rep. 624,
holding all questions of fraud in fact vhould be left to jury; Scott
T. Alford, 53 Tex. 92, holding court can pronounce deed void only
when fraud is patent on face. See notes, 75 Am. Dec. 818, and
58 Am. St. Rep. 95.
Court cannot Charge Jury that facts in evidence establish fraud
in law.
See note, 58 Am. St. Rep. 94.
46 Tex. 396-402, BOBDEN Y. McBAE.
Venditioni Exponaa la Writ of Execution and confers upon officer
to whom it is directed authority to sell land upon which writ of
fieri facias is levied.
Approved in Wallace v. Bogel, 66 Tex. 575, 2 S. W. 97, reaffirm-
ing rule; Wallace v. Bogel (Tex. Sup.), 2 S. W. 51, holding veodi-
tioni exponas species of execution issuable under judgment that
execution may issue according to law. See notes, 70 Am. Dec. 390;
76 Am. Dec. 83.
Plaintiff In Execution Acquires Interest In Land upon which execu-
tion is levied from date of levy, which cannot be defeated by de-
fendant or those claiming under him subsequent to execution.
Approved in Senter v. Lambeth, 59 Tex. 262, holding vendor's lien,
though unrecorded, not defeated though sold to bona fide purchaser.
46 Tex. 402-407 NOTES ON TEXAS BEPOBTS. 688
Iieyy of Execution upon Land Fixes Lien, which upon sale passes
title against unrecorded deed unaffected hy notice after levj be-
fore sale.
Approved in Hicks v. Pogue, 33 Tex. Civ. 337, 76 S. W. 788, Mc-
Kamey v. Thorp, 61 Tex. 651, and Banney v. Hogan, 1 Posey U. C.
256, all reaffirming rule; Blum v. Schwartz (Tex. Sup.), 20 S. W.
55, holding lien secured by levying execution superior to rights
under uiirecorded bond for title of which execution i^aintiff had no
notice; Bussell v. Nail, 2 Tex. Civ. 64, 23 S. W. 901, holding title
of execution purchaser superior to that held under unrecorded deed;
Thomson v. Shackelford, 6 Tex. Civ. 126, 24 S. W. 984, holding pur-
chaser under execution has title superior to that of vendee under
unrecorded deed; Hamilton-Brown Shoe Co. t. Lewis, 7 Tex. Civ.
513, 28 S. W. 103, holding execution purchaser protected in title
against unrecorded deed; Jackson v. Pinlay (Tex. Civ.), 40 S. W.
429, holding time of return of execution having passed when judg-
ment was rendered, court should issue venditioni exponas for balance
due; McAfee v. Wheels, 1 Posey U. C. 72, holding purchaser under
execution takes good title against holder of unrecorded vendor's lien;
Shepard v. Hunsacker, 1 Posey TJ. C. 583, holding levy of execution
affects only debtor's interest.
Distinguished in Hale v. HoUon, 14 Tex. Civ. 110, 35 S. W. 850,
holding rights of grantee of expectancy under recorded conveyance
prevail over judgment creditors.
Miscellaneous. — Cited in Jackson v. Finlay (Tex. Civ.), 40 S. W.
429, holding execution irregular, but not void, because issued for
greater amount than is due.
46 Tex. 402-^07, SfASTEBSON v. OOODLETT.
Instruction That Written Contract to redeliver a crib of com im-
ported conclusively and as a matter of law that crib was full was
erroneous.
Approved in Grimes v. W)atkins, 59 Tex. 139, holding jury should
determine whether or not instrument of doubtful meaning was sale.
In Action upon Contract for delivery of personal property, paid
for, interest should be computed only from time when valuation was
fixed.
Approved in Fisher v. Dow, 72 Tex. 437, 10 S. W. 457, reaffirming
rule; San Antonio etc. By. v. Wilson, 4 Tex. Civ. 181, 23 S. W. 283,
holding measure of damages for nondelivery of goods of fluctuating
value highest market price.
Measure of Damages Against Bailee for using coin in his posses-
sion would be value when taken, with interest.
Approved in H. & T. C. By. v. Stewart, 1 Tex. Ap. Civ. 720, reaf-
firming rule; Grimes v. Watkins, 59 Tex. 140, holding measure of
damages for conversion of cattle market value with legal interest;
Houston etc. By. v. Jackson, 62 Tex. 212, holding owner entitled to
interest on value of goods where carrier fails to deliver; T. & P.
B. B. V. Williams, 1 Tex. Ap. Civ. 98, holding measure of damages
for property destroyed market value thereof when destroyed.
Note of Partnership may be Pleaded in Setoff in suit by surviving
partner on obligation due firm, when recovery would be for benefit
of partnership.
See note, 12 Am. Dec. 154.
Defendant may Set Off Partnership Note against suit on demand,
which is private property of surviving partner.
689 NOTES ON TEXAS EEPOBTS. 46 Tex. 408-416
Approved in Fleming v. Stansell, 13 Tex. Civ. 562, 36 S. W. 506,
holding defense of counterclaim cannot be defeated hy assignment
of claim sued on.
46 Tex. 408-416, HUTOHINS v. BACON.
That Purdiaser Bought With E^nowledge of adverse claim is not
concluEdve evidence that he had not acted in good faith.
Approved in House v. Stone, 64 Tex. 684, holding person not rigidly
responsible for innocent errors as to legal effect or interpretation
of adverse title; McCown v. Terrell (Tex. Civ.), 40 S. W. 58, holding
mere knowledge of adverse claim not conclusive against good faith
of person making improvements.
Charge That Property is Presumed to be Commimity Property
was properly refused where woman suing as feme sole in trespass
to try title alleged that she was sole owner, where one deed was
made to her while husband was living.
Approved in Thompson v. Comstock, 59 Tex. 320, as furnishing
proper guide for instructions regarding purchasers in good faith.
Becovery cannot be had In Suits by husband and wife, or by huv-
band alone to recover wife's separate property, when property is
proved to be community property or husband's separate property.
Approved in Milliken v. Smoot, 64 Tex. 173, reaffirming rule.
Verdict Which is Merely Conditional Finding for plaintiff should
not be received.
Approved in Bonner v. Wiggins, 52 Tex. 129, reversing conditional
verdict responsive to charge erroneously submitting issues.
There is No Variance Where Feme Sole Sues under general alle-
gation of title in herself if evidence shows that she owns less than
whole or only undivided interest.
Approved in McCabe v. Farrell, 34 Tex. Civ. 37, 77 S. W. 1050,
as to whether objection to charge is available to raise objection to
variance between allegation and proof; Stovall v. Carmichael, 52 Tex.
389, holding tenant in common may recover whole premises against
trespasser without alleging tenancy in common; Pilcher v. Kirk,
55 Tex. 213, holding evidence showing existence of other heirs will
not defeat suit by one as sole heir; Williams v. Davis, 56 Tex. 255,
holding person suing for whole tract may recover undivided interest;
Sowers v. Peterson, 59 Tex. 221, holding tenant in common not in ex-
clusive possession may recover whole tract ag^ainst trespasser; Ney
V. Mumme, 66 Tex. 269, 17 S. W. 408, holding one cotenant may re-
cover from trespasser land belonging to himself and cotenants;
Schmidt v. Talbert, 74 Tex. 452, 12 S. W. 284, holding plaintiff alleg-
ing ownership of "south end of south half," deed describing land as
undivided half of south half admissible; Murrell v. Wright, 78 Tex.
523, 15 S. W. 157, holding plaintiff alleging ownership of whole tract
may recover undivided interest. See notes, 70 Am. Dec. 314; 6 L. B.
A. (n. s.) 715.
Distinguished in King v. Hyatt, 51 Kan. 512, 37 Am. St. Rep. 308,
32 Pac. 1107, holding owner of undivided interest cannot recover
whole tract unless in community of interest with other owners.
Testimonio of Deed by Public Act executed in 1834 cannot be ad-
mitted to record without proof of execution.
Approved in McCarty v. Johnson, 20 Tex. Civ. 188, 189, 49 S. W.
1100, holding copy of original protocol not entitled to registration
unless properly certified.
2 Tex. Notes — 14
46 Tex. 416-421 NOTES ON TEXAS REPOBTS. 690
Certifled Oopj of Original Orant or Protocol properly on file in
office of county clerk is admissible in evidence.
Approved in Brozson v. McDongal, 63 Tex. 197, 198, holding certi-
fied copy of original improperly recorded inadmissilile; Beaumont
Pasture Co. v. Preston, 65 Tex. 454, holding written instrument
offered as ancient document admissible on proof of genuineness; TJhl
V. Muspuez, 1 Posey U. C. 658, holding inadmissible certified copy of
instrument irregularly recorded.
Secondary Evidence of Contents of Paper addressed to deceased
person admissible on proof of loss and genuineness by executor, and
proof of diligent search.
Approved in Hawley v. Geer (Tex.), 17 S. W. 915, holding testi-
mony that purchaser had deed executed to another, intending prop-
erty to be children's, and that the other executed bond to convey
title to children, sufficient to establish reeulting trust.
46 Tex. 41&-421, GBIMES Y. HOBSON.
Lien Acquired by Levy of Execution takes precedence over un-
recorded deed from judgment debtor.
Approved in McKamey v. Thorp, 61 Tex. 651, Russell v. Nail, 2
Tex. Civ. 64, 23 S. W. 901, Ranney v. Hogan, 1 Posey U. C. 256,
McAfee v. Wheels, 1 Posey TJ. C. 72, Stevenson v. Texas By., 105
U. S. 708, 26 L. 1217, and Meek v. Skeen, 60 Fed. 325, all reaffirming
rule; Stephens v. Keating (Tex. Sup.), 17 S. W. 39, holding execution
purchaser unaffected by notice, if execution purchaser without notice
when levying execution; Blum v. Schwartz (Tex. Sup.), 20 S. W. 55,
lien secured by levying execution superior to that under unrecorded
bond for title; Russell v. Nail (Tex. Civ.), 23 S. W. 901, holding un-
registered deed from husband to wife void as to subsequent pur-
chasers and creditors; Hamilton -Brown Shoe Co. v. Lewis, 7 Tex.
Civ. 513, 28 S. W. 103, holding execution purchaser with or without
knowledge protected against unrecorded liens.
Distinguished in Senter v. Lambeth, 59 Tex. 263, holding vendor's
lien unaffected by lien acquired by levy of execution; Calvert v.
Roch, 59 Tex. 464, holding purchaser under execution, with notice
of unrecorded trust, takes no title; Schneider v. Fowler, 1 Tex. Ap.
Civ. 493, holding unrecorded title of married woman to cattle unaf-
fected by execution thereon. against husband.
Any Action Involving Title to Land is in effect, regardless of
form, action of trespass to try title.
Approved in Texas Land Co. v. Turman, 53 Tex. 623, reaffirming
rule; Atchison v. Owen, 58 Tex. 615, allowing second suit to vacate
sheriff's sale under statute allowing second suit to try title; State v.
Snyder, 66 Tex. 694, 18 S. W. 107, holding character of action to
try title unaffected by prayer for equitable relief; Day Land etc.
Co. V. State, 68 Tex. 536, 4 S. W. 869, holding legal and equitable
relief may be given in same action; New York etc. Land Co. v.
Hyland, 8 Tex. Civ. 614, 28 S. W. 211, holding trespass to try title
maintainable upon legal or equitable title; Johnson v. Foster (Tex.
Civ.), 34 S. W. 826, holding case is one of trespass to try title where
pleadings show title to land involved; English v. Hutchins, 2 Posey
XJ. C. 408, holding allegation of plaintiff^ ownership, and defendant's
possession praying restitution, constitute trespass to try title; dis-
eenting opinion in Moore v. Snowball, 98 Tex. 37, 81 S. W. 15, 66
L. R. A. 745, majority holding adverse judgment in suit to remove
691 NOTES ON TEXAS BEPOBTS. 46 Tex. 421-447
cloud and recover land sold for taxes on ground that judgment
void for want of citation, and sale void because in bulk for property
part of which was homestead, no bar to suit to set aside sheriff's
deed for irregularities in sale leading to inadequate price.
Distinguished in Haskins v. Wallet, 63 Tex. 218, holding unex-
plained delay of fourteen years bars suit to remove cloud from title;
McCampbell v. Durst, 15 Tex. Civ. 531, 40 S. W. 319, holding statute
of limitations applicable to suit to enforce equity asserted by pro-
ceeding to annul deed.
46 Tex. 421-433, EDaAB T. GALVESTON OITT CO.
Ooort Should Sustain Petition as atating good cause of action, if
combination of facts, stating good cause of action, can be found,
though all ether facts stated are liable to exception.
Approved in Lyle v. Harris, 1 Tex. Ap. Civ. 31, holding general
demurrer will not lie where petition shows cause of action; Brince-
field y. Allen, 25 Tex. Civ. 260, 60 S. W. 1011, holding good on de-
murrer, petition stating good cause of action, though asking specula-
tive damages; Ward v. Ward, 1 Posey U. G. 126, holding joinder
of imperfectly stated cause of action no ground for demurrer to
good cause of action.
Plaintiff may Bring Secoiid Suit in trespass to try title whether
first suit was decided on merits or on demurrer.
Approved in Gonnoly v. Hammond, 58 Tex. 21, reaffirming rule.
46 Tex. 43S-436, THOIlCAS v. MOOBE.
Under Colonization Law of March 24, 1825, prohibition against
sale by colonist acquiring land thereunder ceased after six years
from date of colonist's title.
Approved in Summers v. Davis, 49 Tex. 553, reaffirming rule. See
note, 65 Am. Dec. 109.
46 Tax. 436-441, GALVESTON ▼. GALVESTON ETC. B. B.
Under C(mtract by BaUroad with City to keep roadbed in good re-
pair and up to level of street, railroad is not bound to fill up street
on each side of track to keep roadbed on level with street.
Approved in Galveston etc. By. v. Nolan, 53 Tex. 147, reaffirming
rule. See note, 70 L. B. A. 855.
Agreemoit to Annul or Modify Contract obtained through mistake,
or which has become unduly oppressive, is not invalid for want of con-
sideration.
Approved in Foley v. Storrie, 4 Tex. Civ. 380, 23 S. W. 443, hold-
ing parties competent to make change in contract and rights stand
on new contract.
46 T^x. 441-447, WOBSHAM Y. BICHABDS.
Under Statute, County Court has Jurisdiction to investigate and de-
termine all matters regarding county seat elections.
Approved in Ex parte Towles, 48 Tex. 422, holding district court
could not issue mandamus to correct proceedings at county seat
election; Anderson 'Co. v. Houston etc. B. B., 52 Tex. 242, holding
county court has jurisdiction to determine legality of bond election.
See note, 51 L. B. A. 69.
Distinguished in Bayner v. Forbes (Tex. Civ.), 52 S. W. 568, hold-
ing, under amendment to statute, citizen may contest in district
court election fixing county seat.
46 Tex. 447-475 NOTES ON TEXAS BEP0RT8. 692
Citizens of County have No Snch Legal Bight in locality of county
seat as will enable them to sue to prevent change by authorities
appointed by law to do so.
Approved in San Antonio v. Strumberg, 70 Tex. 369, 7 S. W. 755,
reaffirming rule; Swartz v. Board of Commissioners, 158 Ind. 154, 63
N. E. 36, one whose grantor had donated land to commissioners for
courthouse under statute authorizing receipt of such donations cannot
enjoin removal of county seat, and statutes establishing superior
courts in towns other than county seats do not impair contract obli-
gations. See note, 55 Am. Dec. 807.
46 Tex. 447-466, TBEASUBEB OF STATE v. WYOAIJlh
Legislature may, by Law, Change, modify, or otherwise regulate
remedy, provided substantial remedy is left and there is no vested
right in particular remedy.
Approved in Parker v. Buckner, 67 Tex. 23, 2 S. W. 747, reaffirming
rule; Watson v. Boswell (Tex. Civ.), 73 S. W. 986, upholding Gen.
Laws 1901, p. 122, limiting time for filing appellate mandate in pend-
ing cases.
Suit Against Treasurer in Official Capacity is suit against state,
permissible under general law, and legislature has power to protect
state by requiring suit to be brought in district court at state capital.
Approved in Ex parte Towles, 48 Tex. 448, in concurring opinion
holding courts have jurisdiction of suit against state only as given
by statute; Taylor v. Hall, 71 Tex. 213, 9 S. W. 149, holding state
cannot be sued directly or indirectly without its consent.
No Money can be Paid Out of State Treasury except under act of
legislature directing such payment to be made.
Approved in State v. Snyder, 66 Tex. 700, 18 S. W. 109, holding
no tender by state required in suit to recover school lands fraudu-
lently granted.
Bemedy Oiven Claimants of Estate to sue for its recovery in county
where administration granted is subject to right to change venue.
Approved in State v. Superior Court, 40 Wash. 448, 111 Am. St.
Hep. 915, 82 Pac. 876, 2 L. B. A. (n. s.) 568, statute authorizing
change of venue applies to garnishment proceedings.
Miscellaneous. — Cited in State v. Wygall, 51 Tex. 631, another phase
of litigation; Dodson v. Wortham, 18 Tex. Civ. 667, 45 S. W. 859,
as showing exercise of jurisdiction in case involving more than
jurisdictional amount.
46 Tex. 466-475, VOOELSANO ▼. DOXTOHEBTT.
Grant of Administration upon Estate of Deceased Voinnteen from
foreign country, under acts of May 18, 1838, and January 14, 1841,
was void.
Approved in Shirley v. Warfield, 12 Tex. Civ. 455, 34 S. W. 392, re-
affirming rule.
General Jurisdiction to Grant Letters of Administration assumed
by probate court cannot be collaterally attacked after lapse of
thirty-one years and after rights of third persons without notice have
intervened.
Approved in Tiebout v. Millican, 61 Tex. 517, holding claim for
allowance in lieu of homestead stale after thirty-five years; Will-
iamson V. Wright, 1 Posey U. C. 718, holding order of court having
jurisdiction not void though erroneous.
693 NOTES ON TEXAS REPORTS. 46 Tex. 475-484
46 Tez. 475-478, CXJNDIFF ▼. TEAaUE.
XTnder Act of 1846, Defining Duties of Constables, constable may
levy execution on land in county, but not within hia beat and with-
out entering upon land.
Approved in Medlin v. Seideman, 39 Tex. Civ. 656, 88 S. W. 252,
constable may execute process from district and county courts and
delivered to him by attorneys, and is entitled to fees therefor;
Cavanaugh v. Peterson, 47 Tex. 204, holding sheriff need not enter
upon land to levy execution on it.
46 Tez. 478-484, WILLIS ▼. 1ICATTHEW&
Equity will Enforce Verbal Gift of Land by father to son if clearly
established and followed by possession and valuable improvements
with father's consent.
Approved in Van Bibber t. Mathis, 52 Tex. 409, Montgomery v.
Carlton, 56 Tex. 364, and Woolridge v. Hancock, 70 Tex. 21, 6 S.
W. 822, all reaffirming rule; Bonner v. Bonner, 34 Tex. Civ. 351, 78
S. W. 537, actual possession and improvements unnecessary where
father divided estate among children by parol gift and partition of
lands prior to his death, and children have each held and claimed
parts in severalty; Price v. McWhorter, 50 Tex. 571, holding parol
sale of land enforceable when price paid, possession taken, and im-
provements made; Willis v. Mclntyre, 70 Tex. 42, 8 Am. St. Rep.
581, 7 S. W. 598, holding possessor of land under parol gift after-
ward receiving deed has good title against creditor; Guest v. Guest,
74 Tex. 667, 12 S. W. 832, holding person estopped by declarations
of ownership of land from claiming it; Wootters v. Hale, 83 Tex.
567, 19 S. W. 136, holding parol gift of land enforceable when
dearly proved, possession taken and improvements made; Bullock v.
Sprowls (Tex. Civ.), 54 S. W. 658, holding evidence that father
recognized and acquiesced in gift to son sufficient to support equitable
title to land in son.
Effect of Judgment in Attachment Proceeding is to fix lien on
interest of defendant subject to execution at time, but leaves home-
stead rights unaffected where no issue regarding homestead is raised.
Approved in Seligson v. Collins, 64 Tex. 315, Willis v. Pounds,
6 Tex. Civ. 517, 25 S. W. 717; Tobar v. Losano, 6 Tex. Civ. 702, 25
S. W. 974, and Ingram v. Phillips, 10 Tex. Civ. 18, 29 S. W. 916,
all reaffirming rule; Beard v. Blum, 64 Tex. 63, holding homestead
unaffected by attachment levied thereon. See note, 73 Am. Dec.
218.
unless Issae is Raised by Pleadings, court will not pass upon home-
stead character of property attached.
Approved in Morrison v. Carnahan (Tex.- Civ.), 31 S. W. 436, hold-
ing defendant need not assert exemption in attachment when plain-
tiff did not raise issue.
Where Homestead is Established on Land, half of which is wife's
separate property and other half husband's separate property, exemp-
tion is of two hundred acres so owned.
Approved in Battle v. John, 49 Tex. 211, holding execution sale
of excess of homestead exemption, however owned, leaves owner-
ship of homestead unaffected; Cameron v. Fay, 55 Tex. 63, holding
excess under homestead exemption subject to forced sale; Mayers
V. Paxton, 78 Tex. 199, 14 S. W. 569, holding vendee of homestead
unaffected by attachment against vendor; John v. Battle, 58 Tex.
46 Tex. 485-496 NOTES ON TEXAS EEPOBTS. 694
598, holding homestead exemption unaffected hy Bale nnder bank-
ruptcy proceedings; Jones v. Whiteselle (Tex. Civ.), 29 S. W. 178,
holding under forced sale of homestead to subject excess to payment
of debts, only excess is subject; Bichardson y. Adler, 46 Ark. 47,
holding sheriff's return on execution on homestead may be quashed
as to exempt property. See note, 70 Am. Dec. 346.
Distinguished in Willis v. Pounds, 6 Tex. Civ. 619, 25 8. W. 717,
holding execution under foreclosure passes only defendant's interest
in property not exempt.
46 Tez. 485-496, BOLLEB ▼. WOOLDBIDaE.
Confederate Treasury Notes Constitate Valuable Coiudderatioii on
which to sustain contract.
Approved in Lewis v. Alexander, 51 Tex. 590, holding contracts
founded on Confederate money not void. See note, 31 L. B. A. 759.
• Where Petlticm for New Trial Shows Good, Equitable Oroonds for
vacating judgment at law, exceptions thereto for want of equity
should be overruled, not for purpose of granting new trial, but so
that case might be tried as seeking equitable relief.
Approved in Aetna Ins,. Co. v. Brannan, 99 Tex. 398, 89 S. W.
1060, 2 L. B. A. (n. s.) 548, in action on insurance policy with alle-
gation of facts entitling plaintiff to reformation, it is unnecessary
to pray for or obtain formal judgment of reformation; Brown v.
Button, 38 Tex. Civ. 298, 85 S. W. 455, appeal in proceeding under
Bev. Stats., art. 1375, to set aside judgment rendered on service by
publication, does not require appeal bond; Overton v. Blum, 50 Tex.
423, holding new trial granted after term at which judgment was
rendered; Baymond v. Conger, 51 Tex. 540, holding proper practice
when injunction issaes to restrain judgment is to dispose of injunction
and merits in same proceeding; Eddleman v. McGlathery, 74 Tex.
281, 11 S. W. 1101, holding new trial will not be granted after close
of term at which judgment rendered.
Distinguished in Moser v. Hussey, 67 Tex. 458, 3 S. W. 689, hold-
ing landlord without notice may reopen judgment against tenants
and have new trial.
Proceeding In Equity to Set Aside Judgment in action at law is
not maintainable on ground of irregularities, but substantial injury
must be shown.
Approved in Wood v. Lenox, 5 Tex. Civ. 322, 23 S. W. 813, reaf-
firming rule; Masterson v. Ashcom, 54 Tex. 329, holding person seek-
ing to restrain moneyed judgment must show good defense; Batto
V. Levy, 63 Tex. 281, holding injunction will not lie unless judgment
would probably be reversed; Bowden v. Crow, 2 Tex. Civ. 596, 21
S. W. 614, holding award will not be vacated unless fraud or ma-
terial mistake of fact shown; Adams v. First Nat. Bank (Tex. Civ.),
52 S. W. 643, holding equity will vacate judgment in law only when
against good conscience and defendant was prevented without fault
from making proper defense.
Attorney at Law has No Bight to Make Compromise, but eourt
will hesitate to disturb compromise so made if fair to party.
Approved in Williams v. Nolan, 58 Tex. 713, reaffirming rule;
Anderson v. Oldham, 82 Tex. 231, 18 S. W. 558, holding petition for
injunction because judgment violates agreement with attorney should
allege attorney's authority; Cook v. Qreenberg (Tex. Civ.), 34 S. W.
689, holding correct charge that attorney has no authority to eom-
695 NOTES ON TEXAS EEPOETS. 46 Tex. 496-519
promise demand without knowledge or consent of client; Whipple v.
Whitman, 13 B. I. 515, 43 Am. Bep. 45, refusing to disturb com-
promise by attorney when fair and reasonable. See notes, 76 Am.
Bee. 261; 30 L. B. A. 708.
Distinguished in Cetti ▼. Bunman, 26 Tex. Ciy. 438, 64 S. W. 790,
holding judgment made under false representations of attorney will
be set aside.
Judgment will not be Enjoined because given for Confederate notes
where not alleged that at time of their maturity notes were worth-
less.
See note, 60 L. B. A. 702.
46 Tez. 49e-505, WILLIS v. FEBaXTBOK.
Estate l8 Bound by Acts of Ezecutriz continuing to act as such
after failure to file inventory required by statute, and neither court
nor creditors have objected to her so acting.
Approved in Campbell v. Coz, 1 Tez. Ap. Civ. 263, reaffirming
rule; Cooper v. Horner, 62 Tez. 364, holding court failing to require
inventory, purchaser at ezecutor's sale is protected; Connellee v.
Boberts, 1 Tez Civ. 366, 23 S. W. 188, holding ezecutor's sale not
collaterally attackable because inventory incomplete; Patten v. Coz,
9 Tez. Civ. 304, 29 8. W. 185, holding failure to file inventory will
not destroy character of ezecutor; French v. McCready (Tez. Civ.),
57 S. W. 896, holding court may order sale by receiver though prop-
erty not inventoried.
Distinguished in Boy v. Whitaker (Tez. Civ.), 50 S. W. 496, deny-
ing right of independent ezecutor to resign trust.
Ordinarily, tlie Act of Granting Letters of administration upon
application therefor raises presumption that a vacancy in the ad-
ministration has been determined by competent evidence.
Beaffirmedr in Willis v. Ferguson, 59 Tez. 175, in same case on
second appeal.
Miscellaneous. — Cited in Hartford Fire Ini. Co. v. King, 31 Tez.
Civ. 639, 73 S. W. 73, judgment by court having jurisdiction over
parties and subject matter is not collaterally attackable.
46 Tez. 506-519, BODOEB8 ▼. BAS&
Use of Confederate Currency in private transactions between per-
sons where it circulated did not invalidate such transactions.
Approved in Lewis y. Alezander, 51 Tez. 590, reaffirming rule;
Bobertson v. Johnson, 57 Tez. 66, holding purchaser at guardian's
sale paying Confederate money takes good title; Hendry v. Benlisa,
37 Fla. 621, 20 So. 802, 34 L. B. A. 283, holding payment of debt
during war in Confederate money, if accepted, discharges debt. See
notes, 15 Am. Dec. 132, 133.
Agent has No Power to Sell, barter or ezchange note to debtor or
anyone else, for drafts^ bills of ezchange or any kind of personal
or real property.
Approved in Gamer v. Butcher, 1 Posey U. C. 438, 439, reaffirm-
ing rule; Fitzhugh v. Franco-Tezas Land Co., 81 Tez. 313, 16 S. W.
1080, holding corporation chartered to sell lands cannot trade them
for personal property. See notes, 15 Am. Dec. 130, 131.
Distinguished in Donnan v. Adams, 30 Tez. Civ. 616, 71 S. W. 581,
where land owner gave agent written memorandum description
thereof with statement of price, accompanied with verbal instruc-
46 Tex. 520-535 NOTES ON TEXAS REPORTS. 696
tions to sell land, agent not empowered to bind owner bj written
contract of sale.
Debtor cannot Resist Suit upon Note by Party holding it with ap-
parent legal right, on ground that another is equitable owner.
Approved in Sanders v. Atkinson, 1 Tex. Ap. Civ. 774, reaffirming
rule; Llano Improvement Co. t. Cross, 5 Tex. Civ. 178, 24 S. W. 78,
holding payee or indorsee in possession may sue on note though not
equitable owner.
46 Tex. 520-625, MA8TER80N ▼. COHEN.
Wbere Deed Reserves Express Lien for Purchase Money, and note
is taken for its payment, vendor has superior right to land and to
possession on default of vendee.
Approved in Pitschki v. Anderson, 49 Tex. 3, holding vendor's deed
retaining lien for purchase price executory contract of sale; Hale v.
Baker, 60 Tex. 219, holding, where deed retains lien, vendor may re-
cover land after purchase money notes barred; Crafts v. Daugherty,.
69 Tex. 481, 6 S. W. 852, holding vendor and assignees or grantees
have superior title until purchase money paid; Abernethy v. Bass,
9 Tex. Civ. 243, 29 S. W. 399, reaffirming rule; Polk v. Kyser, 21
Tex. Civ. 681, 53 S. W. 90, holding vendor's assignee may defer action
for possession if purchase money unpaid. See notes, 62 Am. Dec.
512; 84 Am. Dec. 596; 4 Am. St. Rep. 706.
46 Tex. 526-n5S5, 26 Am. Rep. 279, NAVASOTA v. PEARCE.
Action for Damages is not Maintainable against municipal corpora-
tion having exclusive power over streets, etc., under charter, by
person injured through failure to repair streets.
Approved in Arkadelphia v. Windham, 49 Ark. 142, 4 Am. St. Rep.
34, 4 S. W. 451, reaffirming rule; Keller v. Corpus Christi, 50 Tex.
629, 32 Am. Rep. 617, holding city not liable for building destroyed
by fire department to confine fire; Canway v. Beaumont, 61 Tex. 12,
holding where city not uniformly liable for tort facts should be
specially pleaded; Wallace v. Dallas^ 2 Posey TJ. C. 426, holding city
not liable for negligence of officers in repaving streets; Vail v.
Amenia, 4 N. D. 244, 59 N. W. 1093, holding township not liable for
neglect of officers in repairing bridges. See notes, 68 Am. Dec. 294;
108 Am. St. Rep. 152; 103 Am. St. Rep. 263; 20 L. R. A. (n. s.) 516,
518; 10 L. R. A. 620.
Distinguished in Galveston v. Posnainsky, 62 Tex. 133, holding city
liable for injury to child through failure to repair streets; Ludlow v.
Fargo, 3 N. D. 488, 57 N. W. 507, holding under statute city charged
with use of ordinary care in repairing streets.
Denied in Gould v. Topeka, 32 Kan. 489, 49 Am. Rep. 498, 4 Pac.
824, holding city liable for injuries through neglect of officers in re-
pairing streets; Wilson v. Wheeling, 19 W. Va. 333, 42 Am. Rep. 784,
holding city responsible to party injured through failure to repair
streets.
Individual Action, XXnless Authorized by Statute, is not maintain-
able against counties, etc., for damages sustained through failure to
repair bridges and roads, although such duty is imposed by law.
See notes, 2 Am. St. Rep. 169; 30 Am. St. Rep. 384.
Municipal Corporations luYested With Franchises or Privileges from
which profit is made are liable for damages through breach of duty
in respect to such franchises or privileges.
697 NOTES ON TEXAS BEPORTS. 46 Tex. 535-551
Approved in Houston City By. v. Dawson, 2 Posey U. C. 227, 228,
holding street railroad liable for injuries received through defective
culvert at crossing; Lenzen v. New Braunfels, 13 Tex. Civ. 354, 35
S. W. 350, holding city supplying water for profit liable for loss
through negligence in supplying water.
46 Tex. 535-640, FBIOE ▼. HOUSTON ETC. NAV. GO.
Act of Febraary 2, 1860, Anthorizing Heirs, etc., to sue for and
recover damages where death of person was caused by negligent or
wrongful act of another, is not repealed by constitution of 1869.
Approved in Galveston etc. B. B. v. Gierse, 51 Tex. 203, holding
constitutional provision allowing exemplary damages for injuries did
not repeal statute giving compensatory damages.
Master Is not Liable for Injuxies sustained by servant through
negligence of fellow-servant.
Approved in Houston etc. B. B. v. Miller, 51 Tex. 274, Houston etc.
B. B. V. Myers, 55 Tex. 115, and Gulf etc. By. v. Byan, 69 Tex. 668,
7 S. W. 87, all reaffirming rule; Houston etc. B. B. v. Willie, 53 Tex.
327, holding company not liable for injury through malicious act of
engineer; I. & G. N. B. B. v. Both, 2 Poeey U. C. 246, holding ser-
vant cannot recover damages where he should have known of fellow-
servant'a incompetency. See note, 51 L. B. A. 539, 620.
46 Tex. 640-551, ROBINSON Y. HOUSTON ETC. BY.
Railroad is not Liable for Injuries occasioned by negligence of
fellow-servant in placing fresh sand along railroad track, unless fact
of its being there was known or should have been known to corporate
agents, or was placed there at its direction.
Approved in Gulf etc. By. v. Blohn, 73 Tex. 640, 11 S. W. 868,
4 L. B. A. 764, holding fireman cannot recover for injury through
engineer's negligence. See notes, 54 L. B. A. 137, 165; 12 L. B. A.
97.
Railroad is not Liable for Injuries caused by new arrangement
for running train, where employee knew of extra risk and did not
object thereto.
Approved in Houston etc. B. B. v. Miller, 51 Tex. 274, Houston etc.
B. B. V. Myer, 55 Tex. 116, Dallas v. G. Col. etc. By., 61 Tex. 202,
203, Gulf etc. By. v. Byan, 69 Tex. 668, 7 S. W. 87, Pilkinton v. Gulf
etc. By., 70 Tex. 230, 7 S. W. 807, and I. & G. N. B. B. v. Both, 2
Posey U. C. 246, all reaflirming rule; Houston etc. By. Co. v. Mc-
Namara, 59 Tex. 257, because brakeman on top of boxcar might by
inspection have discovered that cross-ties on roadbed were rotten
and dangerous, does not raise presumption that he assumed risk by
continuing employment; Houston etc. B. B. v. Willie, 53 Tex. 327,
holding railway not liable though brakeman injured through malicious
act of engineer; Missouri etc. By. v. Watts, 63 Tex. 552, holding
railway not liable though injury result from negligence of servant
of different grade; Galveston etc. By. v. Farmer, 73 Tex. 89, 11
S. W. 157, holding railway not liable for injury to station agenb
through fault of trainmen; Gulf etc. By. v. Mayo, 14 Tex. Civ. 267,
37 S. W. 666, holding company not liable where injured awitchman
knew of defective coupling; Kidwell v. Houston etc. By., 3 Woods,
315, Fed. Cas. 7757, holding company not liabl% for injury to master
machinist through car inspector's fault.
46 Tex. 551-555 NOTES ON TEXAS EEPOETS. 698
Distinguished in Gulf etc. By. v. Brentford, 79 Tex. 626, 23 Am.
St. Bep. 383, 15 S. W. 564, holding employee may recover for in-
juries through fault of person employed to furnish lights.
Bailroad is not Liable for Injuries sustained through negligenee
of fellow-servants even though they be of different grades.
Approved in Missouri etc. By. v. Whitaker, 11 Tex. Civ. 671, 33 S.
W. 717, reaffirming rule; Galveston etc. By. v. Smith, 76 Tex. 614,
18 Am. St. Bep. 81, 13 S. W. 563, holding employee cannot recover
for injury in collision through roadmaster's fault; International etc.
By. V. Byan, 82 Tex. 570, 18 S. W. 221, holding carpenter working on
bridge cannot recover for injuries in collision between sleeping-car
and engine. See notes, 51 L. B. A. 526, 620; 50 L. B. A. 430; 46
If. B. A. 339.
46 Tex. 561-565, 26 Am. Bep. 286» UUT0U1N8 ▼. MASTEBSOK.
Charge Given upon Hypotheaia not warranted by testimony is
error.
Approved in De Garca v. Galvin, 55 Tex. 56, reaffirming rule;
Byrnes 'V. Morris, 53 Tex. 219, holding error to submit to jury issues
not supported by evidence; Houston etc. By. v. Gilmore, 62 Tex. 392,
holding erroneous charge, in absence of facts, on which issue could
be made.
Chattel Becomes Fixture when there has been real or constructive
annexation to realty of chattel adapted to use of realty with inten-
tion that annexation be permanent.
Approved in Moody v. Aiken, 50 Tex. 72, and Deal v. Smart, 1 Tex.
Ap. Civ. 610, both reaffirming rule; Watson v. Markham, 33 Tex.
Civ. 478, 77 S. W. 661, mechanic's lien for materials for gin-house
with seed and lint flues attached to land is subordinate to vendor's
lien; Eotan Grocery Co. v. Dowlin (Tex. Civ.), 77 8. W. 430, where
lessee at expiration of lease removed from premises building he
erected thereon, and with intention of allowing it to remain, placed
it on land which he thought was alley but which belonged to private
party, house became fixture; Ottumwa Iron Works v. Muir, 126 Mo.
Ap. 587, 1Q5 S. W. 31, under Bev. Stats. 1899, sec. 4206, there is
no lien on hoisting engine and boiler put in under lease for coal-
mining purpose, reserving to lessee right of removal; Canning v.
Owen, 22 B. I. 629, 84 Am. St. Bep. 858, 48 Atl. 1035, electric light
fixtures are part of realty though they may be removed without
physical injury or freehold; Henderson v. Ownby, 56 Tex. 649, 42
Am. Bep. 692, holding tenant cannot recover for improvements made
after suit to try title brought; Willis v. Morris, 66 Tex. 632, 59
Am. Bep. 636, 1 S. W. 801, holding valuable machinery in building
on worthless lot deemed part of freehold; Harkey v. Cain, 69 Tex.
150, 6 S. W. 639, holding personal property fixtures, where attached
permanently to land; Keating Implement etc. Co. v. Marshall etc.
Co., 74 Tex. 608, 12 S. W. 490, holding poles, etc., on lot for con-
veying light deemed part of realty; Jones v. Bull, 85 Tex. 139, 19
S. W. 1032, holding cotton-gin with stationary engine and press fix-
ture; Gulf etc. By. v. Dunman, 85 Tex. 182, 19 S. W. 1075, holding
personal property not fixture unless permanently annexed to land;
Ames Iron Works v. Davenport (Tex. Civ.), 24 S. W. 369, holding
county court has jurisdiction to foreclose mortgage on engine, etc.,
on land if they are movable; Forsgard v. Ford, 87 Tex. 187, 27 S. W.
58, 25 L. B. A. 155, holding house on homestead lot not subject to
699 NOTES ON TEXAS EEPOETS. 46 Tex. 556-575
execution; Brown v. Boland, 92 Tex. 57, 45 S. W. 796, holding law
presumes boiler, etc., attached to land intended as fixtures; Qentry ▼.
Bowser, 2 Tex. Civ. 391, 21 S. W. 570, holding machinery attached
to country homestead not subject to mortgage; Brown v. Boland,
11 Tex. Civ. 652, 33 S. W. 275, holding gin and mill placed on land
in enduring form part of realty; Bhelton v. Willis, 23 Tex. Civ.
550, 58 S. W. 178, holding personal property permanently attached
to land becomes part of realty. See notes, 17 Am. Dec. 695; 66 L.
B. A. 58.
In Detennlnlng Wbether Chattel has Become Fiztnre, intention of
party annexing chattel to realty generally governs.
Approved in Phelan v. Boyd (Tex. Sup.), 14 S. W. 294, Copp v.
Swift (Tex. Civ.), 26 S. W. 439, and Menger v. Ward (Tex. Civ.), 28
S. W. 824, all reaffirming rule; Gulf etc. By. Co. v. Dunman (Tex.
Civ.), 33 S. W. 1025, holding improvements placed on land for tem-
porary use for certain purpose not fixtures; Willis v. Hunger etc.
Machine Mfg. Co., 13 Tex. Civ. 681, 36 S. W. 1012, holding personal
property remains chattel when such is clear intention; Orient Ins.
Co. V, Parlin-Orendorfif Co., 14 Tex. Civ. 514, 38 S. W. 61, holding in-
tention of owner largely determines whether house becomes part of
realty; McFarlane v. Foley, 27 Ind. App. 487, 87 Am. St. Bep. 264,
60 N. E. 358, holding chandeliers attached to building part of realty
BO as to give contractor furnishing and putting them in mechanic's
lien therefor.
Distinguished in Missouri Pac. By. v. Cullers, 81 Tex. 389, 17 S.
W. 22, 13 L. B. A. 542, whether a dwelling-house and kitchen, called
the "hay camp," were movable fixtures is a mixed question of law
and fact.
Parol Bala of Flztora is Void under statute of frauds.
Approved in Moody v. Aiken, 50 Tex. 74, holding parol agreement
for sale of banker's safe not within statute of frauds.
46 Tex. 666-575, HABT V. BUST.
Delivery of Deed is not Affected or Amuilled by subsequent return
to grantor for safekeeping.
Approved in McLaughlin v. McMangle, 63 Tex. 558, holding de-
livery of deed necessary to vest title though grantee in possession;
Smith V. James, 22 Tex. Civ. 156, 54 S. W. 42, holding return of
deed to grantor for safekeeping will not affect validity.
Courts will not Oonstme Instrument, drawn so as to have effect
of deed, so as to give it effect different from that ordinarily imputed
to it.
Approved in De Bajligethy v. Johnson, 23 Tex. Civ. 275, 56 S. W.
96, holding conveyance by husband to wife concluding ''This deed
is not to take effect till after my death," is will; Ellis v. Ellis, 5
Tex. Civ. 50, 23 S. W. 997, holding proper submission to jury of
question whether instrument was intended as will or deed; Hanning
V. Hanning (Tex. Civ.), -24 S. W. 697, holding question is for jury
where it is doubtful whether instrument was intended to operate
as deed or will. See note, 92 Am. Dec. 388.
Only Creditors and Bona Fide Purchasers can object to deed from
father to son as being in fraud of creditors, and such objection must
be made in direct proceeding for that purpose.
Approved in Heard v. McKinney, 1 Posey U. C. 89, reaffirming
rule; Burges v. New York Life Ins. Co. (Tex. Civ.), 53 S. W. 604,
46 Tex. 575-592 NOTES ON TEXAS BEPORTS. 700
holding administrator cannot attack deed for fraud on part of bis
intestate. See notes, 62 Am. Dec. 518; 62 Am. Dec. 546; 73 Am.
Dec. 228.
Where Two Sxecntors have Qualified and Acted in settling estate,
sale of property of estate by one is unauthorized.
Approved in Wright v. Diinn, 73 Tex. 295, 11 S. W. 331, and Esp-
ridge v. Patterson, 73 Tex. 419, 14 S. W. 1000, both reaffirming
rule; McLean v. Belvin, 47 Tex. 501, holding three executors being
appointed to administer estate, two cannot allow claim; Giddings v.
Butler, 47 Tex. 544, holding one of several joint executors cannot
execute power committed to them jointly; House v. Kendall, 55 Tex.
43, holding inoperative deed executed by one of two joint executors;
Mcllhenny Co. v. Todd, 71 Tex. 405, 10 Am. St. Eep. 757, 9 S. W.
447, holding inoperative deed by one of two joint assignees. See
note, 127 Am. St. Eep. 389.
Beservation of Life Estate in deed does not make it a will.
See note, 89 Am. St. Bep. 496.
Where Will Oives Executors Power to Sell and one fails to qualify,
power is exercisable by one qualifying.
See note, 80 Am. St. Rep. 102.
46 Tex. 575-578, LEON CX)UNTY V. HOUSTON.
Power Oivea to Officer to formally state certain facts which, when
stated as prescribed, become evidence of liability of another, is pub-
lic trust, which must be executed by such officer in prescribed
manner.
Approved in Sawyer v. Milam Co., 2 Posey U. C. 640, 641, reaffirm-
ing rule on very similar facts.
46 Tex. 678-584, BODOEBS v. DAILY.
One Entering upon Public Land under contract of purchase may,
on discovering that land is vacant, repudiate contract and be free
from all liability thereunder, and may pre-empt land.
Approved in Howard v. McKenzie, 54 Tex. 188, and Swetman v.
Sanders, 85 Tex. 299, 20 S. W. 126, both reaffirming rule; Hammers
V. Hanrick, 69 Tex. 415, 7 S. W. 349, holding purchaser under false
representations of ownership protected against all save vendor's
interest; Home v. Gambrell, 1 Tex. Ap. Civ. 559, reaffirming rulej
Lamb v. James, 87 Tex. 490, 29 S. W. 649, holding conveyance of
public land constitutes no consideration for promise to pay price;
Brinkley v. Smith, 12 Tex. Civ. 645, 35 S. W. 50, holding obligation
to convey public land does not prevent obligees from claiming under
homestead donation laws.
Distinguished in Williams v. Finley, 99 Tex. 473, 90 S. W. 1090,
adjusting rights where vendee bought from another improved land
afterward ascertained to belong to state school fund, and then pur-
chased from state as settler, and holder of notes given on first
purchase; James v. Lamb, 2 Tex. Civ. 187, 21 S. W. 173, holding
remedy for conveyance of public land under covenant of warranty,
action for damages.
46 Tex. 584-592, TOMPKINS v. TOLAND.
Damages may be Recovered for Unlawful Seizure of property of
estate under writ of sequestration.
701 NOTES ON TEXAS EEPDRTS. 46 Tex. 592-599
Approved in Jordan v. Meyer, 90 Tex. 546, 39 S. W. 1081, holding
4;ause of action for wrongful attachment arises when attachment
levied.
Statement of Witness is Admissible though it is a conclusion of
facts known to witness.
Approved in Port Worth etc. By. v. Greathouse, 82 Tex. 109, 17
S. W. 836, holding admissible opinion of witness as to shrinkage of
cattle in train wreck; Powers v. State, 23 Tex. Ap. 65, 5 8. W. 157,
holding opinion of witness a» to accused's manner of action admissi-
ble.
<}eneral Assignments of Errors will not be Considered unless ap-
parent that injustice has been done appellant.
Approved in St. Louis etc. B. Co. v. Dobie (Tex. Civ.), 75 S. W.
341, assignment of error that court erred in overruling defendant's
motion for new trial; Texas etc. By. v. Kirk, 62 Tex. 233, holding
general assignment of error not cons>idered unless error goes to
foundation of action; Handel v. Kramer, 1 Tex. Ap. Civ. 473, holding
assignment of errors must be specific; Brooks v. Price, 2 Posey U. C.
121, refusing to consider errors not specifically assigned; Campbell
V. H. & T. etc. B. B., 2 Posey U. C. 475, holding errors will not be
considered unless specifically assigned.
46 Tex. 592-599, TINSIiEY V. BOTKIN.
When Mortgage is Oiven to .secure two or more notes, payable at
different times, it may be foreclosed on default in payment of note
first due.
Approved in Garza v. Howell, 37 Tex. Civ. 587, 85. S. W. 462,
junior mortgagee may have foreclosure and sale of property subject
to claim of prior mortgagee whose debt not yet due, but cannot
effect contract between debtor and prior mortgagee by foreclosure
and sale to satisfy both liens; Hurley v. Barnard, 48 Tex. 87, hold-
ing not error, order of sale to satisfy mortgage though part not due;
Paris Exchange Bk. v. Beard, 49 Tex. 363, holding assignee of pur-
chase money note first maturing given no preference; Davis v. Cole-
man, 16 Tex. Civ. 316, 40 S. W. 608, holding all notes secured by
lien, whether due or not, could be adjudicated in one suit; Holland v.
Preston (Tex. Civ.), 41 S. W. 375, holding judgment of foreclosure
of one vendor's lien note, where property is not sold, does not bar
suit on other notes; Tidwell v. Starr (Tex. Civ.), 42 S. W. 779, hold-
ing erroneous, judgment on first vendor's lien note without providing
for others not yet due. See note, 24 L. B. A. 800.
Distinguished in Harrold v. Warren (Tex. Civ.), 46 S. W. 658,
holding under trust deed providing for sale on default in payment
of note, sale could not be made until default in payment of both
principal and interest. See note, 38 Am. Dec. 441.
Wbere Mortgage Secured by Several Notes is foreclosed on default
in payment of note first due, if interest on notes not due is not
rebated, court should have control of case until notes are satisfied.
Approved in Warren v. Harrold, 92 Tex. 420, 49 S. W. 365, and
Holland v. Preston, 12 Tex. Civ. 588, 34 S. W. 977, both reaffirming
rule; Nashville Trust Co. v. Smythe, 94 Tenn. 526, 45 Am. St. Bep.
755, 29 S. W. 906, 27 L. B. A. 663, holding assignees of notes secured
by vendor's lien share pro rata unless otherwise expressly provided;
Gillmour v. Ford (Tex. Sup.), 19 S. W. 443, holding judgment in
suit on notes where some not due reversible if interest not rebated;
46 Tex. 600-618 NOTES ON TEXAS REPORTS. 702
Yieno v. Gibson (Tex. Civ.)y 20 S. W. 718, holding two notes being
secured bj equal lien on same land, foreclosure may be had when
one matures; New York Life Ins. Co. v. English (Tex. Civ.), 70 S.
W. 443, where plaintiff entitled to recover on policy payable in ten
annual installments, court could enter judgment for installments as
they matured; Davis v. McGaughey (Tex. Civ.), 32 S. W. 448, hold-
ing vendor's lien, securing two notes, may be foreclosed when first
note ' matures if land incapable of division; Barbisch v. Oatman
(Tex. Civ.), 39 S. W. 192, holding in action on notes, same being not
yet due, interest should be so abated that on date of maturity judg-
ment and interest will equal amount due on note.
Distinguished in New York Life Ins. Co. v. English, 96 Tex. 273,
72 S. W. 59, where sum secured by life policy was payable in install-
ments, it was error to render judgment authorizing execution for each
future installment as it became due.
Mechanic's Lien cannot be Established unless all statutory require-
ments have been fulfilled.
Approved in Gaylord ▼. Loughridge, 50 Tex. 577, Huck v. Ga^lord,
50 Tex. 581, Ferguson v. Ashbell, 53 Tex. 249, Long v. McCauley,
(Tex. Sup.), 3 S. W. 692, and Warner etc. Mfg. Co. v. Houston (Tex.
Civ.), 28 S. W. 407, all reaffirming rule; Reese v. Corlew, 60 Tex. 72,
reaffirming rule on similar facts; Pool v. Sanford, 52 Tex. 634, holding
pleading in mechanic's lien suit omitting statutory requisites demurra-
ble; Bunton y. Palm (Tex. Sup.), 9 S. W, 183, holding loan of money
to build house, and use for that purpose, will not support mechanic's
lien; Lyon v. Elser, 72 Tex. 305, 12 S. W. 178, holding note taken
long after lumber furnished does not fix materialman's lien.
HuBband Alone may, Under Statute^ Contract for building of house
and fix mechanic's lien on homestead.
Approved in Miner ▼. Moore, 53 Tex. 229, reaffirming rule.
46 Tex. 600-605, LYNN v. BXTSBT.
Under Clause in Will Oiving Ilomestead as compensation for main-
taining person, he is only entitled to support as member of family, and
no pecuniary burden is placed on him for support.
Approved in McCreary v. Robinson, 94 Tex. 230, 59 S. W. 539, hold-
ing beneficiary entitled only to such support as given before testator's
death.
46 Tex. 606-610, BBOWNINO v. ATKINSON.
Boundary Line Fairly Agreed upon by land owners is conclusive
upon them though subsequently discovered to be erroneous.
Approved in Coleman v. Smith, 55 Tex. 260, Harn v. Smith, 79
Tex. 312, 23 Am. St. Rep. 342, 15 S. W. 241, and King v. Mitchell, 1
Tex. Civ. 704, 21 S. W. 52, all reaffirming rule; Cooper v. Austin, 58
Tex. 503, holding acquiescence and agreement of parties as to divid-
ing line conclusive. See notes, 67 Am. Dec. 620, 612; 110 Am. St.
Rep. 685.
46 Tex. 610-618, HICEOOCE v. BBLL.
Writ of Brror is Continuation of Proceedings in suit in which final
judgment has been rendered similar to proceedings on appeal and
not new suit.
Approved in Harle v. Langdon, 60 Tex. 564, and Texas Trunk Ry.
T. Jackson^ 85 Tex. 608, 22 S. W. 1032, both reaffirming rule.
703 NOTES ON TEXAS REPORTS. 46 Tex. 618-633
Sureties on Writ of Error Bond are not discharged by principal
being declared bankrupt after citation in error was served.
Approved in Burnett v. Waddell, 54 Tex. 275, holding sureties on
appeal bond not released by princi pal's discharge in bankruptcy;
Pinkard v. Willis, 24 Tex. Civ. 71, 57 S. W. 893, holding sureties
not discharged, though principal in claimant's bond discharged in
bankruptcy.
46 Tez. 618-626, SIMPSON y. FOSTER.
Nonresident Owner of Promissory Note is not liable for loss to
maker where owner's agent turns note over to Confederate govern-
ment under confiscation laws.
Approved in Lee v. Wilkins, 1 Posey U. 0. 302, reaffirming rule.
Foreign Executor or Administrator cannot Sue in state by virtue
of foreign letters testamentary or of administration.
Approved in Moseby v. Burrow, 52 Tex. 404, Terrell v. Crane, 55
Tex. 82, Summerhill v. McAlexander, 1 Tex. Ap. Civ. 308, and Hynes
V. Winston (Tex. Civ.), 54 S. W. 1069, all reaffirming rule.
Distinguished in Henry v. Roe, 83 Tex. 450, 18 S. W. SOa, holding
foreign administratrix having probate and will filed in state may
sue therein.
46 Tex. 625-627, HESTER Y, DT7PRET.
Sale of Land by Sheriff After Return Day of writ of execution is
void.
Approved in Mitchell v. Ireland, 54 Tex. 306, Terry v. Cutler, 4
Tex. Civ. 574, 23 S. W. 540, and Haney v. Millikin, 2 Tex. Ap. Civ.
170, all reaffirming rule; Cain v. Woodward, 74 Tex. 553, 12 S. W.
320, holding void, sale after return day of execution regardless of
indorsement thereon naming return day; Buckley v. Mason, 52 Neb.
642, 72 N. W. 1044, holding levy of execution released if not acted
upon before return day; Reagan v. Evans, 2 Tex. Civ. 40, 21 S. W.
429, holding writ of possession ineffective if not acted upon before
return day. See note, 76 Am. Dec. 83, 87.
46 Tex. 627-633, HENDERSON y. FORD.
Home of Sin^^e Man is not abandoned by absence therefrom while
in Confederate army.
Approved in Cliff v. Kaufman, 60 Tex. 65, holding store in which
intestate carried on business part of homestead; dissenting opinion
in Andrus v. Davis, 99 Tex. 306, 89 8. W. 774, majority holding
where school land awarded to settler .who after improvements left
it for eight months to attend distant normal school, there was an
abandonment.
Wife's Domicile Becomes That of Husband on marriage with inten-
tion of residing in Texas. -
Approved in Moores v. Wills, 69 Tex. 113, 5 S. W. 677, holding
place dedicated by husband as homestead is such, though wife never
lives there; Linares v. Linares (Tex. Civ.), 51 S. W. 511, holding
woman forced to leave husband by his cruelty retains rights in
homestead. See note, 47 Am. Dec. 347.
Distinguished in Linares v. De Linares, 93 Tex. 87, 53 S. W. 580,
holding husband's residence on land after separation from wife does
not constitute land homestead.
46 Tex. 633-645 NOTES ON TEXAS REPORTS. 704
Upon Wife's Marriage With Besldent of Tezaa, wife becomes enti-
tled to homestead rights on land owned bj husband in Texas.
Approved in Holland v. Zilliox, 38 Tex. Civ. 419, 86 S. W. 38,
where husband lived on land he had bought, but wife took children
to city and resided there for several years to work to get funds to
pay purchase price, intending to occupy land when paid for, land
was homestead; Clements v. Lacy, 51 Tex. 158, holding homestead
rights of wife, unaffected by temporary absence from state with
husband's consent. See' notes, 60 Am. Dec. 613, and 96 Am. Dec. 413.
Power to Sell Residence of Single Man is revoked by his marriage.
Approved in Donnan v. Adams, 30 Tex. Civ. 622, 71 S. W. 584,
registry of deed by land owner is notice to special agent and those
dealing with him of revocation of agent's authority to sell. See
note, 110 Am. St. Rep. 862.
Distinguished in Jordan v. Imthurn, 51 Tex. 289, holding deed of
trust given on homestead not invalidated by subsequent marriage.
46 Tex. 633-645, GALVESTON HOTEL 00. Y. BOLTOK.
Corporation Under Charter Fixing Capital Stock at given amount,
providing for deposit on subscription, and providing foi organiza-
tion when given amount of stock subscribed, cannot compel pay-
ment of subscription before whole capital stock is subscribed.
Approved in Orynski v. Loustaunan (Tex. Sup.), 15 S. W. 675,
676, reaffirming rule; Clegg v. Galveston Hotel Co., 1 Tex. Ap. Civ.
335, holding where capital stock fixed, no calls on subscriptions
enforceable until whole stock subscribed; Patty v. Hillsboro etc.
Mill Co., 4 Tex. Civ. 227, 23 S. W. 337, holding promoter of intended
corporation may withdraw subscription before organization; Arka-
delphia Cotton Mills v. Trimble, 54 Ark. 318, 15 S. W. 777, holding
subscription to corporation doing business enforceable though not
whole capital stock subscribed. See note, 93 Am. St. Rep. 370, 373.
Distinguished in Belton Compass Co. v. Saunders, 7(5 Tex. 704, 6
S. W. 136, holding subscription to be paid when sufficient stock sub-
scribed to carry out plans enforceable before whole stock subscribed.
NOTES
ON THE
TEXAS REPOETS
OASES IN 47 TEXAS.
47 Tex. 1-10, TOWNSEND v. QT7INAK.
Surety Becoming Judgment defendant may set off against assignee
of judgment claims purchased against judgment plaintiff without
notice of assignment.
Approved in Dutton v. Mason, 21 Tex. Ciy. 392, 52 S. W. 653, hold-
ing right to set off judgment not statutory, but equitable. See note,
23 L. B. A. 337.
47 Tez. 10-13, DEAN v. OBEKSHAW.
Wliere Beoord BhowB Judgment correctly rendered, fact that it
was rendered on immaterial issue is not ground for reversal.
Approved in Mainwarring v. Templeman, 51 Tex. 211, and Wassi-
nick V. Ireland (Tex. Sup.), 9 S. W. 204, both reaffirming rule; Swift
V. Trotti, 52 Tex. 504, holding that wrong reason does not invalidate
correct judgment.
47 T6K. 13-18, 'WHITTIiESEY Y. SPOFFOftD.
Account Stated is One Closed by Assent to its correctness by party
charged.
Approved in McCamant v. Batsell, 59 Tex. 369, holding that agree-
ment as to balance due makes an account stated; Cohen v. Sh warts
(Tex. Civ.), 32 S. W. 820, holding sale of single consignment with
entry of payment thereon not mutual current account exempt from
operation of statute; Dwight v. Matthews, 94 Tex. 537, 62 S. W. 1053,
holding account never agreed upon open.
Miscellaneous. — ^Texas Produce Co. v. Turner, 7 Tex. Civ. 213, 26
S. W. 919, miscited.
47 Tex. 18-21, DEAN T. LYONS.
To Balse Trust Bunning With Land as an encumbrance, facts must
be pleaded and proved.
Approved in Miller v. Yturria, 69 Tex. 555, 7 S. W. 209, holding
that to establish that absolute deed is mortgage, it must be proved
with clearness and certainty; Howard v. Zimpelman (Tex. Sup.),
14 S. W. 61, holding erroneous, charge that burden is on defendant
to establish "clearly and with certainty" that papers were given for
purpose other than expressed.
2 Tex. Notes— 45 (705)
47 Tex. 21-28 NOTES ON TEXAS EEP0BT8. 70$
Failure of Pleadings to Support Judgment is fundamental error
requiring its reversal.
Approved in City of Antonio v. Talerico, 98 Tex. 155, 81 S. W.
519, overruling of exceptions to petition had on general demurrer,
considered on appeal though complaint made, in one assignment, of
overrruling of general and various special demurrers raising distinct
questions; Carter v. Bolin (Tex. Civ.), 30 S. W. 1085, holding funda-
mentally erroneous, judgment not supported by verdict; 4iamo Fire
Ins. Co. V. Davis (Tex. Civ.), 45 S. W. 605, reaffirming rule; Missouri
etc. By. V. Chenault, 92 Tex. 504, 49 S. W. 1037, and Carpenter v.
Knapp, 1 Tex. Ap. Civ. 625, holding that such error may be raised
for first time on appeal.
47 Tex. 21-28» MABKHAM v. 0ABOTHEB&
Disclaimer by Party Sued for Land makes him competent to tes-
tify in action between plaintiff and an intervener to transactions
with plaintiff's intestate.
Approved in Jones v. Day, 40 Tex. Civ. 162, 88 8. W. 426, and
Mayfteld v. Bobinson, 22 Tex. Civ. 389, 390, 55 8. W. 401, both
reaffirming rule; Barrett v. Eastham, 28 Tex. Civ. 192, 67 S. W. 200,
where suit for land is against surviving husband and heirs of wife,
plaintiff claiming under mortgage executed by husband alone, who
disclaimed, husband competent witness; Newton v. Newton, 77 Tex.
511, 14 S. W. 158, holding that in suit by heir or devisee parties
may testify without restriction.
Distinguished in Bennett v. Virginia etc. Cattle Co., 1 Tex. Civ.
323, 21 S. W. 128, where warrantor has been made party to suit in
such way as to make judgment in favor of his vendees binding on
him; Burton v. Baldwin, 61 Iowa, 285, 16 N. W. Ill, holding dece-
dent's widow incompetent where she is made codefendant in suit,
even though she had no interest in common with other defendants
against plaintiff; and Sorensen v. Sorensen, 56 Neb. 737, 77 N. W.
70, holding petitioner for letters incompetent to testify as to her
marriage with decedent.
Exceptions to Bule that, witness shall not be excluded because he-
is party to or inter estied in issues will not be extended by con-
struction.
Beaffirmed in Hicks v. Patterson, 1 Tex. Ap. Civ. 149, and Soren-
sen V. Sorensen, 56 Neb. 734, 77 N. W. 69.
Distinguished in Ingersol v. McWillie, 9 Tex. Civ. 550, 30 S. W.
58, rule does not apply in a contest among parties, who do not claim
to be heirs, for letters of administration.
Defendant, Having Affirmative of Issue, may introduce in rebuttal
any evidence in direct answer to that produced by other party.
Approved in San Antonio etc. By. v. Bobinson, 79 Tex. 610, 15
S. W. 585, reaffirming rule; Wallis v. Wood (Tex. Sup.), 7 S. W. 856,
holding not error to permit defendants to offer evidence on plea
after plaintiff closed rebutting evidence.
Party is Only Required to make prima facie case in opening till
he finds on what points opening case is attacked, then fortify it on
these points.
Affirmed in Mahan v. Wolf, 61 Tex. 490, G. C. & S. F. By. v. Hol-
liday, 65 Tex. 519, and Carroll v. Watson, 1 Tex. Ap. Civ. 174.
Distinguished in Snow v. Starr, 75 Tex. 417, 12 S. W. 675, where
court announced to parties in advance that they must introduce
707 NOTES ON TEXAS BEPOBTS. 47 Tex. 28-37
all their testimony in chief, except strictly rebutting evidence; Ayers
V. Harris, 77 Tex. 120, 13 S. W.. 773, holding rule changed by article
1297, Bevised Statutes.
Verbal Trust in Lands must be established with clearness and cer-
tainty.
Approved in Goodrich v. Hicks, 19 Tex. Civ. 531, 48 S. W. 799, and
Cunio V. Burland, 1 Posey U. C. 471, both reaffirming rule; East
Line etc. B. B. v. Garrett, 52 Tex. 139, holding clear and satisfactory
evidence necessary to engraft contemporaneous condition on deed;
Miller v. Yturria, 69 Tex. 554, 7 S. W. 209, holding clear and certain
proof necessary to make deed mortgage; Focke v. Buchanan (Tex.
Civ.), 59 S. W. 822, verbal trust must be established by clear and
certain evidence.
Overruled .in Howard v. Zimpelman (Tex. Sup.), 14 S. W. 61, hold-
ing erroneous, charge that to ingraft parol trust on written instru-
ment it must be proved with clearness and certainty.
It Is Brror to Charge upon an issue not made by pleadings.
Approved in Loving v. Dixon, 56 Tex. 79, Commlnge v. Stevenson,
76 Tex. 645, 13 S. W. 558, Texas etc. By. v. French, 86 Tex. 98, 23
S. W. 644, T. B. k H. By. v. Montgomery, 4 Tex. Ap. Civ. 405, 16
S. W. 180, Hall V. Johnston, 6 Tex. Civ. 116, 24 S. W. 864, and
CampbeU v. H. k T. C. B. B., 2 Posey U. C. 477, all reaffirming rule;
Goode Y. State, 16 Tex. Ap. 413, holding that charge must be con-
fined to issues in criminal case; Bagley Lumber Co. v. Goldsmith
(Tex. Civ.), 66 S. W. 582, applying rule in action by employee against
master for damages for personal injuries.
In Defining Clearness and Certainty in proof required to establish
verbal trust in lands, it is error to state ''trust must be proved
beyond reasonable doubt."
Approved in Sparks v. Dawson, 47 Tex. 146, reaffirming rule; Monks
V. McGrady, 71 Tex. 140, 8 S. W. 620, applying rule of clearness
and certainty in suit to reform deed for fraud or mistake; Smith r.
Eastham (Tex. Civ.), 56 8. W. 219, holding erroneous charge that
deed is presumed to be what it purports to be, until ''clearly" proved
otherwise to "satisfaction" of jury.
47 Tex. 28-37, COOK v. BPABEB.
Motioa to Set Aside Leivy for merely formal defect will not lie
after return of writ.
Beaffirmed in Irvin v. Ferguson, 83 Tex. 496, 18 S. W. 821. See
note, 58 Am. Dee. 99.
Motion to Set Aside Levy is proper practice in Texas.
Approved in Wilson v. Aultman (Tex. Civ.), 39 S. W. 1104, holding
motion in original proceeding proper proceeding to set aside sale
under execution.
Writ of Venditioni Exponas issued after death of judgment debtor,
property being bought by judgment creditor, is voidable as between
parties, and may be set aside on motion.
Approved in Laughter v. Seela, 59 Tex. 179, holding that purchaser
at execution sale might be protected even though execution not
issued within year from rendition of judgment; Fleming v. Ball,
25 Tex. Civ. 210, 60 S. W. 985, sale of land under execution eight
years after death of judgment debtor void. See note, 61 L. B. A.
384.
47 Tex. 37-56 NOTES ON TEXAS EEPOBTa 708
47 Tex. 37-42, MOOBIKa T. CAMPBELL.
Occupant in Adverse Possession, with all his improvementt, on
land belonging to another, acquires title to six hundred and forty
acres, including improvemeupts.
Approved in Bracken y. Jones, 63 Tex. 187, holding that possession
cannot be extended by construction beyond actual occupancy, where
naked possession alone is relied on; Craig v. Cartwright, 65 Tex. 424,
notice of limits to which disseisor claims is not essential to be given
otherwise than by open, notorious possession; Alexander v. Newton,
11 Tex. Civ. 621, 33 S. W. 306, holding that claim under five years'
statute of limitations must be fixed and certain, serving notice of
boundaries of hostile claim and possession.
47 Tex. 42-^6, THOlftAS v. HAMMOND.
Agreement Which may or may not be performed within a year is
not required to be in writing.
Approved in Qonzales v. Chartier, 63 Tex. 37, McDonnell v. Home
Bitters Co., 1 Tex. Ap. Civ. 660, Murphy v. Service, 2 Tex. Ap. Civ.
657, Long Mfg. Co. v. Gray, 13 Tex. Civ. 180, 35 S. W. 35, Seddon v.
Rosenbaum, 85 Va. 933, 9 S. E. 328, 3 L. B. A. 337, and Warner v.
Texas etc. By., 164 U. S. 432, 17 Sup. Ct. Bep. 153, 41 L. 503, all
reaffirming rule; Eppstein v. Wolfe (Tex. Civ.), 35 S. W. 52, holding
agreement for sufficient consideration to pay debt due another is not
within statute of frauds; Clark v. Beese, 26 Tex. Civ. 622, 64 S. W.
785, it must appear from contract itself that it is not to be per-
formed within a year. See valuable notes in 93 Am. Dec. 86, 87;
51 Am. St. Bep. 302; 3 L. B. A. 340.
Where Writing Forms Part of More Oomprehensive Transaction,
terms of which are not expressed in writing, parol evidence of such
parts of transaction as are not reduced to writing is admissible.
Approved in Missouri etc. By. Co. v. Doss (Tex. Civ.), 36 S. W.
498, reaffirming rule; Weir Plow Co. v. Evans (Tex. Civ.), 24 S. W.
40, holding parol evidence admissible to show that contract for
release consisted of separate writings; Tansen v. Yturria (Tex. Civ.),
48 S. W. 797, holding defendant in suit on note may plead and
prove circumstances of execution and failure of consideration of
note; Johnson v. Elmen, 94 Tex. 175, 86 Am. St. Bep. 845, 59 S. W.
255, 52 L. B. A. 162, parol admissible to show grantee's agreement
to assume lien.
Distinguished in Coverdill v. Seymour, 94 Tex. 8, 57 S. W. 39, where
evidence tends to vary written contract.
Parol is Admissible to Show Agreement, distinct and collateral to
written contract.
Approved in James v. King, 2 Tex. Ap. Civ. 489, Henry v. Mc-
Cardell, 15 Tex. Civ. 499, 40 S. W. 173, Nowliu v. Prichott, 11 Tex.
Civ. 445, 32 S. W. 833, and Peel v. Giesen, 21 Tex. Civ. 335, 51 S.
W. 44, all reaffirming rule; East Line etc. B. B. v. Scott, 72 Tex.
78, 13 Am. St. Bep. 767, 10 S. W. 104, applying rule ,to judgment
and oral contract not made a part of it; Strauss v. Gross, 2 Tex.
Civ. 437, 21 S. W. 307, holding parol admissible to explain indefinite
terms of writing; Gulf etc. By. v. Pittman, 4 Tex. Civ. 171, 23 S. W.
319, holding parol admissible to show contract not stated in main
writing consistent with it, and serving to explain its uncertainties;
Ward V. Gibbs, 10 Tex. Civ. 294, 30 S. W. 1127, holding that anterior
agreement made for purpose of providing for satisfaction of debt
709 NOTES ON TEXAS BEPORTS. 47 Tex. 5&-72
does not contradict judgment subsequently taken under it; Green v.
Gresham, 21 Tex. Civ. 604, 53 S. W. 384, holding that deed of land
for school purposes is not varied bj parol agreement that house to
be erected thereon was to remain property of school district.
Distinguished in Belcher v. Mulhall, 57 Tex. 21, where evidence
contradicts or varies vrritten contract; Westmoreland v. Carson, 76
Tex. 623, 13 S. W. 560, limiting rule to matters which, under other
rules of evidence, may be established by parol; Bubrecht v. Powers,
1 Tex. Civ. 285, 21 S. W. 320, where writing embraces a whole con-
tract which does not consist of distinct parts; Willis v. Byars, 2
Tex. Civ. 136, 21 S. W. 321, where written agreement appears on
its face to be complete.
Parol Agreement^ by which purchase money notes were to be depos-
ited to pay outstanding liens against land may be shown in defense
to action on notes.
Approved in Etter v. Dugan, 1 Posey U. 0. 170, holding that maker
of note may prove parol contract that he would not be liable on
note if compelled to surrender goods under judicial process. See
note, 128 Am. St. Bep. 621.
Consideratioii of Contract for sale of lands, or to pay debt of
another need not be in writing.
Approved in G. H. & S. A. By. v. Ehren worth, 1 Tex. Ap. Civ.
432, Northington v. Tuohy, 2 Tex. Ap. Civ. 283, Milburn Mfg. Co. v.
Tucker, 3 Tex. Ap. Civ. 553, and Gulf etc. By. v. Jones, 82 Tex. 162,
17 S. W. 536, all reaifirming rule; Finn v. Kmg, 13 Tex. Civ. 45,
34 S. W. 1616, holding parol admissible to show real consideration for
deed.
Parol is Admissible to establish trust ill lands.
BeafSrmed in Fulton v. Bobinson, 55 Tex. 405.
In Absence of Express Averment In Aniwer that agreement was
verbal, it will not be presumed.
Cited in 86 Am. Dec. 686, note.
In Caee of Breach of Coyenant against encumbrances, measure of
damages is value of land lost as compared with balance of land,
assuming price agreed upon as value of whole.
Beaffirmed in Hynes v. Packard, 92 Tex. 40, 45 S. W. 563.
47 Tex. 56-72, 26 Am. Bep. 289, HUDSON v. CUEBO LAND ETC.
OO.
Preference is Given, by Statute, in granting ferry franchise to
riparian owner, on* stream across which ferry has been established,
upon his complying with statutory conditions.
Approved in Tugwell v. Eagle Pass Ferry Co., 74 Tex. 489, 9 S.
W. 122, holding it questionable whether such preference obtains at
points where public roads are established across the stream. See
note, 59 L. B. A. 529, 531.
Legislature may Bevoke Preference to ferry franchise given to
riparian owner.
Approved in Laredo v. Martin, 52 Tex. 561, holding that state will
not be held to have devested city of ferry franchise by implication —
intent must clearly appear; Victoria Co. v. Victoria Bridge Co., 68
Tex. 67, 4 S. W. 141, holding that in construing charters doubt will
always be resolved in favor of state and public.
Establishing and Maintaining Public Ferries, and charging toll
is franchise, subject to control of legislature, or municipal authorities,
to which it has been committed by it.
47 Tex. 73-89 NOTES ON TEXAS BEPOBTS. 710
Approved in Hackett ▼. Wilson, 12 Or. 83, 6 Pac. 654, and Mont-
gomery V. Multnomah B7., 11 Or. 349, 3 Pac. 437, holding that ferry
can only exist in connection with some highway, or place where
public have rights; Laredo v. International Bridge etc. Co., 66 Fed.
248, holding that Texas legislature may grant ferry franchises to
corporations and individuals — exclusive grant is not monopoly. And
see notes, 3 Am. St. Bep. 496; 32 Am. St. Bep. 554; 59 L. B. A.
525, 542; 37 L. B. A. 712.
Erection by Legislative Antborlty of Toll-bridge in highway across
stream when ferry previously operated by riparian owner imposes bo
additional servitude.
See notes, 106 Am. St. Bep. 266; 58 L. B. A. 158.
DlBcretlon In Charter to Erect Bridge at ''town of Clinton" is
sufficiently complied with where there had been ferry at point for
over thirty years, though not within town limits.
See note, 58 L. B. A. 159.
Act Oranting Bridge Oliarter operates as pro tanto repeal of county
courts' general power to establish ferries.
See note, 59 L. B. A. 524.
If Chraatee of Ferry Franchise uses property of riparian owner or
if additional servitude is imposed, grantee must make compensation.
See note, 59 L. B. A. 537.
47 Tex. 7S>89, GEOBOE v. DEAN.
When Eights of Large Nmnber of Persons involved, or multiplicity
of suits may be avoided, equity may prevent collection of tax.
Approved in Bobertson v.* Breedlove, 61 Tex. 320, holding that dis-
trict court has power to issue writs of injunction, regardless of
amount in controversy; Court v. O'Connor, 65 Tex. 339, holding that
injunction lies to restrain tax sale of real estate; Galveston etc. By.
V. Dowe, 70 Tex. 8, 7 6. W. 369, holding injunction proper to restrain
multiplicity of suits; Morris v. Cummings, 91 Tex. 621, 45 S. W.
385, holding that any one or all persons sought to be illegaUy taxed
may join in petition to restrain collection.
Failure of Consolidated Boll to exhibit amount of school tax
legally levied is not ground for enjoining collection of tax.
Approved in Wright v. Jones, 14 Tex. Civ. 430, 38 S. W. 252, and
Bhomberg v. McLaren, 2 Tex. Civ. 395, 21 8. W. 572, holding failure
of assessor to provide separate assessment-rolls for school tax not
ground for injunction; Sound Investment Co. v. Bellingham Bay Land
Co., 45 Wash. 641, 88 Pac. 1119, where taxes on various lots were
assessed in bulk for certain years and defendant claimed right to
redeem by paying taxes for years when lots separately assessed, de-
fendant should have requested finding of amount due on each lot
when assessed in bulk and offered to pay such amount as well as
amount for years when separately assessed. See note, 22 L. B. A.
702.
Equity will Enjoin Collection of Taxes only in cases where parties
entitled to be relieved from payment of tax.
Approved in Bed v. Johnson, 53 Tex. 288, holding that petition
showing no damage about to be suffered by tax sale except that
sale would cast cloud on title will not authorize injunction against
collection of tax; Schmidt v. Galveston etc. By. (Tex. Civ.), 24 S.
711 NOTES ON TEXAS EEPORTS. 47 Tex. 90-119
W. 549, holding injunction lies to restrain sale of property levied
on to pay tax legally assessed. See notes, 69 Am. Dec. 200, 201, 204;
22 L. B. A. 704; 7 L. R. A. 182.
Until Property ia Assessed in manner prescribed by law, neither
taxpayer nor property is liable for it.
Approved in People's Nat. Bank v. Ennis (Tex. Civ.), 60 S. W. 634,
holding void tax levy creates no liability against person or property;
House V. State (Tex. Civ.), 54 8. W. 33, holding suit for taxes not
maintainable antil property has been legally assessed.
LeglslatlTe Act Authorizing Oonnty to issue bonds, and providing
for payment of interest and for sinking fund to meet principal is
authority for county tax for that purpose.
Reaffirmed in Labadie v. Dean, 47 Tex. 101.
Party Seeking to Bestraln lUegal Tax must oifer to pay amount
of tax legally due.
See note, 22 L. B. A. 703.
47 Tex. 90-102, LABADIE v. DEAN.
Indlvldaal Bond of Appellants is not such appeal bond as is re-
<iuired by statute.
Reaffirmed in Daniels v. Larandon, 49 Tex. 219.
Distinguished in Saylor v. Marx, 56 Tex. 91, 92, where defect in
bond waived by failure of appellee to object in time; Heidenheimer
V. Bledsoe, 1 Tex. Ap. Civ. 134, and Sampson v. Solinsky, 75 Tex.
664, 13 S. W. 67, holding that surety for costs in justice court may
become surety on appeal bond.
Term of Court Oontinues until ended by order of adjournment, or
by efflux of time fixed by law for its continuance.
Reaffirmed in Clegg v. Galveston Co., 1 Tex. Ap. Civ. 28.
Failure of Oonrt to Meet at Hour or on day to which recess taken
does not end term.
Approved in Schofield v. Horse Springs Cattle Co., 65 Fed. 435,
holding that term does not terminate before limit set by law, because
of absence of judge.
Sessions of Oourt During Term are entirely within discretion and
control of court.
Reaffirmed in Smurr v. State, 105 Ind. 13Q, 4 N. E. 448.
Mere Defects in Form of consolidated tax-roll is not ground for
enjoining collection of tax.
Cited in 69 Am. Dec. 200, note.
Where Iiovy of County Poll Tax is made by legislature, there is
no necessity for levy by county court.
See note, 29 L. R. A. 412.
47 Tex. 109-119, LITTIiETON v. GIDDINGS.
Duplicate Deed, executed according to civil law, before colony
judge, and deposited in his office, is not notice to subsequent pur-
chaser.
Approved in Uhl v. Musquez, 1 Posey U. C. 658, holding presence
of original deed, as archive, in office of county clerk, not effective as
registry notice.
Notice to One Interested with subsequent purchaser in purchase is
noticdftg such subsequent purchaser.
App^ed in Jackson v. Waldstein (Tex. Civ.), 27 S. W. 28, holding
knowledge of one partner in land transaction imputed to other
47 Tex. 121-138 NOTES ON TEXAS EEPOBTS. 712
partners and their assignees; Harris v. Yon Rosenberg (Tex. Civ.),
26 S. W. 309, holding purchaser having knowledge of facts sufficient
to put him on inquiry is not bona fide purchaser.
Distinguished in Eippetoe v. I>wyer, 65 Tex. 709, where cotenant
upon whom notice of encumbrance is sought to be fixed had no notice
of facts to put him on inquiry.
Where Purchaser has Notice of Such Facts as would put prudent
man on inquiry as to former conveyance, he does not use diligence
by examining records and inquiring of vendor himself, if inquiry
among vendor's neighbors would reveal former conveyance.
Approved in Be Wagner, 110 Fed. 939, mortgagee with knowledge
of the placing of improvements likely to give rise to mechanic's lien
is not justified in accepting the mere statement of mortgagor that
they have been released.
47 Tex. 121-130, SMITH T. OBOSBT.
Contract for Joint Acqnlsitlon of Land by location of certificates,
not for acquiring corresponding number of acres in a body, is sever-
able.
Approved in Doss t. Slaughter, 53 Tex. 238, holding that where
certificate located on separate tracts, locator's interest attaches to
each survey.
Contract for Joint Acquisition of Land by location of certificate
is not contract for sale of land within statute of frauds.
Distinguished in Sprague v. Haines, 68 Tex. 217, 4 S. W. 372, hold-
ing parol contract, whereby attorney is to receive part of land as
fee for removing cloud, within statute.
47 Tex. 131-138, 8ALAD0 OOLLEOE v. DAVI&
Attorney's Fees cannot be Recovered as damages for bringing action
without good ground.
Approved in Strauss v. Dundon (Tex. Civ.), 27 S. W. 5C3, denying
right to recover attorney's fees in action for damages for malicious
attachment; Tunstall v. Clifton (Tex. Civ.), 49 S. W. 245, holding
damages not recoverable for bringing act before debt is due. Cited
in 8 Am. St. Bep. 158, note.
Bringing Action Without Good Ground is not actionable.
Beaffirmed in Dibrell v. Bobinson, 1 Tex. Ap. Civ. 394.
Award of Costs is Full Compensation for vexation caused by institu-
tion of groundless suit.
Beaffirmed in Brooks v. Price, 2 Posey XT. C. 120.
Bale of Land on Stream with mill privileges, with prohibition
against raising water beyond stipulated point, is not guaranty of
sufficiency of water-power to run machinery.
See note, 67 L. B. A. 377.
In Action for Trespass on Property of corporation, acts and declara-
tions of individual trustees not authorized by board are inadmissible
against plaintiff.
See note, 131 Am. St. Bep. 322.
Where Deed Prohibiting Raising of Water so as to overflow springs
along stream, if water of springs in place where they issued from
ground are overflowed by erection of dam, deed is violated.
See note, 59 L. B. A. 835.
713 ' NOTES ON TEXAS EEPORTS. 47 Tex. 138-148
47 Tez. 188-148, SPARKS v. DAWSON.
Jury Shonld Never be Charged that "fraud cannot be presumed,
but must be proved."
Approved in Weaver v. Ashcroft, 50 Tex. 443, Schmick v. Noel,
72 Tex. 6, 8 S. W. 85, Sanger v. Colbert, 84 Tex. 672, 19 S. W. 865,
Baxter v. Howell, 7 Tex. Civ. 200, 26 S. W. 454, and Braekett v.
Hinsdale, 2 Posey TJ. C. 472, all reaffirming rule; Rohrbough v. Leo-
pold, 68 Tex. 260, 4 S. W. 463, holding instruction "allegations of
fraud must be established by clear proof" properly refused; Heilig-
mann v. Rose, 81 Tex. 224, 26 Am. St. Rep. 805, 16 S. W. 931, 13
L. R. A.' 272, sustaining refusal of instruction in civil suit, "plaintiff's
case must be established beyond reasonable doubt"; Wallace v. Berry,
83 Tex. 330, 18 8. W. 596, holding it error to charge jury that burden
is on defendant to prove deed a mortgage clearly and satisfactorily
to their minds; Rider v. Hunt, 6 Tex. Civ. 241, 25 S. W. 315, holding
charge that "fraud must be proved by clear and satisfactory evi-
dence" erroneous; Cook v. Greenberg (Tex. Civ.), 34 S. W. 689, hold-
ing charge that "fraud cannot be presumed, but must be proved,"
without proper explanation, is error; Pace v. American etc. Land Co.,
17 Tex. Civ. 510, 43 8. W. 36, holding issues in civil case not required
to be established beyond reasonable doubt; Gramud v. Rea, 24 Tex.
Civ. 300, 59 S. W. 842, holding charge that fraud can never be pre-
sumed, erroneous. See valuable notes in 65 Am. Dec. 159, 161; 70
Am. Dec. 291.
Distinguished in Ney t. Rothe, 91 Tex. 377, holding charge that
fraud should be clearly proved good; Wylie v. Posey, 71 Tex. 39, 9
S. W. 89, Btistaining charge that "plaintiff must establish fraud to
satisfaction of jury to reasonable certainty."
Charge That Jnry Should be Satisfied beyond reasonable doubt,
when used in civil cases, is misleading and erroneous.
Approved in Cox v. Thompson, 37 Tex. Civ. 609, 85 S. W. 34, in
action for penalty on liquor dealer's bond, plaintiff may recover on
preponderance of evidence; Elliott v. Ferguson, 37 Tex. Civ. 48, 83
S. W. 60, in suit to enjoin threatened nuisance, charge that burden
is on plaintiff to show beyond reasonable doubt that use of grounds
for cemetery will probably poison water in wells is erroneous; Can-
tine V. Dennis (Tex. Civ.), 37 S. W. 187, holding charge that parol
trust must be clearly and satisfactorily established is erroneous; Smith
V. Eastham (Tex. Civ.), 56 S. W. 219, holding erroneous charge that
allegation that instrument, apparently deed, is mortgage, must be
"clearly" proved to satisfaction of jury.
Distinguished in Hirsch v. Jones (Tex. Civ.), 42 8. W. 606, holding
correct, charge that defendant must clearly show by fair preponder-
ance of evidence that he did not understand written instrument.
Charge npon Weight of Evidence is prohibited by statute.
Approved in Johnson v. Brown, 51 Tex. 75, holding that only rules
of law to be obeyed should be given in charge.
Miscellaneous. — Dawson v. Sparks, 1 Posey TJ. C. 740, same case
on second appeal; American Land etc. Co. v. Pace, 23 Tex. Civ. 248,
56 S. W. 391, as instance where fraud was alleged as ground of relief
from written instrument; Groesbeck v. Golden (Tex.), 7 S. W. 365,
holding recent decision contrary to all preceding decisions is not
stare decisis.
47 Tex. 148-173 NOTES ON TEXAS BEPOBTS. 714
47 Tex. 148-154, HOXJGH v. BILL.
Grants Under Power to Sell, passes title, without referring to power.
Approved in Faulk v. DasMell, 62 Tex. 647, Link v. Page, 72 Tex.
595, 10 S. W. 700, Hill v. Conrad, 91 Tex. 344, 43 S. W. 790, Trimt7
Co. Lumber Co. v. Pinckard, 4 Tex. Civ. 681, 23 S. W. 723, and Connoly
V. Hammond, 58 Tex. 14, all reaffirming rule; Hunter y. Eastham
(Tex. Civ.), 67 S. W. 1082, where one has no interest in land, save
under power to sell, his deed in own name conveying his "interest"
passes owner's title; Connolly v. Hammond, 51 Tex. 649, holding
irrevocable power of attorney sufficient to support deed; Pope v.
Davenport, 52 Tex. 220, holding that mistaken recital of source of
power does not avoid act if power exists; Edens v. Simpson (Tex.
Sup.), 17 S. W. 789, holding power of attorney not revoked by subse*
quent conveyance of land by owner; Williams v, Hardie (Tex. Civ.),
21 S. W. 269, holding surviving wife's deed to community property
not invalidated by erroneous recital of aut.hority as administratrix.
Grant, by One Having Power to Sell, passes whole interest of
grantor, whether derived fropi appointment or in his own right.
Approved in Smith v. Shinn, 58 Tex. 4, and Bennett v. Virginia etc.
Cattle Co., 1 Tex. Civ. 325, 21 S. W. 128, both reaffirming rule; Hen-
derson V. Smith, 62 Fed. 710, applying rule to trust deed in execution
of power conferred by will; Hill v. Conrad (Tex. Civ.), 41 S. W. 542,
holding title to lot conveyed not defeated by failure to specify source
of title to particular lot.
Erroneons Instmction on Material Point which may have misled
jury entitles appellant to reversaL
Cited in 60 Am. Dec. 200, note.
47 Tex. 164-164, DAVIS v. WILLIS.
Any Act Done by One Member within scope of partnership, after
dissolution and before actual notice to customers, is binding on all
members.
Beaffirmed in Long v. Garnett, 59 Tex. 233. See note, 26 Am. Dec.
292.
At DijMOIation of Partnership, and after actual notice to customers,
members cannot create obligations which will bind firm or change
character of those existing.
Beaffirmed in Green v. Waco State Bank, 78 Tex. 3, 14 S. W. 253.
If Defendants Fail to Object in time to nonjoinder of co-obligors,
they cannot afterward complain.
Approved in Stresan v. Fidelli, 1 Tex. Ap. Civ. 488, reaffirming
rule; Alamo Fire Ins. Co. v. Schmitt, 10 Tex. Civ. 553, 30 S. W. 834,
holding nonjoinder immaterial where no objection made thereto.
Nonjoinder of Joint Obligor should be pleaded in abatement, unless
abatable matter appear in plaintiff's pleading.
Approved in Hinchman v. Biggins, 1 Tex. Ap. Civ. 120, reaffirming
rule; Perez v. Everett, 73 Tex. 433, 11 S. W. 389, holding that non-
joinder of parties must be especially pleaded before trial; Caldwell
V. Lamkin, 12 Tex. Civ. 35, 33 S. W. 318, sustaining plea and abate-
ment to attachment bond for defects outside of record.
47 Tex. 16&-173, OATLIN ▼. BSNNATT.
Vendor of Land Who has Executed Bond for title, placed purchaser
in possession, and transferred or collected purchase notes, retains
legal title as trustee, and has no interest subject to execution.
715 NOTES ON TEXAS BEPOBTa 47 Tex. 173-191
Approved in Brotherton v. Anderson, 27 Tex. Civ. 589, 66 S. W.
683, Cassaday v. Frankland, 55 Tex. 458, and Frankland v. Cassaday,
62 Tex. 424, all reaffirming rule; Bussell v. Kirkbride, 62 Tex. 457,
and Hamblen v. Folts, 70 Tex. 136, 7 S. W. 836, holding that vendor
assigning purchase notes holds as trustee for whoever may become
entitled to the land.
Under Registration Laws, unless title bonds are recorded, they are
void as to creditors acquiring liens, and subsequent purchasers with-
out notice.
Approved in Blum v. ^chwartz (Tex. Sup.), 20 S. W. 56, holding
execution purchaser unaffected hj prior unrecorded deed, where
creditor without knowledge thereof when execution was levied; Le
Doux V. Johnson (Tex. Civ.), 23 S. W. 905, holding lien acquired by
levying attachment superior to unrecorded deed of which attaching
creditor had no knowledge.
Under Plea of not Guilty, defendant, in trespass to try title, may
set up any defense applicable to action, but cannot, without further
plea, obtain affirmative equitable relief.
Beaffirmed in Williams v. Barnett, 52 Tex. 132. Approved in
Moore v. Snowball, 98 Tex. 26, 107 Am. St. Bep. 596, 81 S. W. 9,
66 L. B. A. 745, adverse judgment in suit to remove cloud and recover
land sold for taxes, because sale void because made in bulk for
property part of which is homestead, no bar to suit to set aside
sheriff's deed for irregularities in sale leading to inadequate price.
Purchaser at Execution Sale takes only title which judgment debtor
has subject to execution.
Cited in 82 Am. Dec. 613, note.
Distinguished in McAfee v. Wheeler, 1 Posey TJ. 0. 72, holding
that knowledge of purchaser at execution sale of purchase money
lien will not prevent his taking good title, as against lienor; Ste-
venson ▼. Texas By., 105 U. S. 708, 26 L. 1217, holding that purchaser
at execution sale may claim protection under statute as purchaser,
even though creditor not protected as such.
Miscellaneous. — Biordan v. Britton, 69 Tex. 204, 5 Am. St. Bep. 39,
7 S. W. 53, and Cavanaugh v. Peterson, 47 Tex. 204, miscited to point
that sheriff need not take possession of land when making levy.
47 Tex. 178-179, LONG v. WALKER.
Husband Having Sold Community Property during lifetime of wife
and given bond for title, could execute deed, in pursuance thereto
after death of wife, without filing inventory and appraisement.
Approved in Green v. Grissom, 53 Tex. 435, holding that failure
to sign and swear to inventory of community property does not
invalidate deed by surviving wife; Hilbum v. Harris, 2 Tex. Civ.
398, 21 S. W. 573, holding that surviving wife has right to convey
community property to satisfy prior obligation of both parents to
their son for support; Wi throw v. Adams, 4 Tex. Civ. 445, 23 S. W.
439, holding that failure of inventory to list community property
does not affect widow's right to sell it. See note, 76 Am. Dec. 80.
47 Tex. 180-191, JEMISON v. HAI.BEBT.
Pnrchasem Pendente Lite may or may not be made parties, and
are bound by decree against their vendor.
Approved in Wipff v. Heder (Tex. Civ.), 41 8. W. 166, reaffirming
rule; Clay Co. Land etc. Co. v. Wood, 71 Tex. 465, 9 S. W. 342, holding
47 Tex. 197-208 NOTES ON TEXAS DEPORTS. 716
that purchaser pendente lite may be made party defendant and be
heard to assert his title; Randolph v. State, 73 Tex. 487, 11 S. W.
488, holding that plaintiff may make purchaser pendente lite party
to suit for land.
Vendor Who haa Executed Title Bond and transferred purchase
notes has no interest in land subject to execution.
Reaffirmed in First Nat. Bank v, Ackerman, 70 Tex. 319, 8 S. W.
46.
Purchaser at Execution Sale is entitled to be subrogated to Uen of
judgment creditor.
Approved in Owens v. Heidbreder (Tex. Civ.), 44 S. W. 1087, hold-
ing purchaser under foreclosure of mechanics' liens entitled to sale
of improvements to satisfy liens as against mortgagee not made party.
Distinguished arguendo in McKin v. Williams, 48 Tex. 93, where
sale was under judicial process and not a voluntary alienation.
Lien for Purchase Money ia superior to lien of subsequent judgment
and is not lost by taking conveyance.
Approved in Silliman v. Gammage, 55 Tex. 371, 372, holding that,
to prevent injustice, equity will keep mortgage alive, although in
law it may have been satisfied and parties so intended. See note,
82 Am. Dec. 612.
47 Tex. 197-208, OAVANAXJGH ▼. PETERSON.
Sheriff Need not Go upon Land to make valid levy.
Approved in Sanger v. Trammell, 66 Tex. 361, 1 S. W. 378, hold-
ing article 2291, Revised Statutes, declaratory of rule.
Defectiye Entry of Levy Does not Vitiate Sale where there is valid
judgment, execution, and sheriff's deed, and purchaser has no notice
of fraud in levy.
Approved in Donnebaum t. Tinsley, 54 Tex. 366, holding that
failure of officer to require debtor to point out property before levy
does not affect title of purchaser without notice. See, also, notes, 65
Am. Dec. 173, and 70 Am. Dec. 401.
Mortgage Being Valid at Time of Execution, fact that it was not
recorded until after suit brought to recover land for fraud does not
invalidate mortgage lien.
Approved in House v. Robertson (Tex. Civ.), 34 S. W. 642, hold-
ing title of execution purchaser not invalidated by irregularity in
sheriff's return on execution.
Bona Fide Judgment Creditor, without notice, may sell land levied
on, and purchaser with notice at such sale takes good title.
Approved in Le Doux v. Johnson (Tex. Civ.), 23 S. W. 905, reaf-
firming rule; Shepard v. Hunsacker, 1 Posey U. C. 583, holding judg-
ment creditor's lien superior to unregistered deed, but attaches only
to debtor's title; West v. Loeb, 16 Tex. Civ. 401, 42 8. W. 613, hold-
ing that bona fide purchaser at execution sale takes land as against
prior unrecorded claims.
Miscellaneous. — ^Wichita etc. Ry. v. Peery, 87 Tex. 598, 30 S. W.
435, cited as showing facts not reported in main case on rehearing
to show notice of appeal not disclosed in transcript; Hollon v. Hale,
21 Tex. Civ. 196, 51 S. W. 901, cited to point that levy on land is
not satisfaction of judgment and noting conflict of authorities (see
last case); Bonner v. Hearne, 75 Tex. 252, 12 S. W. 40, cited argu-
endo while noting conflict in authorities.
717 NOTES ON TEXAS BEPOBTa 47 Tex. 208-220
i7 Tez. 208-209, GORDON ▼. STATE.
In Salt to B«noye Officer, appeal dismissed because term of office
had expired.
Approved in Lacoste v. Duffy, 49 Tex. 769, 30 Am. Rep. 123, Rob-
inson V. State, 87 Tex. 565, 29 S. W. 650, Eberstadt v. State, 20 Tex.
Civ. 165, 49 S. W. 655, and Rowe v. Bateman, 153 Ind. 635, 54 N.
E. 1066, all reaffirming rule; Trigg v. State, 49 Tex. 644, holding
that appeal lies from action of district judge removing county at-
torney from office; McWhorter v. Northcut, ^4 Tex. Civ. 23, 57 S.
W. 904, appeal not entertained where term of office expired; Mc-
Whorter V. Northcutt, 94 Tex. 87, 58 S. W. 721, dismissal on account
of term of office expired is dismissal of action, not of appeal; Watkins
V. Huff, 94 Tex. 632, 64 S. W. 682, writ of error dismissed where
subject matter ceased to exist.
Appeal Diflmlsaed Where Ziower Oonrt would have no power to carry
out judgment if affirmed and remanded.
Approved in McMeans v. Finley, 88 Tex. 522, 32 S. W. 525, apply-
ing rule where repeal of statute deprives lower court of power to
carry out judgment; Davis v. San Antonio etc. Ry., 92 Tex. 648,
51 S. W. 326, applying rule where subject matter in litigation has
ceased to exist; Southwestern Tel. etc. Co. v. Galveston Co. (Tex.
Civ.), 59 S. W. 589, appeal will not be entertained merely to de-
termine costs, subject matter having ceased to exist.
47 Tez. 210-217, MOOBE V. MUSE.
Appeal Bond Suspends Enforcement of judgment pending appeal.
Approved in Burns v. Ledbetter, 54 Tex. 380, holding that appeal
bond suspends power to sell under judgment appealed from; Gruner
V. Westin, 66 Tex. 214, 18 S. W. 513, holding that supersedeas bond
suspends right of creditor to enforce judgment pending appeal;
Shrewsbury v. Ellis, 26 Tex. Civ. 407, 64 S. W. 701, county court
can, by motion, compel clerk to enter sheriff's fees in fee-book, in
guardianship.
]!tfandamn8 Lies to Compel ministerial officer to perform duty.
Approved in State v. St. Paul, 113 La. 1073, 37 So. 974, mandamus
does not lie to compel district judge to make order to compel court
, stenographer to deliver testimony given at certain trial, where on
rule to show cause judge refused to so order. See note, 98 Am. St.
Rep. 870.
47 Tex. 217-220, CXXSTABD V. MUSGBOVE.
In Trespass to Try Title, defendant setting up title in himself and
pleading not guilty is confined, in his defense, to title set up.
Approved in St. Louis etc. Ry. v. Whitaker, 68 Tex. 633, 5 S. W.
449, Nobles v. Magnolia Cattle Co., 69 Tex. 436, 9 S. W. 449, Cum-
mins v. Denton, 1 Posey U. C. 184, Brown v. Wilson (Tex. Civ.),
29 S. W. 532, Hayes v. Gallaher, 21 Tex. Civ. 90, 51 S. W. 281, and
Cooke ▼. Avery, 147 U. S. 393, 13 Sup. Ct. Rep. 347, 37 L. 215, all
reaffirming rule; Donovan v. Ladner, 3 Tex. Civ. 206, 22 S. W. 62,
holding that plaintiffs alleging estoppel by partition could not prove
other facts.
Distinguished in Ogden v. Bosse (Tex. Civ.), 23 S. W. 732, hold-
ing, under plea of not guilty without setting up title, defendant in
trespass to try title may prove any title under which he claims.
In Trespass to Try Title, defendant may plead not guilty, and also
title under statute of limitations.
47 Tex. 220-240 NOTES ON TEXAS EEPORTS. 718
*
Approved in Sheirburn v. Hunter, 3 Woods, 287, Fed. Gas. 12,744,
holding that defendant pleading not guilty and also statute of lim-
itations, claiming title in himself, may show invalidity of defend-
ant's title.
Statute of limitations must be specially pleaded in defense.
Cited in 4 Am. St. Bep. 384, note.
47 Tex. 220-221, JEKKS V. JENES.
Notaries of Other States have no general power to administer oaths
and take affidavits.
Approved in Thames v. Chitwood, 24 Tex. Civ. 391, 60 S. W. 346,
holding affidavit before state notary sufficient.
Distinguished in Latimer v. St. Louis etc. By. Co., 40 Tex. Civ.
136, 88 S. W. 444, under present statute, affidavit of inability to pay
costs in lieu of writ of error may be made before notary of another
state.
47 Tex. 222-240, MILAN CO. v. BOBEBTSON.
On Adjournment of Term at which final judgment rendered, jurisdic
tion of court over it, on its merits, is exhausted.
Approved in Blum ▼. Wettermark, 58 Tex. 127, holding that juris-
diction of district court to set aside its own judgment continues
during term; Gratiot v. Missouri etc. By., 116 Mo. 472, 21 S. W.
1100, cited in separate opinion to point that motion for rehearing
of merits made at term subsequent to final judgrment is not allow-
able. See note, 12 Am. Dec. 352.
Judgment Based on Facts which court is warranted in presuming
from record to exist while court ignorant of jurisdictional defect,
such as death or insanity of party, i; ay be corrected, after term at
which rendered, on writ of error coram nobis, by court rendering it.
Approved in McClelland v. Moore, 48 Tex. 361, reaffirming rule;
Jones V. Parker, 67 Tex. 79, 3 S. W. 224, applying rule to case where
infancy of defendant presumed; Cruger v. McCracken, 87 Tex. 588,
30 S. W. 538, holding writ of error coram nobis superseded in mod-
ern practice by motion to vacate; Moore v. Perry, 13 Tex. Civ. 200,
35 S. W. 840, holding coram nobis not proper where error apparent
on face of record; Marble v. Vanhorn, 53 Mo. Ap. 364, holding co- .
ram nobis not allowable where error known to court; Williamson
V. Wright, 1 Posey U. C. 718, citing to point that equity has power
to grant relief against mistake in judgment. See notes, 97 Am. St.
Bep. 372; 49 L. B. A. 161, 173.
Void Judgment has *No Binding Force, either in tribunal in which
rendered or any other in which it may be questioned.
Reaffirmed in Moore v. Perry (Tex. Civ.), 56 S. W. 121.
Judgment for or Against Party who is dead is voidable only, unless
death shown by record.
Approved in Flores v. Maverick (Tex. Civ.), 26 S. W. 318, 319,
and Watt v. Brookover, 35 W. Va. 325, 29 Am. St. Rep. 813, 13 S.
E. 1008, both reaffirming rule; Campbell v. Upson (Tex. Civ.), 81
S. W. 359, where jurisdiction acquired over party, judgment rendered
against him after his death without citing heirs and representatives
not collaterally attackable by latter; Howard v. McKenzie, 54 Tex.
189, holding partition valid although one party dead when confirmed;
Fleming v. Seeligson, 57 Tex. 531, extending rule to insanity, where
party represented by counsel and no suggestion made; Cruger v.
719 NOTES ON TEXAS BEPOETS. 47 Tex. 240-249
McCracken, 87 Tex. 589, 30 S. W. 539, holding death of party at
time of entry of judgment proper ground for vacating it; Best v.
Nix, 6 Tex. Civ. 351, 25 8. W. 131, and King v. Burdett, 28 W. Va.
604, 57 Am. Rep. 690, holding judgment after death not suggested
in record, voidable only. See valuable notes in 52 Am. Dec. 110; 70
Am. Dec. 314; 29 Am. St. Rep. 816.
Distinguished in M. T. Jones Lumber Go. v. Rhoades, 17 Tex. Civ.
669, 673, 41 S. W,. 104, 106, holding that judgment rendered against
defendant who is dead at institution of suit is void.
Application to Correct Judgment comes too late after lapse of
seven years.
Approved in Tevis v. Armstrong, 71 Tex. 65, 9 S. W. 138, holding
proceedings to correct misdescription in decree of partition too late
after twelve years; Harrison v. McMurray, 71 Tex. 127, 8 S. W. 614,
holding that application to set aside judgment should be made within
time allowed for bill of review; Missouri etc. Ry. v. Hayncs, 82 Tex.
455, 18 S. W. 608, holding right to revise judgment for mistake lost
by lapse of thirteen months; Williamson v. Wright, 1 Posey U. C.
719, holding application to correct judgment for mistake limited to
two years after discovery of mistake; Howard v. State, 58 Ark. 232,
24 S. W. 8, holding writ of error coram nobis not proper on behalf
of one convicted of murder after time for new trial has expired; De
Camp V. Bates (Tex. Civ.), 37 S. W. 645, holding court will not reopen
and correct judgment after lapse of six years.
Writ of Error Coram Nobis does not lie to correct matter apparent
of record and assignable as error.
Approved in Asbell v. State (State V. Asbell), 62 Kan. 215, 61
Pac. 692, writ of error coram nobis does not lie because of popular
prejudice at time of trial preventing fair trial, where it was known
at time of trial.
47 Tex. 240-249, BEED V. WEST.
Where Heizs of Owner of Certificate receive benefit of its location,
equity will enforce location contract when locator has not surrendered
hig rights by culpable neglect to enforce them.
Approved in Doss v. Slaughter, 53 Tex. 237, holding that ratifica-
tion of delegated trust to locate land binds owner to locator.
Where Holder of Title Bond has performed his contract, ten years
must elapse before court will refuse him specific performance.
Approved in McKin v. Williams, 48 Tex. 92, holding that specific
performance will not be granted after ten years without some ex-
cuse for the delay; McFaddin v. Williams, 58 Tex. 629, holding that
twenty years after cause of action accrues bars right to specific per-
formance. See note, 58 Am. Dec. 145.
Limitation Does not Begin to Bun against one holding title in trust
until some act indicating intention to hold adversely.
Approved in Wilson v. Simpson, 80 Tex. 287, 16 S. W. 42, and
Neyland v. Ward, 22 Tex. Civ. 372, 54 S. W. 605, both reaffirming
rule; Logan v. Robertson (Tex. Civ.), 83 S. W. 398, applying rule
where location interest held in trust; Campbell v. McFadin, 71 Tex.
32, 9 S. W. 140, holding that suit could not be brought for title until
patent issued; Robertson v. Du Hose, 76 Tex. 10, 13 S. W. 303, holding
that right tq relief depends on lapse of time after cause of action
accrues; Howard v. Stubblefield, 79 Tex. 5, 14 S. W. 1045, holding
that statute begins to run upon issuance of patent; Jackson v. Des-
47 Tex. 250-294 NOTES ON TEXAS KEPOBTS. 720
londe, 1 Posey U. C. 687, holding that possession of land with right
of posaression and of property constitutes title, which lapse of time
cannot destroy; Bunge v. Schleicher (Tex. Civ.), 21 S. W. 424, hold-
ing limitation and stale demand inapplicable when no adverse poff-
Mssion is shown.
Equity will not, except for some equitable reason, hold party guilty
of laches for not seeking enforcement of equitable right during sutr-
pension of statute.
Approved in Merrill v. Boberts, 64 Tex. 444, holding laches not im-
puted to one failing to sue while statute suspended; Cole v. Grigsby
(Tex. Civ.), 35 S. W. 684, holding doctrine of stale demand inapplica-
ble to partietr suing for equitable estate, under disability of infancy
or coverture; Bobinson v. Thompson (Tex. Civ.), 52 S. W. 119, hold-
ing statute does not run against infant during infancy; Lux v. Hag-
gin, 69 Cal. 271, 10 Pac. 679, holding that equity will refuse relief
before statute has run only in case of acquiescence.
In Suits for Specific Performance what is reasonable time must
depend on circumstances of each case.
Approved in American Land etc. Co. v. Pace, 23 Tex. Civ. 236, 56
S. W. 384, applying rule in suit to reform trust deed for mistake in
description of land embraced; League v. Henecke (Tex. Civ.), 27 S.
W. 1050, holding plea of stale demand good where plaintiff claiming
under certificate and patent does not sue in trespass to try title for
over thirty years.
Ancient Date of Contract is no objection to its enforcement, in
law or equity.
Approved in Hill v. Moore, 85 Tex. 340, 19 8. W. 163, and CulwcU
V. Borroum, 13 Tex. Civ. 462, 35 S. W. 944, holding coverture bar to
plea of gtale demand; Bobinson v. Kampmann, 5 Tex. Civ. 610, 24
S. W. 531, holding that infancy will defeat plea of stale demand.
47 Tez. 250-294, STATE V. OABDINAS.
Copy of Copy Authenticated by an Alcalde, who is not legal cus-
todian of original, is not admissible to establish Spanish grant.
Approved in State v. Cuellar, 47 Tex. 302, and Broxson v. Mc-
Dougal, 63 Tex. 198, both reaffirming rule; Willis v. Moore (Tex.
Civ.), 33 S. W. 693, holding inadmissible improperly authenticated
copy of certified copy of will.
Original must be Archive of Office to make copy certified to by
custodian of archive stand in place of original when lost.
Approved in State v. Sals, 47 Tex. 318, holding sworn copy taken
from records of alcalde's office sufficient; McCarty v. Johnson, 20
Tex. Civ. 188, 49 S. W. 110, holding copy not entitled to registration
if not certified by custodian of original; Uhl v. Musquez, 1 Posey U.
C. 656, 657, holding that registry of original must have been author-
ized to render certified copy an instrument in evidence; Lerma v.
Stevenson, 40 Fed. 358, arguendo. See note, 78 Am. Dec. 573.
Distinguished in Von Bosenberg v. Haynes, 85 Tex. 366, 20 S. W.
144, where fact that paper archive was copy of originals is of no
consequence in determining case.
Commissioner Appointed to Take Deposition may, by consent of
parties, reduce answers given in Spanish to English, without being
sworn as interpreter.
Beaffirmed in Munk v. Weldner, 9 Tex. Civ. 496, 29 S. W. 41L
721 NOTES ON TEXAS REPORTS. 47 Tex. 295-318
Oofofirmatlon of Qranta^ by former government, is not obnoxious
to state constitution (Const. 1869, sec. 6, art. 10).
Approved in State v. Sais, 60 Tex. 88, confirming imperfect title
to three leagues of land in Starr county; Baldwin v. Goldfrank, 9
Tex. Civ. 274, 26 S. W. 158, upholding constitutionality of act of Feb-
ruary 8, 1850.
Statute (Paachal's Digest^ 7068) requiring evidences of title to
be filed with petition imports paper title capable of being filed and
does not apply to title by prescription.
Approved in Texas etc. Ry. v. Jarvis, 69 Tex, 542, 7 S. W. 218,
holding title by prescription not sufficient to authorize confirmation.
Miscellaneous. — State v. De Leon, 64 Tex. 558, cited to point that in
suit to confirm title under act of 1870, rights of plaintiff as to regular-
ity of incipient steps must be determined under law of 1826, where
applicant was inhabitant of Reynosa applying under colonization law
of Tamaulipas; State v. Russell, 38 Tex. Civ. 22, 85 S. W. 293, as
recognizing eastern boundary of Tamaulipas at Nueces river; State
v. Cuellar, 47 Tex. 299, another phase of same litigation.
47 Tez. 296-806^ STATE v. CUELLAB.
Instroment Certified by Foreign Officer, giving extracts from
archives of his office with recitals, in his own language, of other
matters contained in said archives, is inadmissible when recitals of
officer are necessary to make extracts from archives intelligible.
Distinguished in Texas etc. Ry. v. Jarvis, 69 Tex. 636, 7 S. W. 214,
under Revised Statutes.
Evidence of Intelligent Mexicans, not lawyers, may be received to
show previous construction given to land laws of Spain and Mexico
by officers who executed them.
Reaffirmed in State v. De Leon, 64 Tex. 558. See note, 25 L. R. A.
454.
Parol Evidence is Admissible to show contents of an original grant
to land which has been lost or destroyed.
Approved in State v. Sais, 47 Tex. 318, holding certified copy of
expediente, authority of alcalde being proven, sufficient evidence of
title; State v. Sais, 60 Tex. 88, confirming imperfect title to three
leagues of land in Starr county.
Translation Made and Filed in Land Office under statute (arts.
5826, 5827) does not constitute archive thereof.
Distinguished in Downing y. Diaz, 80 Tex. 454, 16 S. W. 54, under
existing laws.
47 Tez. 307-318, STATE V. SAia
Hidalgo Treaty Stipulated that civil rights of Mexicans, within
territory ceded to United States, should be protected by it, as they
then existed under laws of Mexico.
Cited in Haynes v. State, 100 Tex. 431, 100 S. W. 914, following
rule; State v. Russell, 38 Tex. Civ. 20, 85 S. W. 293, provision of
protocol supplementary to Mexican treaty of 1848, did not exclude
from protection titles subsequently made complete; Baldwin v. Gold-
frank, 9 Tex. Civ. 274, 26 S. W. 158, and Baldwin v. Goldfrank, 88
Tex. 259, 31 S. W. 1067, holding that act of 1850 did not discriminate
against Mexican claimants, and was valid.
To Obtain Recognition of Title under act of August 15, 1870,
there must have been sufficient title perfected to establish right of
2 Tex. Notes — 16
47 Tex. 320-331 NOTES ON TEXAS BEPORTS. 722
claimant, and land selected identified in such shape that, if not per-
fect title, it would be evidence of right capable of being filed with
petition.
Approved in Garza v. State, 64 Tex. 671, holding that imperfect
title must have had inception under former government, prior to
December 19, 1836, to entitle it to be perfected; Garza v. State, 64
Tex. 671, 672, fact that person might have acquired land under order
prior to December 19, 1836, confers no right unless statute was com-
plied with.
Party Applying to Court for Extra Benefits^ under statute (Pas-
ehal's Digest, art. 7068), must show compliance with statute.
Distinguished in State v. De Leon, 64 Tex. 557, holding proceed-
ings not originally commenced by petition to governor sufficient to
entitle applicant to concession from him.
Laws of Preceding Government are not foreign laws when one
government takes over new territory.
See note, 113 Am. St. Bep. 869.
Miscellaneous. — Cited in State v. Bussell, 3& Tex. Civ. 22, 85 S.
W. 292, as recognizing eastern boundary of Tamaulipas as at the
Nueces river.
47 Tex. S20-322» STATB ▼. BU8TAMENTE.
(Jrant of Title to Land East of Bio Orande by governor of Tamau-
lipas on January 2, 1848, had no effect on right of grantee.
Approved in Haynes v. State, 100 Tex. 431, 100 S. W. 914, fol-
lowing rule.
Miscellaneous. — Cited in State v. Bussell, 38 Tex. Civ. 22, 85 S. W.
292, as recognizing eastern boundary of Tamaulipas as at Nueces
river; State v. Bussell, 38 Tex. Civ. 20, 85 S. W. 293, to point that
steps taken subsequently to 1836 could be considered in considering
whether equities shown to authorize confirmation of Mexican grant
under Mexican treaty and protocol.
47 Tex. 82^325, STATE V. 8ABNE8.
Unless Proceedings had Adyanced far enough to establish right
to land, and survey fixed its location, title could not be confirmed
by suit under article 7068, Paschal's Digest.
Cited in State v. De Leon, 64 Tex. 557, to point that proceedings
not originally commenced by petition to governor entitles applicant
to final concession from him.
47 Tex. 327-331, CALLOWAY ▼. NICHOLS.
Motion to Enter Judgment Nunc Pro Tunc, made six years after
it should have been entered, overruled.
Distinguished in Nettles v. State, 4 Tex. Ap. 343, upholding action
of lower court, at subsequent term, in indornng charge as filed as of
date of trial.
Whether Onardlan's Sale was made in conformity with statute
depends on action of court on report of sale, and not on evidence by
which that action is shown.
Distinguished in Butler v. Stephens, 77 Tex. 603, 14 S. W. 203,
where confirmation of report of sale by court not questioned.
Destruction of Record Evidence, or omission of clerk to enter judg-
ment, is not fatal to title from guardian.
723 NOTES ON TEXAS KEPOBTS. 47 Tex. 332-343
Approved in Weat ▼. Keeton, 17 Tex. Civ. 142, 42 S. W. 1036,
holding probate sale, entered in judge's docket, and not carried into
minutes, valid under article 1845, Revised Statutes.
47 Tex. 332-336, PALMER v. OHANDLES.
Vendee^ ftom Private Individual, of land belonging to state, is not
estopped from acquiring it from state in his own right.
Approved in Swetman v. Sanders, 85 Tex. 299, 20 S. W. 126, hold-
ing that purchaser of land which is part of public domain could
repudiate his contract, and obtain title from state.
Distinguished in Williams v. Finley, 99 Tex. 473, 90 S. W. 1090,
vendee buying from another lands afterward ascertained to be school
lands, and afterward buying from state, cannot be foreclosed for
unpaid notes given on first purchase; Lamb v. James (Tex. Civ.), 27
8. W. 179, holding vendee in possession under warranty deed cannot
defeat vendor's title by subsequently acquired title.
One Busrlng State Land ftom Private Individual may recover pur-
chase money paid, though both parties thought land belonged to
vendor when sold.
Approved in Home v. Gambrell, 1 Tex. Ap. Civ. 599, and Lamb v.
James, 87 Tex. 490, 29 S. W. 649, holding that vendee can recover
purchase money, or have notes canceled.
Pre-emptor Acqulree No Title until he has himself occupied and
improved land for three years.
Approved in De Montel v. Speed, 53 Tex. 343, holding three years'
residence necessary; Swetman v. Sanders, 85 Tex. 298, 20 8. W.
126, holding survey void when no actual possession.
Distinguished in Johnson v. Townsend, 77 Tex. 642, 14 S. W. 2^4,
under act of 1860, amendatory of act of 1854.
Abandonment of Pre-emption Olaim by first settler is sufficient
consideration to support note given to induce it.
Reaffirmed in Bybee v. Wadlington, 2 Posey U. C. 465.
Pre-emptor Selling Land before he has acquired title by three
years' occupation is not entitled to vendor's lien.
Approved in Williams v. Finley, 99 Tex. 475, 90 S. W. 1091, and
Mitchell V. Nix, 1 Posey U. C. 140, both reaffirming rule; Houston v.
Dickson, 66 Tex. 82, 1 S. W. 376, holding that vendor without title
cannot claim lien.
Distinguished in Johnson v. Townsend, 77 Tex. 644, 14 S. W. 234,
where lien given by express contract; Wilson v. Hampton, 2 Posey
U. 0. 428, holding that purchaser of school land may convey it on
credit, and foreclose his lien while title remains in state.
Miscellaneous. — Cited in Burchard v. Record (Tex. Sup.), 17 S. W.
242, while raising question of, but not deciding effect of, foreclosure
on rights of persons not parties to foreclosure proceedings.
47 Tex. 336-343, 26 Am. Bep. 294, HALE v. HALE.
Becrimination is Ko Defense, in divorce suit, where act complained
of is grossly in excess of provocation.
Approved in Beck v. Beck, 63 Tex. 35, reaffirming rule; Bohan v.
Bohan (Tex. Civ.), 56 S. W. 960, holding plaintiff's misconduct to
defeat right to divorce must be reasonably calculated to produce
defendant's misconduct.
EecTimination is Valid Defense, though divorce is not sought on
grounds of adultery.
47 Tex. 343-361 NOTES ON TEXAS REPORTS. 724
Approved in Trigg v. Trigg (Tex. Sup.), 18 S. W. 315, reaffirming
rule; Eikenbury t. Eikenburj, 33 Ind. Ap. 74, 70 N. E. 839, uphold-
ing denial of divorce for desertion where defendant defaulted but
plaintiff on questions asked by judge admitted adultery. See note,
86 Am. St. Rep. 333.
Plaintiff is not Required to be without blemish to obtain divorce
for defendant's greater wrong.
Reaffirmed in Trigg v. Trigg (Tex. Sup.), 18 S. W. 316; Jones ▼.
Jones, 60 Tex. 461.
Where Plaintiff and Defendant Both Wrong, and there is but slight
difference in degree of guilt, divorce will not be granted.
Approved in Alexander y. Alexander, 140 Ind. 559, 38 N. E. 856,
reversing decree in favor of both parties; Day v. Day, 71 Kan. 390,
80 Pac. 976, where plaintiff guilty of extreme cruelty and g^oss
neglect and defendant guilty of adultery, divorce denied to both.
See notes, 86 Am. St. Rep. 336; 84 Am. St. Rep. 138.
47 Tex. 343-357, PIJSA8ANTS V. DUNKIN.
Under Laws in Force in 1840, probate courts had jurisdiction over
estates of decedents not residents of county at time of decease.
Approved in Ferguson v. Templeton (Tex. Civ.), 32 8. W. 150,
Brockenborough v. Melton, 55 Tex. 504, both reaffirming rule; Tem-
pleton V. Ferguson, 89 Tex. 56, 33 S. W. 333, applying rule to pro-
bate court of Harrisburg county; Fitzwilliam v. Campbell, 99 Fed.
37, holding that under act of 1836 probate court had power to sell
land and chattels of such decedent.
Petition for Letters Containing Averment that petitioner verily
believed decedent dead is sufficient to admit proof of death.
Approved in Murchison v. White, 54 Tex. 84, holding that petition
sufficient to admit evidence of death is sufficient.
Bona Fide Purchaser at Probate Sale is protected by decree of
court of competent jurisdiction.
Distinguished in Groesbeck v. Bodman, 73 Tex. 291, 11 S. W. 323,
where sale was not made in course of administration.
Discrepancy in Date of Certificate given in patent and date of cer-
tificate sued on is immaterial where patent made exhibit to petition.
Approved in Halfin v. Winkleman, 83 Tex. 167, 18 8. W. 433, hold-
ing that palpable error in reference, in vendor's lien note, to pages
of record requires no evidence to correct it; Eakin v. Home Ins. Co.,
1 Tex. Ap. Civ. 709, holding that doctrine of variance does not apply
to matter of mere identity; Hill v. Smith, 6 Tex. Civ. 317, 25 8. W.
1080, holding copy of land certificate admissible, though date varied
from that of patent; Minor v. Lumpkin (Tex. Civ.), 29 S. W. 801,
holding deed and petition not inadmissible because of difference in
number of patent in petition and order of sale.
47 Tex. 357-361, MAYMAN v. KBVIEBB.
Under Act of 1870, widow is entitled to allowance instead of home-
stead.
Approved in Mabry v. Ward, 50 Tex. 410, applying similar con-
struction to act of 1848.
Widow's Allowance Takes Precedence over lien of attachment
creditor.
Approved in Heathcock v. Goodrich, 2 Posey U. C. 585, reaffirming
rule; McLane v. Paschal, 47 Tex. 370, holding widow's allowance
725 NOTES ON TEXAS EEPORTS. 47 Tex. 361-373
free from former encumbrance; Abney t. Pope, 52 Tex. 293, holding
that mere mortgage lien could not deprive widow of exemption; Arm-
strong V. Moore, 59 Tex. 648, holding that sale by mortgagee pending
administration of solvent mortgagor's estate did not deprive widow
of homestead right.
47 Tex. 361-365, HIGOINS V. BEOTOB.
Individaal Creditors are not Preferred to partnership creditors in
administration of deceased partner's estate.
Approved in Cox v. Miller, 54 Tex. 27, reaffirming rule; Swearingen
V. Hendley, 1 Posey U. C. 647, applying rule to assignment for bene-
fit of creditors. But see note, 43 Am. St. Rep. 368.
47 Tex. 385-373, McXAKE V. PASCHAL
Deed of Trast» to secure payment of debt, is, in legal effect a
mortgage with power to sell.
Approved in Black well ▼. Barnett, 52 Tex. 333, Goldfrank v.
Toung, 64 Tex. 434, and Thompson v. Marshall, 21 Or. 178, 27 Pac.
960, all reaffirming rule; Hunt v. Springfield Fire etc. Ins. Co., 196
U. S. 50, 25 Sup. Ct. Rep. 179, 49 L. 382, condition in fire policy for
unconditional and sole ownership of property by insured, and for
nonexistence of chattel mortgage, broken by deed of trust to secure
payment of money; Halloran v. Holmes, 18 N. D. 420, 101 N. W. 314,
deed absolute in form but in fact a mortgage does not convey legal
title to grantee; Aggs v. Shackelford Co., 85 Tex. 149, 19 S. W.
1086, holding mortgage property within article 1, section 17, consti-
tution; Alliance Milling Co. v. Eaton, 86 Tex. 409, 25 S. W. 617, 24 L.
R. A. 369, holding trust to pay debt is mortgage, and not assignment
for benefit of creditors.
Power of Tmstee to 8dl is not revoked by death of debtor.
Approved in Linberg v. Pinks, 7 Tex. Civ. 398, 25 S. W. 791, re-
affirming rule; Texas Loan Agency v. Dingee, 33 Tex. Civ. 120, 75 S.
W. 867, holding void sale by trustee in trust deed after grantor's death
and pending administration on his estate; Black v. Rockmore, 50 Tex.
95, and Griffie v. Maxey, 58 Tex. 214, holding trust deed avoided by
death of husband insolvent; Jackson v. Ivory (Tex. Civ.), 30 S. W. 718,
holding mortgages and liens created by contract subject to laws of
administration; Thaxton v. Smith (Tex. Civ.), 38 S. W. 827, holding
beneficiaries, under trustee, after death of grantor, can collect claim
only in course of administration; Harris v. Wilson (Tex. Civ.), 40
S. W. 870, holding void, tmstee'e sale after death of grantor in deed
of trust See notes, 92 Am. St. Rep. 576; 70 L. R. A. 142.
Execution of Trost Deed of Homestead after d-eath of husband
would be SQch forced sale as is inhibited by constitution.
Approved in Gillaspie v. Murray, 27 Tex. Civ. 582, 66 S. W. 253,
power of sale in trust deed may be executed after death of con-
stituent where fonr years have elapsed during which administration
could be taken out on his estate; Abney v. Pope, 52 Tex. 293, setting
aside sale of homestead under trust deed; Armstrong v. Moore, 59
Tex. 648, holding sale of homestead by mortgagee pending admin-
istration of insolvent mortgagor's estate void. See note, 70 L. R.
A. 142.
Distinguished in Rogers v. Watson, 81 Tex. 403, 17 S. W. 30, hold-
ing trust sale valid where no administration had for four years after
death.
47 Tex. 373-393 NOTES ON TEXAS BEPOETS. 726
Allowances to Widow have preference over specific liens, except
for purchase money, created in lifetime of decedent.
Reaffirmed in Hoffman v. Hoffman, 79 Tex. 198, 15 S. W. 472.
Order Setting Aside Homestead out of estate is judgment of court
binding on all parties interested in estate until revoked or set aside.
Approved in Hirshfeld v. Brown (Tex. Civ.), 30 S. W. 964, holding
order of probate court setting aside homestead to wife can only be
vacated on statutory grounds.
Husband and Wife may Curtail Homestead by diverting portion to
other purposes without absolutely parting with title.
Approved in Ayres v. Shackey, 2 Posey, 275, following rule.
Apjdicant for Probate Homestead to family must show they are
entitled to it and that property sought to be set aside is of proper
character for that purpose.
See note, 56 L. B. A. 52.
Miscellaneous. — McLane v. Paschal, 74 Tex. 22, 11 S. W. 837, and
McLane v. Paschal, 8 Tex. Civ. 399, 28 S. W. 712, both latter phases
of same litigation.
47 Tex. 373-376, MEYEBS v. DITTMAB.
Doctrine That Bnling on Former Appeal is ree adjudicate, though
law may have been differently construed in meantime, is not approved
by supreme court of Texas.
Cited in Lewis v. Davidson, 51 Tex. 257, on point that former
adjudication on merits con<^lusive on second appeal. See note, 34 L.
B. A. 329.
Qualified in Clay v. Clay, 2 Posey U. C. 365, holding that rule ap-
plies only where there is substantially same statement of facts on
last appeal; Groesbeck v. Golden (Tex. Sup.), 7 6. W. 365, holding
recent decision contrary to previous decisions is not stare decisis.
47 Tex. 376-381, OABTEB V. BANDOLPH.
Statutes Make Ko Distinction between community and separate
property where it is made homestead.
Approved in Clift v. Kaufman, 60 Tex. 65, holding undivided in-
terest in brick store a homestead; Clift v. Kaufman, 60 Tex. 66, 70,
holding that homestead allowance must be taken alone from estate
of deceased husband or wife; Schwarzhoff v. Necker, 1 Posey U.
C. 329, holding that husband as survivor, may dispose of entire
homestead; Lyttle v. Harris, 2 Posey U. C. 26, holding that wife may
sue alone for recovery of homestead property, husband absent or
refusing to join.
Homestead is No Part of Estate of deceased husband, solvent or
insolvent.
Approved in Hainey v. Chambers, 56 Tex. 20, holding homestead
passes to wife on death of husband insolvent.
47 Tex. 381-393» HIGOIKS V. BINKEB.
Liquor License Law of 1873 is unconstitutional.
Overruled on rehearing, Higgins v. Binker, 47 Tex. 393; Harris ▼•
State, 4 Tex. Ap. 133.
States may Begulate Business within their limits.
See note, 1 L. B. A. 51«
727 NOTES ON TEXAS EEPOBTS. 47 Tex. 393-423
47 Tex. 39S-406, HIGOINS v. BINKES.
That Wliich is Implied in Statute is as mnch part of it as what is
expressed.
Reaffirmed in Chase v. Swayne, 88 Tex. 226, 53 Am. St. Bep. 749,
30 S. W. 1052.
Peddler is Foot-trader, who carries about with him merchandise
for sale where he goes.
Approved in Randolph y. Yellowstone Eit, 83 Ala. 472, 3 So. 707,
and Kennedy v. People, 9 Colo. Ap. 493, 49 Pac. 375, reaffirming
definition; Kansas y. Collins, 34 Kan. 437, see 8 Pac. 867, holding
that single sale from samples will not constitute drummer a peddler.
See notes, 57 Am. Bep. 137; 7 L. B. A. 667.
Oonatitutioiiality of Act of 1873, imposing tax on occupation of
selling spirituous liquors, upheld.
Approved in Harris ▼. State, 4 Tex. Ap. 133, reaffirming rule;
Douthit y. State, 36 Tex. Civ. 397, 82 S. W. 363, upholding statute
imposing tax on sale of liquor though native wines in hands of pro-
ducers or manufacturers is exempt; Thompson v. State, 17 Tex. Ap.
258, upholding similar law taxing sale of '^Police Gazette"; Preston v.
Finlej, 72 Fed. 855, upholding levy of occupation tax on sale of
certain newspapers. See valuable note in 52 Am. Dec. 333.
47 Tez. 40&-421, 26 Am. Bep. 298, TEXAS BANK ft INS. 00. y.
OOHEN.
Stipulation in Policy Against Its Assignment, without consent of
company, is not broken by transfer, by one partner, of his interest,
to his copartners.
Beaffirmed in Sun Fire Office y. Wich, 6 Colo. Ap. 120, 39 Pac.
593. Approved in dissenting opinion, Walton v. Agricultural Ins.
Co., 116 N. Y. 326, 22 N. E. 445, 5 L. B. A. 677, majority holding that
transfer from husband to wife made policy void. And see notes, 49
Am. Bep. 25; 52 Am. Bep. 443; 18 L. B. A. 482.
47 Tez. 421-423, FEBOXJSON v. HALSELL.
Only Mode by WMch County Oourt can devest county of title to
realty is that prescribed by article 1052, Paschal's Digest.
Approved in Llano Co. y. Knowles (Tex. Civ.), 29 S. W. 553, reaf-
firming rule; Nichols v. Stete, 11 Tex. Civ. 333, 32 S. W. 454, build-
ing contract with state cannot be ratified as to an illegal claim for
an excess.
Distinguished in Wooters v. Hall, 61 Tex. 15, holding that grantor
to county could direct its disposition by county officers in some other
mode.
Prescribing of Mode of Exercising Power by Sabordinate agencies
of government is restriction to that mode.
Approved in Penn y. Laredo (Tex. Civ.), 26 S. W. 636, holding,
under statute authorizing city council to contract by ordinance or
resolution, mayor alone has no power to contract; Nichols v. State,
11 Tex. Civ. 331, 32 S. W. 453, holding that commissioners appointed
to let contract for state building cannot go beyond limit set for cost
of building; Indiana etc. Co. v. Sulphur Springs (Tex. Civ.), 63 S.
W. 909, holding city not liable for contract of mayor executed with-
out authority.
Corporation Must Act in Mode provided for it.
Cited in dissenting opinion in Marshall & Bruce Co. v. City of
Nashville, 109 Tenn. 515, 71 S. W. 820, majority holding where city.
\
47 Tex. 423-440 NOTES ON TEXAS REPORTS. 72S
purauant to illegal ordinance advertised for printing bids, inserted
provision that all work must bear union label, award to lowest bidder
was binding on city. See note, 81 Am. Dec. 107.
47 Tex. 423-427, JACKSON v. BUTLER.
Under Act of February 14, 1860, certified copy of judgment duly
recorded remains lien on all defendant's realty in county for four
years.
Reaffirmed in Barron v. Thompson, 54 Tex. 243.
Iden of Judgment Secorded under act of February 14, 1860, is not
lost by transfer of property and death of debtor before four years
after its record.
Approved in Spring v. Eisenach, 51 Tex. 435, holding that title
to purchaser under junior judgment, recording sherififs deed, is not
affected by subsequent bankrupt sale wherein he is not made party;
Hanrick v. Gurley (Tex. Civ.), 48 S. W. 997, holding lien of mort-
gage not lost by transfer of property and death of mortgagor;
^Hanrick v. Gurley, 93 Tex. 472, 54 S. W. 353, holding that probate
court cannot order foreclosure of lien, reserved by decedent, in ab-
sence of proof that purchase notes remained unpaid.
47 Tex. 428^38, QAIiVESTON BRAZOS ETC. BY. ▼. GROSS.
District Court cannot, by Mandamufl, control land commissioner in
issuance of certificates.
Approved in Taylor v. Hall, 71 Tex. 213, 9 S. W. 145, reaffirming
rule; State v. Board of Liquidation, 42 La. Ann. 658, 7 So. 709, hold-
ing executive department of government, as a whole, exempt from
judicial control. See notes, 98 Am. St. Rep. 874; 3 L. R. A. 54.
Distinguished in Thomson v. Baker, 90 Tex. 169, 38 S. W. 23,
holding that supreme court has jurisdiction under article 946, Re-
vised Statutes, to issue mandamus to commissioner of general land
office; Kaufman Co. v. McGaughey, 3 Tex. Civ. 672, 21 S. W. 263,
holding that district court has jurisdiction to issue injunction against
commissioner; Martin v. Ingham, 38 Kan. 650, 17 Pac. 167, holding
mandamus proper to control ministerial duty imposed on governor.
Until Constitution of 1869 Went into Effect^ it was policy of state
to reserve alternate sections in granting lands to railroads.
Approved in Quinlan v. Houston etc. Ry. (Tex. Civ.), 24 S. W,
695, holding valid, land certificates granted to railroad incorporated
by legislature and given benefits of act of 1854, prior to constitution
of 1869; Houston etc. Ry. v. State (Tex. Civ.), 39 S. W. 404, holding
grants previously made to railroads unaffected by section 6, ar-
ticle 10, constitution of 1869.
In Constming Laws, it is to be presumed that legislature intended
to use language in constitutional sense.
Reaffirmed in Mitchell Co. v. City Nat. Bank, 91 Tex. 374, 43 S. W.
885.
Miscellaneous.— Taylor v. Hall, 71 Tex. 221, 9 S. W. 149, holding
that fees are chargeable on patent issued for land eontained in capi-
tol contract.
47 Tex. 4S8--140, CHALK v. DABDEN.
District Court cannot Control state controller in discharge of
duty.
Approved in State v. Board of Liquidation, 42 La. Ann. 658, 7
So. 709, holding executive department of government, as a whole,,
not subject to judicial control. See note^ 3 L. R. A. 54«
729 NOTES ON TEXAS REPOBTS. 47 Tex. 440-445
Distinguished in Martin v. Ingham, 38 Kan. 650, 17 Pac. 167,
holding mandamus proper to control ministerial duty imposed on
governor.
47 Tex. 440-443, UNN v. LE OOMPTE.
Refusal to Grant Motion for new trial made more than two days
after judgment will only be revised whexi clearly wrong.
Approved in White v. State, 10 Tex. Ap. 176, reaffirming rule;
Hume V. John B. Hood etc. Veterans (Tex. Civ.), 69 S. W. 643, court
may rescind order awarding new trial and reinstate judgment; Hum-
phries V. State (Tex. Cr.), 69 S. W. 528, where motion for new trial
overruled during absence of moving party and later he moved to
set aside order and motion entertained and overruled at term at
which judgment entered, appeal immediately thereafter is in time
though more than two days after new trial denied; Union etc. Ins.
Co. v. Lipscomb (Tex. Civ.), 27 S. W. 309, holding not error to re-
fuse motion for new trial filed after prescribed time without suf-
ficient excuse; Barton v. American Nat. Bank, 8 Tex. Civ. 226,
29 S. W. 211, holding that court may grant new trial, even without
motion, justice requiring it; Akard v. Western etc. Ins. Co. (Tex.
Civ.), '34 S. W. 140, holding refusal to grant motion for new trial or
to set aside judgment, filed after time fixed by law, is not revisable
unless clearly wrong; Homes v. Henrietta (Tex. Civ.), 46 S. W. 872,
holding court of civil appeals may grant new trial or vacate judg-
ment at any time during term.
Unrecorded Conveyance is Void as to creditor acquiring lien with-
out notice.
Approved in Gordon v. McCall (Tex. Civ.), 56 S. W. 219, reaffirm-
ing rule; Wright v. Lassiter, 71 Tex. 644, 10 8. W. 297, holding pos-
session under unrecorded title bond not notice; Caldwell v. Bryan,
20 Tex. Civ. 171, 49 S. W. 242, holding unrecorded deed void against
creditor securing attachment lien; Rogers v. Houston (Tex. Civ.),
60 S. W. 448, Turner v. State, 94 Tex. 484, 61 S. W. 924, Turner v.
Cochran (Tex. Civ.), 63 S. W. 153, and Barnett v. Squyres, 93 Tex.
194, 77 Am. St. Bep. 855, 54 S. W. 241, holding burden on claim-
ant under unrecorded deed to show notice to creditor before his lien
attached.
Distinguished in Hale v. Hollon, 14 Tex. Civ. 110, 35 S. W. 850,
holding that recorded conveyance of grantor's expectancy of in-
heritance in lands of one living becomes, on death of latter, notice
to creditors of grantee's title.
Conveyance Void as to Creditor without notice is void as to pur-
fhaser at execution sale who had notice.
Approved in Lewis v. Johnson, 68 Tex. 450, 4 S. W. 645, apply-
ing rule to son purchasing from his father, who was creditor; King
V. Holden (Tex. Sup.), 16 S. W. 899, holding execution purchaser
takes good title where deeds to wife do not show property to be
her separate estate; Le Doux v. Johnson (Tex. Civ.), 23 S. W. 905,
holding creditors unaffected by unrecorded transfer of leasehold
of which they had no notice when levying attachment; L. & H.
Blum Land Co. v. Harbin (Tex. Civ.), 33 S, W. 153, holding execu-
tion purchaser unaffected by unrecorded deed of which creditor had
no notice when levy was made.
47 Tex. 443-445, EDMUNDS ▼. SHEAHAN.
Surety Discharging Judgment in Confederate money is entitled to
eontribution from cosurety.
47 Tex. 445-452 NOTES ON TEXAS REPOBTS. 730
Approved in Lewis v. Alexander, 51 Tex. 590, holding that Con-
federate money contracts are not void for illegality.
Surety DiBcharging Judgment in Confederate money is entitled to
contribution for value of it, with interest^ not for amount of judg-
ment.
Approved in Hanna v. Brennan, 2 Posey U. C. 543, holding surety
entitled to indemnity only to extent of amount expended in paying
debt. See note, 10 Am. St. Rep. 645.
47 Tex. 445-462, ELUOTT ▼. MITCHEUi.
Bond for Title is Snffldent to sustain plea of adverse possession
of three years, except against vendor, though price not paid.
Approved in Downs v. Porter, 54 Tex. 61, Uhl v. Musquez, 1 Poaey
U. C. 660, and Avent v. Arrington, 105 N. C. 391, 10 S. E. 996, aU
reaffirming rule; Tenzler v. Tyrrell, 32 Tex. Civ. 447, 75 S. W. 59,
where consideration paid, bond for title suppo^rts plea of three years'
limitation as against heirs of obligor; McNeeley v. South Penn Oil
Co., 52 W. Va. 633, 44 8. E. 514, 62 L. R. A. 562, possession by pur-
chaser under executory contract of sale made by husband alone, of
land joined jointly with wife, is not adverse to wife; Converse v.
Ringer, 6 Tex. Civ. 57, 24 S. W. 707, holding that possession under
ten years' limitation need be adverse only to true owner; Folwell v.
Clifton (Tex. Civ.), 28 S. W. 569, holding bond for title, regardless
of consideration, vests title in grantee against all except grantor;
Simpson v. Sneclode, 83 Wis. 204, 53 N. W. 500, holding adverse
possession good though original entry under executory contract;
Coyle V. Franklin, 54 Fed. 646, 21 L. R. A. 289, holding possession
of lessee that of lessor, though he repudiates lease, suit being brought
against him and possession recorded. See notes, 14 Am. Dec. 584; 88
Am. St. Rep. 719.
Trespass to Try Title may be maintained on bond for title.
Approved in Neyland v. Ward, 22 Tex. Civ. 371, 54 S. W. 605,
holding that bond for title, acknowledging receipt of purchase price,
will support trespass to try title without other evidence.
Break in Possession of one month incident to change of owners
will not destroy continuity of possession.
Approved in Erhard v. Hearne, 47 Tex. 477, holding exemption
from suit not lost by break in possession subsequent to completed
term of adverse possession; Rushing v. Chandler, 2 Posey U. C.
605, holding that temporary absence of occupant does not stop run-
ning of statute.
Failure of Land Officers to Delineate on Office Maps grant on file
does not affect grant in favor of subsequent location, upon whieh
patent issued.
Approved in Gilbert v. Mansfield, 38 Tex. Civ. 305, 85 S. W. 833,
holding conflict shown between survey under which plaintiff claims
and earlier railroad survey, title to certain sections of which defend-
ants held, and to preclude plaintiff's recovery under Const., art. 14,
sec. 2; Texas etc. R. Co. v. Barber, 31 Tex. Civ. 86, 71 S. W. 394,
where defendant purchased survey of patented land in conflict with
older railroad survey, described in latter as in A county, though it
lay partly in B county, and examination of land office records would
have disclosed conflict, defendant not bona fide purchaser without
notice.
Miscellaneous. — Watrous v. McKie, 54 Tex. 67, 68, 69, subsequent
phase of same litigation.
731 NOTES ON TEXAS EEPOETS. 47 Tex. 452-462
47 Tez. 452-454, LOOEHABT ▼. LYTLE.
To Maintain Action for Oontrlbntion, for expenditures incurred by
one partner for use of partnership, there must be settlement of ac-
«ountSy special agreement, or separation of transaction from firm
accounts.
Approved in Worley v. Smith, 26 Tex. Civ. 272, 63 S. W. 904, and
Merriwether v. Hardeman, 51 Tex. 441, both reaffirming rule.
Distinguished in McKay v. Overton, 65 Tex. 83, 85, where indebted-
ness was independent of partnership accounts and there was no
partnership settlement. .
47 Tex. 454-462, 26 Am. Bep. 304, TATLOB v. HABBISON.
Duly Recorded InstmmentB are constructive notice to creditors
and purchasers of such facts as they would have learned from record,
if examined.
Beaffirmed in Saunders v. Hartwell, 61 Tex. 688. See notes, 28
Am. Bep. 74; 53 Am. Bep. 749.
Becord Notice Does not Extend to Facts not in it, as, by examina-
tion, prudent man might have been put on inquiry to ascertain.
Approved in White v. McGregor, 92 Tex, 560, 60 S. W. 566, and
Laughlii^ V. Tips, 8 Tex. Civ. 653, 28 S. W. 552, reaffirming rule.
Deed not Properly Acknowledged, or improperly recorded, though
duly executed, will not operate as notice of its existence.
Approved in Dean v. Gibson, 34 Tex. Civ. 509, 79 S. W. 364, fol-
lowing rule; Stiles v. Japhet, 84 Tex. 98, 19 S. W. 453, applying
rule to unacknowledged deed by wife to husband; Weber v. Moss,
3 Tex. Civ. 18, 21 S. W. 611, holding that, where deed recorded is
partially destroyed so as not to show acknowledgment, it is not no-
tice; Spence v. Brown (Tex." Civ.), 22 S. W. 984, holding record of
abstract of judgment gives no lien as against subsequent purchasers
unless properly certified; Dean v. Gibson (Tex. Civ.), 58 S. W. 51,
holding deed sufficiently executed, but improperly recorded not no-
tice; Fordtran v. Perry (Tex. Civ.), 60 S. W. 1002, unacknowledged
deed confers no notice of its contents; Stinnett v. House, 1 Po&ey
U. C. 488, holding that record must show certificate authorizing
record; Uhl v. Musquez, 1 Posey U. C. 657, holding that transcript
from registry of deeds must show authoritative registry of original;
Uhl v. Musquez, 1 Posey U. C. 658, holding that if registry irregu-
lar, certified copy is of no validity; Tood v. Union Dime etc. Inst.,
118 N. Y. 346, 23 N. £. 301, holding conveyance lacking seal in-
operative as notice. See note, 86 Am. Dec. 670.
Distinguished in Hart v. Patterson, 17 Tex. Civ. 593, 43 8. W.
546, holding omission from record in case stated insufficient to ren-
der record inoperative as notice; Hudson v. Bandolph, 66 Fed. 219,
221, holding that error of recording officer in copying description
in deed does not nullify its effect as notice.
Becord Only Oives Notice of Existence of such instrument as that
exhibited by it.
Beaffirmed in Johnson v. Hess, 126 Ind. 315, 25 N. E. 450, 9 L. B.
A. 471, and Neyland v. Texas etc. Lumber Co., 26 Tex. Civ. 421, 64
S. W. 698. See notes, 45 Am. Bep. 189; 12 L. B. A. 389.
Pnrchaser, for Value, from Heirs or Bepresentati-ves of vendor,
without notice of previous sale, is bona fide purchaser.
Approved in Zimpelman v. Bobb, 53 Tex. 283, Holmes v. Johns,
56 Tex, 53, Thorn v. Frazer, 60 Tex. 263, and Lewis v. Cole, 60 Tex.
343, applying rule to purchaser from heir; Wallace v. Crow (Tex.
47 Tex. 462-468 NOTES ON TEXAS REPORTS. 732
Sup.) I 1 S. W. 373, holding purchasere from grantee in lost quit-
claim deed take good title as against claimants under heirs of gran-
tor; Slayton v. Singleton, 72 Tex. 212, 9 S. W. 877, holding pur-
chaser without notice from heir not aflfected by unrecorded foreign
will; Morris v. Meek, 57 Tex. 387, applying rule to purchase from
surviving wife; Lumpkin v. Adams, 74 Tex. 103, 104, 11 S. W. 1073,
and Saunders v. Isbell, 5 Tex. Civ. 515, 24 8. W. 308, applying rule
to purchaser from administrator; Cantrell v. Dyer, 6 Tex. Civ. 554,
25 S. W. 1098, applying rule to purchaser at assignee's sale; Whit-
sett V. Miller, 1 Posey U. C. 213, holding that bona fide purchaser
must show deed and payment of consideration, without notice. See
note; 21 L. R. A. 33.
Qrantee in Quitclaim is not bona fide purchaser of any greater
interest than vendor had when deed made.
Reaffirmed in Richardson v. Levi, 67 Tex. 364, 3 S. W. 446.
Qnitclaim Deed OonTeyii Only Such Interest as grantor had when
deed made.
Approved in Shepard v. Hunsacker, 1 Posey U. C. 583, holding
that quitclaim passes no title against prior unrecorded conveyance.
See valuable notes in 1 Am. St. Rep. 247, 12 Am. St. Rep. 237, and
3 Am. St. Rep. 319.
Qnitclaim Deed is Release of Glaim to land conveying merely chance
fer title and not the land.
Approved in Culnell v. Burroum, 13 Tex. Civ. 461, 35 S. W. 943,
reaffirming definition; Cantrell v. Dyer, 6 Tex. Civ. 555, 25 S. W.
1098, holding deed from assignee not quitclaim when it conveys land
itself for full consideration; Laughlin v. Tips, 8 Tex. Civ. 652, 28 S.
W. 552, holding deed conveying land itself not quitclaim; Raymond
V. Flavel, 27 Or. 244, 40 Pac. 195, holding bargain and sale deed with
covenant of warranty against all persons claiming under grantor
not quitclaim.
Whether Deed is Quitclaim is not determined by mere omission of
covenant of warranty, but all facts attending its execution may
be looked to, to ascertain whether it intends to convey land or only
chance for title.
Approved in Moore v. Swift, 29 Tex. Civ. 53, 67 S. W. 1066, hold-
ing where grantee paid full value, deed by which grantors bargain,
sell and quitclaim all right, title and interest, in land, is not quit-
claim deed; Lindsay v. Freeman, 83 Tex. 265, 18 S. W. 730, and
Cutler V. James, 64 Wis. 177, 54 Am. Rep. 605, 24 N. W, 875, Ward
V. League (Tex. Civ.), 24 S. W. 988, holding adequacy of considera-
tion may be looked into in determining whether deed is absolute or
quitclaim; Threadgill v. Bickerstaff, 87 Tex. 522, 29 S. W. 758, hold-
ing use of word "quitclaim" immaterial if deed conveys land itself;
White V. Frank, 91 Tex. 71, 40 S. W. 964, holding conveyance com-
plete without covenant of warranty; Tate v. Kramer, 1 Tex. Civ.
434, 23 S. W. 257, holding conveyance with special warranty a quit-
claim; Renick v. Dawson, 55 Tex. 109, and Fletcher v. Ellison, 1
Posey U. C. 670, holding that purchaser at bankrupt sale acquires
only quitclaim deed; Wynne v. Ward, 41 Tex. Civ. 235, 91 S. W. 238,
arguendo. See note, 29 L. R. A. 37.
47 Tex. 462-468, 26 Am. Sep. 311, TATLOB ▼. SNOW.
Sale After Death Under Levy before death is invalid.
Approved in Pierce v. Logan, 2 Posey U. C. 355, holding that sale
nnder execution, after death of debtor, cannot defeat right of admin-
733 NOTES ON TEXAS REPORTS. 47 Tex. 469-493
i&trator to possession of property; Fleming v. Ball, 25 Tex. Civ. 211,
60 S. W. 985, holding sale after death of sole defendant, on whose
estate there was no administration, void.
Sal« of Property Under Execution, after death of defendant, is
only relatively void, and cannot be set aside where there has not
been, or cannot be, administration.
Approved in Thompson v. Jones (Tex. Sup.), 12 S. W. 79, 80, re-
affirming rale; Laughter v. Seela, 59 Tex. 179, holding that purchaser
at sale under execution issued more than one year after judgment
entered may be protected; Cain v. Woodward, 74 Tex. 551, 12 S. W.
319, holding sale under execution issued after death of debtor void-
able only. See notes, 61 L. R. A. 367, 373, 384, 393; 49 L. R. A.
154, 155.
Death of Defendant before rendition of judgment does not make
it subject to collateral attack.
Approved in Campbell v. Upson (Tex. Civ.), 81 S. W. 359, follow-
ing rale; Howard v. Landsberg's Committee, 108 Ya. 166, 60 S. E.
771, validity of county court's order for committee for lunatic not
collaterally attackable in ejectment for want of notice to lunatic;
Fleming v. Seeligson, 57 Tex. 531, holding that insanity or death
after jurisdiction acquired does not make judgment void; Harrison
v. McMurray, 71 Tex. 127, 8 S. W. 614, holding judgment voidable
only where defendant died before verdict; Flores v. Maverick (Tex.
Civ.), 26 S. W. 318, holding court having jurisdiction, judgment
rendered after defendant's death is voidable only; Ledbetter v.
Higbee, 13 Tex. Civ. 271, 35 S. W. 802, holding judgment not void,
because defendant dead at time of rendition; Williamson v. Wright,
1 Posey U. C. 718, holding that where court has jurisdiction, no error
in its exercise can make judgment void; Pugh v. McCue, 86 Va. 477,
10 S. E. 716, admitting in evidence chancery deed decreed to one
dead; Powell v. Heckerman, 6 Tex. Civ. 307, 25 S. W. 167, arguendo.
See notes, 52 Am. Dec. 110; 70 Am. Dec. 314; 91 Am. Dec. 348; 8
Am. St. Rep. 289; 29 Am. St. Rep. 816; 49 L. R. A. 155, 174.
Distinguished in Hooper v. Caruthers, 78 Tex. 436, 438, 15 S. W.
100, where judgment shows on its face that defendant was dead at
time of its rendition. Explained in M. T. Jones Lumber Co. v.
Rhoades, 17 Tex. Civ. 673, 41 S. W. 106, 107, upholding judgment in
action against one dead at commencement of suit void.
47 Tez. 469-481, EBHABD ▼. HEABNE.
Title by Adverse Possession, under three years' statute of limita-
tion once matured, is not lost by temporary break in possession.
Reaffirmed in Spofford v. Bennett, 55 Tex. 301. See note, 80 Am.
Dec. 652.
47 Tez. 481-493, ALEXANDER ▼. LEWIS.
Partners may Provide, by agreement, for continuance of firm after
death of one of its members.
Reaffirmed in Lewis v. Alexander, 51 Tex. 586. Approved in Alt-
gelt V. Sullivan (Tex. Civ.), 79 8. W. 337, holding will did not author-
ize executor to continue partnership in which decedent was partner.
See notes, 86 Am. Dec. 600; 69 Am. St. Rep. 414; 79 Am. St. Rep. 713;
5 L. R. A. 410.
Two or Three Partners cannot, by agreement, continue existence
of firm after death of one of them.
47 Tex. 493-523 NOTES ON TEXAS BEPOBTS. 734
Approved in O'Brien v. Gilleland, 79 Tex. 603, 15 S. W. 682, hold-
ing partnership dissolved on death of member; Henslej v. Bagdad
Sash Factory, 1 Tex. Ap. Civ. 393, holding that partner cannot, after
dissolution, bind firm hy his acknowledgment of antecedent debt;
Exchange Bank v. Tracy, 77 Mo. 600, holding that unless expressly-
authorized, surviving partner cannot bind estate of deceased partner
by new contracts. See notes, 86 Am. Dec. 602; 79 Am. St. Bep.
715.
Contract to Import Military Stores, to be used by Confederate
army, was illegal.
Approved in Lewis v. Alexander, 51 Tex. 591, and Pfeuffer v.
Maltby, 54 Tex. 463, both reaffirming rule; Wallia v. Wood (Tex.
Sup.), 7 S. W. 853, holding verified plea denying partnership equiva-
lent to denying authority to execute note sued on as partnership
note; Anheuser-Busch etc. Assn. v. Houck (Tex. Civ.), 27 S. W. 698,
holding mere fact that defendant knew of buyer's unlawful purpose
will not defeat recovery of purchase price.
Miscellaneous. — Lewia v. Alexander, 51 Tex. 582, another phase of
same litigation.
47 Tex. 493-^03, McLANE ▼. BELVIK.
All Ezecntors Appointed by Will must join in its execution.
Beaffirmed in Giddings v. Butler, 47 Tex. 544.
Power Conferred by Deed or Will in two or more executors or trus-
tees cannot, unless otherwise provided, be carried out unless all join
in its execution.
Beaffirmed in Tucker v. Bryan, 1 Tex. Ap. Civ. 660.
Where Claim is Allowed by two independent executors without
consent of third, its approval by probate court gives it no force.
Approved in Howard v. Johnson, 69 Tex. 658, 7 S. W. 523, hold- .
ing approval by probate judge a nullity where claim allowed by in-
dependent executor; Evans v. Taylor, 60. Tex. 425, holding that ap-
proval of claim allowed by widow in charge of community property
gives it no preference; Boy v. Whitaker, 92 Tex. 355, 48 S. W. 896,
holding that claim allowed by independent executor need not be
allowed by probate court. See note, 127 Am. St. Bep. 785.
Filing Original Petition does not stop running of statute on cause
not set out in it but set out only in amended petition.
Approved in Phoenix Lumber Co. v. Houston Water Co. (Tex.
Civ.), 59 S. W. 555, and Phoenix Lumber Co. v. Houston etc. Co.,
94 Tex. 463, 61 S. W. 709, both reaffirming rule; Lynch v. Ortlieb
(Tex. Civ.), 28 S. W. 1020, holding suit for injuries from falling
walls does not stop running of statute against suit for breach of
contract to repair.
Distinguished in Moore v. Boothe, 39 Tex. Civ. 342, 87 S. W. 884,
where erroneous judgment adverse to plaintiff rendered on petition
bad on general demurrer, but point not raised below, it cannot be
urged on appeal as error, and judgment sustained on that ground.
47 Tex. 503-^23, 26 Am. Bep. 315, EBOBN ▼. ZIMPELMAN.
Becelpt for Money to be Paid when called for is due at its date,
and statute begins to run then.
Approved in Bridgens v. West, 35 Tex. Civ. 281, 80 S. W. 419,
mere admission that one has received money lawfully due another
does not establish against him such continuing trust as prevents run-
ning of limitations; Henry v. Boe, 83 Tex. 449, 18 S. W. 80S, hold*
735 NOTES ON TEXAS REPORTS. 47 Tex. 503-523
ing note payable on demand due immediately. See note, 84 Am. Dec.
591.
WlLer« Demand Necessary, before suit, it should be made within
time to bring suit before statute has interposed bar.
Reaffirmed in Meyer v. Andrews, 70 Tex. 330, 7 S. W. 815; Phillips
T. State, 6 Tex. Ap. 383; Smith v. Smith, 91 Mich. 12, 51 N. W. 695.
Beceli^t of Money, to invest in land or return when called for, is
not express trust, but moneyed demand.
Approved in White v. Affleck, 1 Posey U. C. 82, holding money re-
ceived, with interest, measure of damages in breach of contract to
buy land.
Writings cannot be Offered for purpose of comparison unless found
to be genuine, or established by most satisfactory evidence.
Approved in Heacock v. State, 13 Tex. Ap. 134, Steiner v. Jester
(Tex. Civ.), 23 S. W. 719, Mardes v. Meyers, 8 Tex. Civ. 549, 28 S.
W. 695, and Cook v. l^rst Nat. Bank (Tex. Civ.), 33 S. W. 999, all
reaffirming rule; Heard v. State, 9 Tex. Ap. 18, holding it competent
to prove handwriting by comparison in criminal case, standard of
comparison being established by undoubted proof; Walker v. State,
14 Tex. Ap. 628, holding standards of comparison in case stated
satisfactorily established; Cannon v. Sweet (Tex. Civ.), 29 S. W.
948, holding bond identified by person who saw it executed as bear-
ing grantor's signature admissible to prove grantor's signature. See
note, 12 L. R. A. 461, 462.
Signature Offered for Comparison cannot be proved to be genuine
by opinion of witness, derived solely from general knowledge of
signer's handwriting, that it is so.
Reaffirmed in Buzard v. McAnulty, 77 Tex. 447, 14 S. W. 141; Jes-
ter V. Steiner, 86 Tex. 420, 23 S. W. 719. See notes, 63 L. B. A. 431;
62 L. R. A. 858.
Photographic Copies of Instruments are secondary evidence, admis-
sible only after proper foundation laid.
Approved in First Nat. Bank v. Wisdom (Ky.), 63 S. W. 465, hold-
ing photograph of signature admissible after proof of photographer
of their accuracy; Houston v. Blythe, 60 Tex. 512, holding photo-
graphic copy smaller than original not proper basis for evidence by
comparison of handwriting; Grooms v. State, 40 Tex. Cr. 329, 50 8.
W. 372, holding photographic copies inadmissible; Cunningham v.
Fair Haven etc. R. R., 72 Conn. 250, .'3 Atl. 1049, holding photo-
graph inadmissible to show locus in quo; White Sewing etc. Co. v.
Gordon, 124 Ind. 498, 19 Am. St. Rep. Ill, 24 N. £. 1054, holding
microscopic examination of original signature, by jury, proper. See
valuable notes in 38 Am. Rep. 474; 49 Am. Rep. 191; 14 Am. St. Rep.
87; 19 Am. St. Rep. 112; 24 Am. St. Rep. 756; 25 Am. St. Rep. 420;
44 Am. St. Rep. 381; 56 Am. St. Rep. 496; 35 L. R. A. 804, 811.
Distinguished in Kansas etc. R. R. v. Smith, 90 Ala. 28, 24 Am.
St. Rep. 755, 8 So. 45, holding photograph of wrecked train, taken
two hours after accident, verified by photographer, admissible in
personal injury suit; Howard v. Illinois etc. Bank, 189 HI. 577, 59
N. E. 1109, holding enlarged photograph of deed admissible to aid
discovery of forgery when original deed is in evidence.
Where It Is Uncertain whether improper evidence resulted to ap-
pellant's prejudice, cause will be reversed.
47 Tex. 523-558 NOTES ON TEXAS REPORTS. 736
Reaffirmed in Griffis v. Payne, 92 Tex. 297, 47 S. W. 974; Mutual
Life Ins. Co. v. Baker, 10 Tex. Civ. 523, 31 S. W. 1075; Jackson v.
Deslonde, 1 Posey U. C. 691.
Approved in Word v. Marrs, 36 Tex. Civ. 638, 83 8. W. 18, admis-
sion of evidence in support of defeilse not pleaded is error.
Under Articles 35 and 1442, Pasclial's Digest, affidavit which muat
accompany plea non est factum of administrator may be made by
heir when administrator unwilling to make it.
Reaffirmed in Solomon v. Huey, 1 Posey U. C. 266.
It is Question of Fact whether photographic copy is exact copy of
original.
See note, 35 L. R. A. 803.
47 Tex. 523-529, HARRIS v. BEED.
Where Evidence Oonfllcts, but each side is well sustained on main
points in controversy, verdict will not be disturbed.
Reaffirmed in Smith v. Pierce (Tex. Civ.), 62 S. W. 1074.
47 Tex. 529-535, DE LA VEGA ▼. BUTLER.
OontinuOTis Possession is not Interrupted by lapse of reasonable
time between occupancy of outgoing and incoming tenants.
Approved in Stettnisehe v. Lamb, 18 Neb. 627, 26 N. W. 377, re-
affirming rule; Gary v. Woodham, 103 Ala. 425, 15 So. 841, holding
short period of vacancy incident to change of possession not abandon-
ment; Downing v. Mayes, 153 111. 336, 46 Am. St. Rep. 899, 38 N. £.
622, holding failure to secure tenant for two years not abandonment;
Ballard v. Hansen, 33 Neb. 868, 51 N. W. 297, holding mere intrusion
of trespasser not an interruption. See note, 13 Am. Dec. 186.
Limited in Richards v. Haskins, 72 Neb. 200, 100 N. W. 153, one
holding adverse possession of land which he has inclosed does not
abandon possession by failure to have it occupied for reasonable time
where no one made claim or took possession during such uonoccu-
pancy.
Interval of Seven Days Between Execution and record of deed will
not break continuity of possession of grantor and grantee required
to make term of five years.
Approved in Jacks v. Dillon, 6 Tex. Civ. 195, 25 S. W. 646, holding
reasonable time allowable between record and registry of deed.
Surviving Second Wife may resist partition of community home-
stead by heirs of husband.
See notes, 4 L. R. A. (n. s.) 798; 56 L. R. A. 79.
47 Tex. 5S&-547, GIDDINaS v. BUTLEB.
Trust Executed by One of Two Executors with consent or subse-
quent ratification of coexecutor will bind estate in equity.
Approved in Brown v. McConnell, 56 Tex. 231, 232, holding that
consent of executory adviser need not appear in deed by executrix
authorized to convey when advised; Terrell v. McCown, 91 Tex.
245, 43 S. W. 7, holding deed by executor's agent good if subse-
quently ratified by him.
47 Tex. 548-558, 26 Am. Bep. 321, QIDDIKaS v. CITY OF SAN AN-
TONIO.
Act of 1850, Section 12, to Incorporate S. A. and M. Oulf Ry., is
unconstitutional, because it embraces distinct object not expressed in
title.
737 NOTES ON TEXAS BEPORTS. 47 Tex. 558-572
Approved in Peck r. San Antonio, 51 Tex. 492, 493, reaffirming
rule; Stone y. Brown, 54 Tex. 342, holding act unconstitutional when
object not expressed in title; Adams v. San Angelo Water Works,
S6 Tex. 487, 25 S. W. 606, holding act of 1893, to regulate condemna-
tion of property in cities, void for same reason; Morrill t. Smith Co.,
89 Tex. 553, 36 S. W. 61, holding that act expressing object to in-
corporate railway company cannot confer power on other companies
to consolidate with it. See notes, 73 Am. Dec. 218; 1 Am. St. Bep.
581.
Section 24, Article 5, Oonstltution of 1845, that act shall embrace
but one subject to be expressed in ita title, is mandatory.
Beaffirmed in Bloom v. Xenia, 32 Ohio St. 464.
Approved in Ex parte Anderson, 46 Tex. Cr. 378, 81 S. W. 975,
holding void city charter authorized by legislature, providing for ap-
pointment of city commissioners by governor.
Whole Law will be Construed Constitutional where part infringing
section 24, article 5, constitution of 1845, can be considered as sub-
sidiary to main object expressed in title.
Approved in State v. Parker, 61 Tex. 267, Fahey v. State, 27 Tex.
Ap. 159, 11 Am. St. Bep. 184, 11 S. W. 109, Nichols v. State, 32 Tex.
Cr. 404, 23 S. W. 682, Smith v. Grayson County, 18 Tex. Civ, 159,
44 8. W. 924, Connor v. Green Pond etc. B. B., 23 S. C. 436, and
San Antonio v. Mehaffy, 96 U. S. 315, 24 L. 817, all reaffirming rule;
Ex parte Hernan, 45 Tex, Cr. 346, 77 S. W. 226, upholding General
Laws, page 68, known as anti-poolroom act, though term "bookmak-
ing" used in body of act not used in title; City of Oak Cliff v. State
(Tex. Civ.), 77 S. W. 27, upholding Sp. Laws, 28th Leg., p. 391,
amending Dallas charter by changing boundaries; Day Land etc.
Co. V. State, 68 Tex. 542, 4 S. W. 872, applying rule to act of 1879,
relating to public land in Greer county; Ham v. State, 4 Tex. Ap.
669, upholding act of 1876, to provide for detection of forgers of
land titles; Ex parte Mabry, 5 Tex. Ap. 98, upholding act of 1876,
taxing dogs; Albrecht v. State, 8 Tex. Ap. 220, 221, 34 Am. Bep.
739, upholding act of 1879, known as "Bell-punch Law"; German Ins.
Co. V. Luckett, 12 Tex. Civ. 142, 34 S. W. 174, upholding act of. 1891
against stipulations for less than two years' limitations in contracts;
Abington t. Cabeen, 106 HI. 208, applying rule to act to incorporate
Dixon and Quincy railroad.
Distinguished in Thomburgh v. Tyler, 16 Tex. Civ. 444, 43 S. W.
1056, holding that authority to issue railroad aid bonds may be
conferred on city without reference thereto in title of charter.
47 Tex. 558-n572, BEYMAN v. BIiACK.
Where There is No Express Constitational Restriction, courts can-
not hold local laws void for want of authority to enact them.
Beaffirmed in Cox v. State, 8 Tex. Ap. 287. Approved in McGuire
T. Chicago etc. B. Co., 131 Iowa, 350, 108 N. W. 905, upholding code,
section 2071, as amended, relating to liability of railroads for in-
juries to employees caused by negligence of fellow-servants. See
note, 21 L. B. A. 789.
Fact That Stock Law of March 23, 1874, was suspended in its opera-
tion to large number of counties did not make it unconstitutional.
Approved in Walker v. Bowman, l^Tex. Ap. Cir. 353, reaffirming
rule; Ham v. State, 4 Tex. Ap. 669, upholding act of July 28, 1876,
for conviction of forgers of land titles, on similar grounds; Clark
2 Tex. Notesr— 47
47 Tex. 578-641 NOTES ON TEXAS REPOBTS. 73^
V. Finl«y, 93 Tex. 178, 54 S. W. 345, upholding act of 1897, reducing
compensation of certain officers; Roberson v. State, 42 Tex. Cr. 598,
63 S. W. 885, upholding stock law of 1897.
Possession of Cattle is not Prima Facie evidence of ownership, but
ownership must be proved by marks and brands.
See note, 11 L. B. A. (n. s.) 89.
47 Tex. 578-683, JOHNS V. SOHUIaTZ.
It will be Presumed That Acts of Officers of former government are-
within and not in excess of their authority.
Approved in Uhl v. Musquez, 1 Posey U. C. 656, and Lerma v.
Stevenson, 40 Fed. 358, both reaffirming rule; Clark v. Hills, 67 Tex.
144, 2 S. W. 357, upholding De Leon tract grant; Wright v. Nelson
(Tex. Civ.), 46 S. W. 262, holding grant of land by governor of
Spain valid.
If Lines of Survey are Indicated by natural or artificial objects,
they are guide for locating land, which will control calls for mere
course, even when scientific instruments have been used in fixing
supposed course lines.
Approved in Clark v. Hills, 67 Tex. 151, 2 S. W. 361, applying rule
in construing De Leon grant; Woods v. Robinson, 58 Tex. 661, hold-
ing that call for comer ascertained by marked lines intersecting at
such corner prevails over call for distance; Marshall v. Crawford, 2.
Posey U. C. 479, holding that calls fixed by well-known marks must
control.
47 Tez. 583-695, MOBBI8 ▼. STATE.
Officer Having Collected Taxes will not be heard to controvert
validity of tax law under which he acted, or dispute right of state
to money collected.
Approved in Swan v. State, 48 Tex. 132, Moore v. State, 53 Neb.
849, 74 N. W. 324, and State v. Scanlon, 2 Ind. Ap. 327, 28 N. £.
429, all reaffirming rule; Webb v. Gonzales, 69 Tex. 457, 6 S. W.
783, extending rule to sureties on collector's bond; Blaco v. State,
58 Neb. 562, 78 N. W. 1057, extending rule to sureties; Paxton v.
State, 59 Neb. 472, 81 N. W. 386, holding sureties on official bond
estopped to deny validity of bond; Jefferson School Township v.
School Town, 5 Ind. Ap. 589, 32 N. E. 808, applying rule to town-
ship receiving illegal tax; Bombeck v. Bombeck, 18 Mo. Ap. 35, ap-
plying rule to guardian wrongfully obtaining control of ward's
money.
Distinguished in State t. Moore, 56 Neb. 85, 76 N. W. 476, holding
sureties not bound for embezzlement of fees unlawfully collected
by state auditor.
In Suit on Oollector's Bond for tax it devolves on him to show if
whole or any part of tax was not collected.
Reaffirmed in Houston Co. v. Dwyer, 59 Tex. 116.
Miscellaneous.— Cited in Smith v. Conner, 98 Tex. 435, 84 S. W.
816.
47 Tex. 597-641, BUI.ES FOB THE OOTJBTS OF TEXAS.
Bule 16 cited in Texas etc. Ry. v. Goldberg, 68 Tex. 687, 5 S. W.
825. Rule 17 cited in Tinsley v. Penniman, 83 Tex. 55, 18 S. W. 719,
International etc. Ry. v. Hinzie, 82 Tex. 627, 18 S. W. 682, and Cen-
tral etc. B. R. V. Morris, 68 Tex. 59, 3 S. W. 461. Rule 18 cited in
Murphy v. Service, 2 Tex. Ap. Civ. 656, and Weatherford etc. Ey^
[39 NOTES ON TEXAS REPORTS. 47 Tex. 597-641
V, Granger, 85 Tex. 578, 22 S. W. 960. Rule 19 cited in Pool v. San-
ford, 52 Tex. 635. Rule 23 cited in T. & P. Ry. v. Burnes, 2 Posey
U. C. 240, Van Valkenburg v. Ruby, 68 Tex. 142, 3 S. W. 748; East
Line etc. R. R. v. Wilder (Tex. Sup.), 2 S. W. 81, holding court will
eonsider only errors of law apparent on record where assignment of
errors found in record was stricken out. Rule 24 cited in Jolly
V, Pryor, 12 Tex. Civ. 150, 33 S. W. 889. Rules 24, 25, and 26,
cited in Hardin v. Abbey, 67 Tex. 586, Texas etc. Ry. v. Kirk, 62
Tex. 233, and Clarendon Land etc. Co. v. McClelland, 86 Tex. 190,
23 S. W. 1102, 22 L. R. A. 105, Jenkins v. American etc. S. M. Co.
(Tex. Sup.), 2 S. W. 726, holding insufficient assignment of error that
"court erred in overruling defendant's motion for new trial." Rulf^
25 cited in O'Neal v. Wills Point Bank, 64 Tex. 647. Rules 25 and
26 cited in Harvey v. Ogilvie, 66 Tex. 186, 18 S. W. 148. Rule 26^
cited in H. & T. C. Ry. v. Pinto, 60 Tex. 517. Rule 27 cited in
Hardin v. Abbey, 57 Tex. 587. Rule 29 cited in H. & T. C. Ry. v.
Barron, 1 Tex. Ap. Civ. 598. Rules 29 to 36 cited in Vaughn v. G..
C. & S. F. By., 3 Tex. Ap. Civ. 279. Rule 31 cited in Alstin v. Cun-
diff, 52 Tex. 460; Ney v. Rothe, 61 Tex. 376. Rule 33 cited in Gulf
etc. Ry. V. Poindexter, 70 Tex. 104, 7 S. W. 323. Rule 36 cited in
Ramey v. Allison, 64 Tex. 704. Rule 37 cited in San Antonio etc.
Ry. V. Holden, 93 Tex. 214, 54 S. W. 752. Rule 50 cited in Kohn
V. Washer, 69 Tex. 70, 5 Am. St. Rep. 3;, 6 S. W. 553. Rules 53
and 54 cited in International etc. R. R. v. Smith (Tex. Sup.), 1 S.
W. 567, holding refusal to give requested charge can be considered
aa ground for reversal only, upon bill of exceptions prepared as pro-
vided by statute. Rules 55 and 69 cited in T. & P. R. R. v. Evans,
2 Posey U. C. 321. Rule 56 cited in Cooper v. State, 7 Tex. Ap.
198. Rules 87, 89 and 94 cited in Locker v. Miller, 59 Tex. 500;
Perrin v. Mallory Commission Co., 8 Ariz. 407, 76 Pac. 477, parties
may amend within time by setting up new caoae of action or de-
fense.
NOTES
ON THE
TEXAS EEPOETS.
OASES IN 48 TEXAS.
48 Taoc 1-12, WOKLET ▼. STATE.
Bectton 8 of ArUde 6 of tii« OoiiBtltation of lk68 did not devest
counties of title to school lands already granted.
Approved in Milam Co. v. Bateman, 54 Tex. 164, 165, following
rale.
48 To. 18-21, B0BIN80N v. 80HBODT.
Plea In Abatement is not waived by filing demurrer at same
time.
Approved in Piemont etc. Ins. Co. v. Fitzgerald, 1 Tex. Ap. Civ.
786, following rule in damage suit for wrongful forfeiture of insur-
ance policy; York v. Texas, 137 IT. S. 20, 11 Sup. Ct. Bep. 10, 34 L.
605, plea to jurisdiction is not general appearance.
Judgments are an Entirety as to all parties against whom en-
tered.
Approved in Brown v. Mitchell, 1 Posey U, C. 379, holding error
as to one defendant is ground for reversing entire judgment.
ShorifTs Liability for Failure to Make Iievy may be limited by
showing that only less sum could have been realized by levy.
See note, 95 Am. St. Bep. 99.
48 Tte. 28-38, WOOLFOLK ▼. BICKETT8.
There can be but One Homestead at any particular time.
Followed in Scottish- American etc. Co. v. Scripture (Tex. Civ.),
40 8. W. 214, reaffirming rule.
Wbere Family Removes from One Place, and takes permanent
abode elsewhere, presumption in favor of purchaser of former home-
stead is that it was abandoned.
Approved in Beece v. Benfro, 68 Tex. 194, 4 S. W. 546, following
rule; Thomas v. Williams, 50 Tex. 274, holding removal from home-
stead to village to educate children not abandonment; Slavin v.
Wheeler, 61 Tex. 659, holding removal from homestead without in-
tent to defraud wife is valid abandonment. See note, 60 Am. Dec.
614.
Wbere Object of Bemoval from Homestead is equivocal, contempo-
raneous declarations of spouses when explanatory are entitled to great
weight if in conformity with subsequent conduct.
(741)
48 Tex. 38-82 NOTES ON TEXAS KEPOBTS. 742
Approved in Sanburn v. Deal, 3 Tex. Civ. 390, 22 S. W. 194, apply-
ing principle to abandonment of homestead by widow.
As Against Purchaser in Good Faith mere declarations of wife
coupled with inconsistent action do not outweigh presumption of
abandonment arising from removal.
Approved in Cox v. Harvey, 1 Posey TJ. C. 274, holding proof of
husband's intention to abandon homestead obviates necessity of proof
of intention by wife to abandon; Gibbs v. Mayes, 2 Posey TJ. C. 221,
holding acquisition of new homestead by husband does not preclude
wife from asserting right to first.
48 Tex. 38-46, JOHNSON Y. BIiOUNT.
Agreement of Oonnael That Statement of Facts be filed as part
of record does not supersede necessity of approval by presiding
judge.
Approved in Galveston etc. By. Co. v. Keen (Tex. Civ.), 73 S. W.
1075, Galveston etc. By. Co. v. Perkins (Tex. Civ.), 73 8. W. 1067,
Taylor v. Campbell, 59 Tex. 317, Caswell v. Greer, 4 Tex. Civ. 660,
23 S. W. 331, and Vaughan v. Bailey, 11 Tex. Civ. 34, 31 S. W. 531,
all following rule; Gray v. Frontroy, 40 Tex. Civ. 303, 89 S. W. 1090,
where judge declined to sign statement presented to him and author-
ized counsel to sign his name to such as agreed to by opposing coun-
sel, there was not sufiicient approval; Watkins v. Hale, 37 Tex. Civ.
245, 84 S. W. 387, mere signing of statement of facts by judge with-
out indicating whether or not he approves it is not approval by judge;
Wade V. Buford, 1 Tex. Ap. Civ. 779, holding statement of facts
must be filed in term time; Gulf etc. By. v. Calvert (Tex. Civ.), 31
S. W. 679, holding statement of facts not approved by judge cannot
be considered; Guerrero v. State, 41 Tex. Cr. 163, 53 8. W. 119, hold-
ing statement of facts signed by judge without other indication of
approval sufficient.
Where Note Payable in 'dollars" is given on sale of slave, it is com-
petent to prove that Confederate currency intended.
See note, 9 L. B. A. (n. s.) 968.
Where Defendant Pleads That Note is payable in Confederate cur-
rency, with certain amount at maturity of note, charge that jury^ re-
turn verdict for value at maturity is sufficient.
Approved in Taylor v. Bland, 60 Tex. 31, holding note payable in
Confederate money at date of contract.
In Absence of Statement of Facts presumption is that verdict sus-
tained by evidence.
Approved in Texas etc. By. v. McAllister, 59 Tex. 362, following
rule; Harmon v. CaUahan (Tex. Civ.), 35 8. W. 707, reversing judg-
ment when petition insufficient though not excepted to.
Reversible Error is one that is not waived, and is prejudicial to com-
plaining party.
Approved in Day v. Stone, 59 Tex. 613, and McKee v. Price, 3 Tex.
Ap. Civ. 405, both following rule; Stevens v. Gainesville Nat. Bank, 62
Tex. 507, holding abstract error not ground for reversaL
48 Tex. 46-82, YANCY v. BATTE.
In Absence of Equitable Defense heirs of wife are entitled to half
of community property, undisposed of prior to her death.
Approved in Johnson v. Harrison, 48 Tex. 261, following rule; Zim-
pelman v. Bobb, 53 Tex. 282^ holding husband's purchaser had record
743 NOTES ON TEXAS BEPOETS. 48 Tex. 83-88
notice of wife's deed to eomxnunity property; Bell v. Schwarz, 56
Tex. 358, holding sale of homestead to support children insufficient
to support title; Caruth y. Grigsby, 57 Tex. 265, holding probate par-
tition of husband's estate does not conclude rights of wife's heir
ignored therein to community property; Porter v. Ghronister, 58 Tex.
55, holding bankrupt sale of husband's interest in community property
doee not affect wife's heirs; Holland v. Seward, 1 Tex. Ap. Civ. 530,
holding legal title to his share of community property vests in his
heirs; Wenar v. Stenzel, 48 Tex. 491, arguendo. See notes, 62 Am.
Dee. 487; 65 Am. Dec. 140.
Distinguished in Griffin v. West Ford, 60 Tex. 505, holding failure
of heirs to protest against waste does not forfeit rights to property
illegally sold by father; Edwards v. Brown, 68 Tex. 335, 5 S. W.
88, holding where record title is in husband's name purchaser of com-
munity property gets good title against wife; Patty v. Middleton,
82 Tex. 592, 17 S. W. 912, wife's heirs have no claim when holding
property conveyed to husband, and no beneficial interest of wife ap-
pears; dissenting opinion in Yancy v. Batte, 48 Tex. 62, majority fol-
lowing rule.
Overruled in Cole v. Grigsby (Tex. Civ.), 35 S. W. 684, holding in-
terest of wife in community land patented to husband is equitable.
Statote Giving Ck>mpensatlon for Improvements (Paschal's Digest,
5300) has no application where plaintiff does not recover entire tract.
Approved in Johnson v. Bryan, 62 Tex. 627, holding on partition
in trespass to try title each party entitled to his improvements;
Garcia v. Hlg, 14 Tex. Civ. 487, 37 S, W. 472, holding value of im-
provements in trespass to try title known on partition. See note, 62
Am. Dec. 485.
BespoDflibility of Heir for Debt on covenant of ancestor is meas-
ured by amount received and not by amount of ancestor's estate
vested in him.
Approved in Webster v. Willis, 56 Tex. 472, 475, holding in suit
against heirs for assets of estate received by them, judgment is in
personam; Byrd v. Ellis (Tex. Civ.), 35 S. W. 1072, holding petition in
suit by creditor of deceased against heirs need not allege amount
received by heirs; Blinn v. McDonald, 92 Tex. 610, 46 S. W. 790,
holding creditor's petition to recover assets of heirs should show
specific property received by each; Carter v. Williams, 2 Tex. Ap.
Civ. 447, holding it is necessary to show heirs received the property;
Graham v. Miller, 26 Tex. Civ. 7, 62 S. W. 114, holding heir giving
quitclaim deed to purchaser of surviving spouse not estopped from
suit on community bond.
When Legal Title to Commonlty is in survivor, and it is sold, bur-
den of proof is on heirs to equitable title to show that vendee bought
with notice of rights of heirs, per Moore, J., dissenting.
Approved in Brown v. Elmendorf (Tex. Civ.), 25 8. W. 147, argu-
endo.
MisceUaneous. — Cited in Spicer v. Henderson (Tex. Civ.), 43 S. W.
28, citing statement of facts.
48 Tez. 8&-88, HUBLEY ▼. BABNABD.
Petition is not Essential to confer jurisdiction for order of sale of
land for payment of debts under probate act of 1848.
Approved in Lyne v. Sanford, 82 Tex. 64, 27 Am. St. Bep. 857, 19
8. W. 849, and Perry v. Blakey, 5 Tex. Civ. 335, 23 S. W. 806, both
48 Tex. 89-93 NOTES ON TEXAS REPORTa 744
following rule; Lyne v. Sanford, 82 Tex. 63, 64, 27 Am. St. Rep. 856,
857, 19 S. W. 849, holding order of sale without notice not attackable
collaterally; Chapman v. Brite, 4 Tex. Civ. 511, 23 S. W. 516, holding
appointment of administrator de bonis not collaterally assailable
where record does not show illegality; Texarkana Clothing Co. t.
Bisco (Tex. Civ.), 40 S. W. 560, holding formal transcript of order
unnecessary to authorize officer to make sale under order of probate
court; Knowlton v. Dolan, 151 Ind. 86, 51 N. E. 100, valid order to
convey partnership property on dissolution of firm not collaterally
attackable; Ryan v. Fergusson, 3 Wash. 368, 28 Pac. 914, holding
presumption is as to regularity of proceedings of probate court in
selling community property. See note, 67 Am. Dec. 698.
Waiver of Citation aod Acceptance of Service by administrator in
proceedings for sale of land does not deprive court of jurisdiction to
order sale.
Approved in Cassels v. Gibson (Tex. Civ.), 27 S. W. 726, holding
that probate sale wae made for cash, when statute requires it to be
made for credit, does not invalidate sale; Lyne v. Sanford, 82 Tex.
64, 27 Am. St. Rep. 857, 19 S. W. 849, arguendo.
Probate Sale of land is Valid, though made to satisfy mortgage
debt not due.
Approved in Grant v. Hill (Tex. Civ.), 29 S. W. 250, 30 S. W. 955,
holding fraud in probate proceedings for sale of land renders sale
voidable only.
Vagnenees of Description in order of probate sale is cured by ref-
erence to inventory and mortgage referred to in order.
Approved in Kerlicks v. Keystone Land etc. Co. (Tex. Civ.), 21
S. W. 624, holding evidence of surveys and proceedings during ad-
ministration admissible to identify land covered by deed from ad-
ministratrix; Crawford v. McDonald, 88 Tex. 634, 33 S. W. 329, hold-
ing description in order confirming executor's sale for payment of
mortgage aided by mortgage; Hermann v. Likens, 90 Tex. 452, 39 S.
W. 283, holding indefinite description in deed aided by other evidence
of description; Edwards v. Gill, 5 Tex. Civ. 206, 23 S. W. 743, applying
principle to administrator's sale of headright certificate; Perry v.
Blakey, 5 Tex. Civ. 336, 23 S. W. 807, holding order of confirmation or-
dered by report of sale.
Distinguished in Collins v. Ball, 82 Tex. 266, 27 Am. St. Rep. 882,
17 S. W. 616, holding parol evidence inadmissible where there is .total
misdescription of land in order of sale.
No Presumption That Administrator did not swear to report of
sale arises from failure to indorse affidavit to^ report; statute requiring
administrator to swear to report is merely directory.
Approved in Harris v. Shaffer (Tex. Civ.), 21 S. W. 113, holding all
uncontroverted facts essential to support judgment presumed.
Affidavit for Introduction of Copies of mortgage sufficient if it
states that originals cannot be produced.
Approved in Foot v. Silliman, 77 Tex. 271, 13 S. W. 1033, follow-
ing rule.
48 Tex. 89-93, McEIN v. WILIJAMS.
Though Suit to Enforce Agreement for conveyance of land under
contract of location be treated as action for specific performance,
plaintiffs relief is dependent on lapse of time after accrual of action
and not on date of contract.
745 NOTES ON TEXAS BEPORTS. 48 Tex. 9^-107
Approved in Bobertson v. DuBose, 76 Tex. 10, 13 S. W. 303, and
Bunge Y. Schleicher (Tex. Civ.), 21 S. W. 424, both following rule.
Where Ten Years Elapee since plaintiff should have sued to enforce
agreement to convey land, relief is not granted without excuse for
delay.
Approved in Lewis v. Cole, 60 Tex. 344, applying principle to suit
on bond for conveyance of land; Montgomery v. Noyes, 73 Tex. 210,
11 S. W. 139, applying principle to suit of trespass to try title;
Browning v. Pumphrey, 81 Tex. 168, 16 S. W. 872, applying principle
to attempt to declare resulting trust against innocent purchaser; Cole
V. Noble, 63 Tex. 434, holding in constructive trusts limitation runs
from time cestui que trust could have brought suit; Campbell v.
McFadin, 71 Tex. 33, 9 S. W. 140, holding possession of defendant as
tenant in common sufficient excuse for delay; Howard v. Stubblefield,
79 Tex, 5, 14 S. W. 1045, holding liens precluded where ancestor per-
mitted grantee of interest in land to retain possession for eight years;
League v. Henecke (Tex. Civ.), 27 S. W. 1050, holding when certifi-
cate issued to plaintiff in 1849, and patent to others in 1860, stale
demand available against trespass to try title brought in 1891; Han-
cock V. Walsh, 3 Woods, 365, Fed. Cas. 6012, holding lapse of time
not available to trustee as defense against liability on trust.
48 Tex. 94-100, ANDREWS ▼. PABKEB.
Ten Years' PosBesaion Under Color of Title is sufficient color of
title to maintain suit of trespass to try title without proof of superior
title.
Approved in Boemer v. Meyer (Tex. Sup.), 17 S. W. 597, reaffirming
rule; Thurber v. Connors, 57 Tex. 97, holding one having estate for
years may bring trespass to try title; McDannell v. Cherry, 64 Tex.
179, holding facts sufficient to maintain forcible entry sufficient in
trespass to try title; Juneman v. Franklin, 67 Tex. 414, 3 S. W. 564,
arguendo.
48 Tex. 101-102, BOWEN ▼. DAVIS.
Verdict by Lees Than Twelve Jurors is valid in ease decided prior
to August 1, 1876.
See note, 43 L. B. A. 80.
48 Tex. 10&-107, HARDEMAN ▼. MOBGAN.
Bemittitur of Damages does not discharge motion for new trial
made on ground of excessive damages.
Approved in International etc. B. B. v. Wilkes, 68 Tex. 621, 2 Am.
St. Bep. 519, 5 S. W. 493, holding new trial not granted for volun-
tary remittitur where damages not excessive; Hoskins v. Huling, 2
Tex. Ap. Civ. 143, holding only where damages are matter of law
does remittitur cure excessive verdict. See note, 68 Am. St. Rep.
267.
Under Constitation of 1876, district court has no jurisdiction over
causes thereby placed within exclusive jurisdiction of justice's court.
Approved in Texas etc. Ry. v. Jarvis, 80 Tex. 464, 15 S. W. 1091,
applying principle to jurisdiction of district court over land claims
against state under act of January, 1862; Bowser v. Williams, 6 Tex.
Civ. 201, 25 S. W. 454, holding article 5, section 27, of the constitu-
tion of 1876 includes probate matters.
Bight to Beconvention in Attachment Suit is limited by jurisdiction
of court in which plaintiff's suit is legally pending.
48 Tex. 107-133 NOTES ON TEXAS EEPOETS. 74«
Approved in Phelps etc. Windmill Co. v. Parker (Tex. Civ.), 30
S. W. 366, holding court acquires jurisdiction by plea in reconvention
of sufficient amount, though plaintiff's demand below jurisdictional
amount.
Defendant In Attaclunent cannot, After Adoption of constitution of
1876, confer jurisdiction on district court by reconvening, where con-
stitution gives justice's court exclusive jurisdiction of suit.
Approved in Texas Land Co, v. Turman, 53 Tex. 624, following rule;
Heidenheimer v. Marx, 1 Tex. Ap. Civ. 68, holding want of jurisdic-
tion apparent on record fatal whether pleaded or not.
48 Tex. 107-120, BXJBK8 ▼. WATSON.
Subsequent Purcliaser in Poeseasion of Land against which vendor's
lien sought to be enforced when sued, joined with maker of note se-
cured by lien, has same defenses as maker.
Approved in Arledge v. Hail, 54 Tex. 402, following rule; Sparks
v. Taylor, 99 Tex. 422, 90 8. W. 488, 6 L. R. A. (n. s.) 381, applying
rule where purchasers for agent of owner deposited draft for pur-
chase money to be delivered to seller on making deed, and owner had
sold to another, but procured latter to accept amount and make deed
to first purchaser; Biggs v. Hanrick, 59 Tex. 571, 572, holding, where
deed does not show reservation of vendor's lien, subsequent purchaser
can treat contract as executed; Johnston v. Lasker Real Estate Co.,
2 Tex. Civ. 498, 21 S. W. 962, holding recital in mortgage that it is
subject to prior liens does not deprive junior encumbrancer of de-
fense of usury. See note, 4 Am. St. Rep. 705.
Under 0-eneral Exceptions all allegations of petition are proper
which are embraced in reasonable construction of averments made,
aided by exhibits.
Approved in Texas etc. Ry. v. Ross, 62 Tex. 448, applying principle
to petition for work and labor, aided by bill of particulars; Ward v.
Wilson, 17 Tex. Civ. 31, 43 8. W. 835, applying principle to suit on
notes, aided by exhibit of supplemental agreement; Lober v. Western
Union Tel. Co., 70 Tex. 694, 8 8. W. 603, holding averments of death
and burial sufficient under general exception; Gulf etc. Ry. v. State,
72 Tex. 409, 13 Am. St. Rep. 817, 10 8. W. 82, 1 L^ R. A. 849, holding
petition to restrain illegal traffic agreement sufficient on general de-
murrer.
An Exhibit is Used to Aid and Elucidate the general allegations
of pleading, but not to supply omission of necessary allegations.
Approved in Malin v. McCutcheon, 33 Tex. Civ. 390, 76 8. W. 588,
applying rule in action for recovery of specified amount deposited
with defendant; Milliken v. Callihan Co., 69 Tex. 209, 6 8. W. 684,
holding petition on contractor's bond omitting name aided by bond
exhibited; Miles v. Mays, 4 Tex. Ap. Civ. 170, 16 8. W. 541, applying
principle in suit for attorney's fees; Williams v. Harrison, 27 Tex.
Civ. 180, 65 8. W. 885, holding omission to declare on stipulation in
note not cured by attaching note to petition as exhibit.
Distinguished in Randall v. Rosenthal (Tex. Civ.), 31 8. W. 823,
holding damage sufficiently alleged when seizure of personal property
alleged, and list thereof attached to and made part of petition.
48 Tex. 120-133, SWAN ▼. STATE.
A Sheriff Acting for State in collection of taxes cannot, in suit
brought for failure to pay over taxes, question validity of act under
which he collected taxes.
T47 NOTES ON TEXAS REPORTS. 48 Tex. 133-140
Approved in Webb Co. v. Gonzales, 69 Tex. 457, 6 S. W. 783, hold-
ing not necessary to show validity of tax levy- to hold sureties;
Blanco v. State, 58 Neb. 562, 78 N. W. 1057, and Paxton v. State, 59
Neb. 472, 81 N. W. 386, holding recital of appointment in bond
estops sureties from denying validity of act under which appoint-
ment made.
Distinguished in State v. Moore, 56 Neb. 85, 76 N. W. 475, holding
sureties not liable for moneys embezzled, unless officer authorized to
collect.
Official Bond Binding Snreties to pay all moneys collected into
state treasury, and also containing provision to perform all duties
generally, is enforceable for failure to pay moneys under later stat-
ute.
Approved in dissenting opinion in Moore v. State, 53 Neb. 849, 74
N. W. 324, majority holding auditor of public accounts not charge-
able with safekeeping of public moneys under Criminal Code, section
124.
Levy of School Tax is Sufficiently EBtablished by proof of receipt
of tax-roll by deputy, and payment of taxes collected to sherifif.
Approved in Houston Co. v. Dwyer, 59 Tex. 116, following rule.
48 Tex. 133-138, BOBEBTS ▼. JOHNSON.
Judgment in Suit on Notes given in payment for land, where charge
to jury includes issue on foreclosure of vendor's lien, is conclusive in
subsequent suit to enforce vendor's lien.
Approved in Bond v. Carter (Tex. Civ.), 73 S. W. 46, in suit by
landlord for advances to tenant, where no seizure made under dis-
tress warrant issued, and judgment was personal, it was res adjudi-
cata on question of lien; Ball v. Hill, 48 Tex. 640, holding when lien
not barred it is not waived by taking judgment on note.
Where Entire Record Shows Issue properly submitted to jury, it is
presumed to have been adjudicated, and judgment thereon is final.
Approved in Darragh v. Kaufman, 2 Posey U. C. 107, following
rule; Jeter v. Gouhenhour, 37 Tex. Civ. 645, 84 S. W. 1091, in suit
to recover office and fees collected by defendant while holding it,
where verdict for plaintiff as to office silent as to fees, and evidence
did not show amount thereof, judgment is final and appealable; Han-
del V. Elliott, 60 Tex. 147, where charge states issues as to note and
lien, and verdict silent as to latter, it is equivalent to finding against
lien; Freeman v. McAninch, 87 Tex. 138, 47 Am. St. Rep. 85, 27 S.
W. 99, holding oral evidence inadmissible to impeach prior judgment;
Backley v. Fowlkes, 89 Tex. 616, 36 S. W. 78, holding fact that no
evidence introduced on certain issue raised does not affect conclu-
siveness of judgment; McGrady v. Monks, 1 Tex. Civ. 613, 20 S. W.
960, holding parol evidence inadmissible to contradict record pleaded
as res adjudicata; Hersberger v. Lindsey, 1 Tex. Ap. Civ. 667, holding,
where no issue submitted, judgment not res adjudicata. See note,
73 Am. Dec. 218.
Distinguished in Rackley v. Fowlkes (Tex. Civ.), 36 S. W. 75, hold-
ing judgment not res adjudicata as to issue not raised.
48 Tez. 138-140, LYNN ▼. LE GIEBSE.
Judgment Creditor may Sue to have conveyance declared fraudu-
lent, or he may execute on land fraudulently conveyed, and, after
purchasing at sale, may sue to set aside fraudulent sale, and recover
land.
48 Tex. 141-146 NOTES ON TEXAS REPORTS. 748
Approved in Rutherford v. Carr, 99 Tex. 104, 87 S. W. 816, action
to recover land bj execution purchaser against one holding under
fraudulent conveyance by defendant in execution is not barred by
plaintiff's failure to sue within four years to set aside conveyance;
Cassaday v. Anderson, 53 Tex. 536, holding general creditor does not
get lien on property fraudulently conveyed; Farrar v. Bates, 55 Tex.
199, holding under open possession under claim of title good faith
may be controverted in contest over answer of garnishee; Gaines v.
Nat. Exchange Bank, 64 Tex. 20, holding judgment creditor may en-
force right against fraudulent vendor without previous execution;
Looney v. Simpson, 87 Tex. 112, 26 S. W. 1065, holding judgment
claimant of land necessary party to suit to foreclose vendor's lien;
Hull V. Naumberg, 1 Tex. Civ. 135, 20 S. W. 1126, though judgment
has become lien, creditor may enforce lien in equity against land
fraudulently claimed as homestead; Loan & Deposit Co. v. Campbell,
27 Tex. Civ. 53, 65 8. W. 66, holding where debtor sues property
after judgment, creditor may purchase at execution sale, and sue to
set sale aside as fraudulent. See note, 73 Am. Dec. 287.
Wbere Oeneral Verdict In Suit to Set Aside Fraudulent Conveyance
shows fraudulent intent on part of debtor, and notice by vendee, it
is sufficient to cancel debtor's conveyance.
Approved in Donnebaum v. Tinsley, 54 Tex. 365, holding convey-
ance by husband to wife, reserving right to himself if she separated,
void as to creditors; Grace v. Hanks, 57 Tex. 17, holding failure to
controvert evidence of want of consideration in deed absolute, and
insolvency is sufficient to establish trust adverse to deed; Bartels v.
Gibson, 17 Fed. 301, holding in suit by bankrupt's creditor to set
aside conveyance fraudulent grantee cannot set up defense of in-
adequacy of consideration in assignee's sale. See note, 70 Am. Dee.
385.
48 Tex. 141-146, WILLIAMS ▼. POUNS.
An Appeal from a Final Judgment^ dissolving an injunction, sus-
pends the decree.
Approved in Gulf etc. Ry. v. Fort Worth etc. Ry., 68 Tex. 105, 2
S. W. 201 (on rehearing), Gulf etc. Ry. v. Fort Worth etc. Ry., 68
T6X. 106, 3 S. W. 565, and McMichael v. Eckman, 26 Fla. 46,*^7 So.
366, all following rule; Lewis v. Leahey, 14 Mo. Ap.. 566, holding
costs accruing between granting of injunction and its dissolution
taxable against sureties on bond.
Distinguished in Moore v. Moore, 59 Tex. 58, holding appeal at
last moment allowed by law does not operate as stay; Fort Worth
etc. Ry. V. Rosedale etc. Ry., 68 Tex. 168, 7 S. W. 383, holding appeal
does not continue in force injunction granted till hearing of case.
In Absence of Fraud married woman cannot impeach certificate of
officer taking her privy acknowledgment to trust deed given for good
consideration.
Approved in Davis v. Kennedy, 58 Tex. 520, Webb v. Burney,
70 Tex. 325, 7 S. W. 843, McKellar v. Peck, 2 Posey U. C. 194, Miller
V. Wybrants, 2 Posey U. C. 410, and Pickens v. Knisely, 29 W. Va.
10, 6 Am. St. Rep. 630, 11 S. E. 935, all following rule; Kocourek
V. Marak, 54 Tex. 205, 38 Am. Rep. 623, holding threat to abandon
wife is duress sufficient to avoid deed; Miller v. Yturria. 69 Tex.
552, 7 S. W. 207, holding evidence that acknowledging officer told
wife she could redeem inadmissible to show deed a mortgage; Coker
749 NOTES ON TEXAS REPORTS. 48 Tex. 147-178
V. Roberts, 71 Tex. 601, 9 S, W. 667, holding innocent purcbaser of
homestead from grantee who held absolute deed as mortgage has
good title against wife; Herring r. White, 6 Tex. Civ. 251, 25 S.
W. 1017, holding evidence that grantor misinformed by interpreter
as to nature of instrument inadmissible; Hickman v. Hoffman, 11
Tex. Civ. 607, 33 S. W. 259, holding possession of land by husband
and wife not notice of fraud against wife where deeds to vendor
silent; McDannell v. Horrell, 1 Posey U. C. 526, holding married
woman cannot avoid deed for husband's fraud in procuring her signa-
ture; Hagan v. Conn (Tex. Civ,), 40 S. W. 20, holding feme sole can-
not avoid mortgage on several lots, because misled by agent as to
lots mortgaged, where mortgagee ignorant of facts. See notes, 55
Am. Dec. 774; 54 Am. St. Rep. 155; 3 L. R. A. (n. s.) 1188.
Distinguished in Union Contracting etc. Co. v. Campbell, 2 Cal.
App. 536, 84 Pac. 306, where street improvement contract contained
time limit, fact that contractor enjoined from performing in suits
by third party no excuse for nonperformance under Civil Code, sec-
tion 1511; Grider v. American etc. Mortgage Co., 99 Ala. 285, 42
Am. St. Rep. 60, 12 So. 777, holding, where wife does not appear, evi-
dence admissible to contradict acknowledgment.
Injunction Suspending Sale of Property under trust deed to se-
cure notes suspends statute of limitations on notes.
Approved in Davis v. Andrews (Tex. Civ.), 27 S. W. 1036, and
Davis V. Andrews, 88 Tex. 530, 30 S. W. 434, following rule; Black-
well v. Barnett, 52 Tex. 334, holding posting notices of trust sale
before debt barred does not suspend statute; Converse v. Davis, 90
Tex. 468, 39 8. W. 279, holding limitations not bar to appointment
of trustee to sell where original trustee wrongfully enjoined.
Distinguished in Bowen v. Kirkland, 17 Tex. Civ. 353, 44 S. W.
192, holding where heir conveys land pending proceedings attacking
administration statute runs against administrator in favor of grantee
in possession; Whittemore v. Sills, 76 Mo. Ap. 256, holding injunction
against building sewer does not excuse failure to complete within con-
tract time.
Ttnst Deed Requiring Sale at Courtlioiuie Door is properly exe-
cuted by sale at courthouse of newly organized county which includes
land sold.
Approved in Stewart v. Brown, 112 Mo. 178, 179, 20 S. W. 452, 453,
holding sale at door of courthouse existing at date of sale sufficient.
Distinguished in Durrell v. Farwell (Tex. Civ.), 27 S. W. 799, hold-
ing under trust deed requiring sale at county seat, and county it
subsequently subdivided, sale at county seat of new county is void.
48 Tex. 147-178, AOKUN ▼. PASCHAL.
In Action of Trespass to Try Title instituted by heirs against ad-
verse possessor, legatees cannot intervene.
Distinguished in Grimes v. Smith, 70 Tex. 220, 8 S. W. 35, holding
residuary legatee establishes sufficient title under trespass to try title
by proving testator's ownership, will, and identity as devisee.
Judgment of Sister State, annulling will duly probated in this
state, does not affect property situate here.
Approved in Slayton v. Singleton, 72 Tex. 212, see 9 S. W. 877,
holding purchase without notice from heir unaffected by probate of
will in other state. See notes, 113 Am. St. Rep. 215; 48 L. R. A.
152.
48 Tex. 178-198 NOTBS ON TEXAS liEl^ORTS. 750
Uxran Dissolution of Oorporatlon to which lands devised, lands re-
vert to heirs, who hold subject to corporate debts and to defenses
existent against corporation at dissolution.
Cited in notes, 99 Am. Dec. 337; 69 L. B. A. 132.
Under Statute of Limitations, a deed for an undivided interest will
not protect grantee beyond the interest it purports to convey.
Approved in Carlyle v: Pruett, 37 Tex. Civ. 389, 84 S. W. 374,
agreement by claimant to tract that tenant should become owner of
part occupied by himself at end of five years and binding claimant
to give deed at end of five years, tenant's possession at end of term
did not inure to benefit of owner; Willis v. Burke, 7 Tex. Civ. 241,
27 8. W. 218, holding deed conveying interest of agent of heirs does
not support adverse possession; Alexander v. Newton, 11 Tex. Civ.
621, 33 S. W. 306, deed whose description does not embrace land, held
insufficient for adverse possession; Cole v. Grigsby (Tex. Civ.), 35 S.
W. 685, holding statute of limitations runs in favor of person in
possession under deed to undivided interest.
Distinguished in Bowlea v. Brice, 66 Tex. 729, 2 S. W. 732, holding
deed granting all title acquired under recorded sheriff's deed suffi-
cient when aided by statute of limitations.
Tax Collector's Certificate that no taxes are charged against lands
in his books is not sufficient evidence of payment of taxes.
Approved in Ochoa v. Miller, 59 Tex. 463, holding payment of taxes
may be shown by direct or circumstantial evidence.
"Where There are Several Defendaate, and judgment is joint, error
as to one affects entire judgment.
Approved in Sandoval v. Bosser, 86 Tex. 687, 26 S. W. 934, applying
principle to judgment attempting to settle rights of guardian and
wards; Brown v. Mitchell, 1 Posey U. C. 379, applying principle to
foreclosure of mortgage.
Bights 88 Forced Heirs under will probated in other state eannot
be litigated in collateral proceeding.
See note, 48 L. B. A. 141.
48 Tex 178-198, BALDBIDGE ▼. SCOTT.
Proi»erty in Wife's Name, and treated by husband as her property,
and in probate proceedings inventoried by him as executor as her
property, held to be separate property of wife.
Approved in Caffey v. Cooksey, 19 Tex. Civ. 147, 47 S. W. 67, hold-
ing property purchased with wife's money and put in her name
is her separate property; Hamilton y. Hubbard, 134 Cal. 606, 65 Pac.
322, where deed to wife recites consideration of one dollar and
exchange of lot which was husband's separate property, wife takes
land as separate property, where deed made with husband's consent.
See notes, 67 Am. Dee. 629; 70 Am. Dec. 400.
Limited in Strnad v. Strnad, 29 Tex. Civ. 127, 68 8. W. 71, where
husband took deed in own name, paying partly with wife's separate
property and giving for balance own note afterward paid with wife's
money, land was wife's separate property only to extent of cash pay-
ment.
It Is Presumed That Entry of Judgment is made at its rendition,
and motion for rehearing must be made fifteen days therefrom.
Approved in Howard v. McKenzie, 54 Tex. 190, holding affidavit
sufficient to excuse delay in moving for rehearing.
751 NOTES ON TEXAS BBPOBTS. 48 Tex. 198-220
48 Tex. 198-202, BLYTHE ▼. DEATON.
The District Ooart luui No Jnrifldiction to Enjoin Sale under judg-
ment of county court in suit transferred fronn justice's court to county
court.
Approved in Texas Land Co. y. Truman, 53 Tex. 624, following
rule.
48 Teac 203-205, WOOD ▼. LOTJGHMILLEB.
Defendant cannot Bring in His Own Vendee as party defendant in
suit to enforce vendor's lien if plaintiff resist.
Approved in Silberberg v. Pearson, 75 Tex. 289, 12 S. W. 850,
holding vendor of grantee not necessary party to suit to set aside
grantee's deed.
48 Tex. 206-209, WALKEB ▼. BUBKS.
In Suit to Beetrain Sale under trust deed to satisfy note, where
petition desi^ribes note and defendant prays judgment on note, it is
unnecessary to plead the note in the answer.
Approved in Ogden v. Bosse, 86 Tex. 344, 24 S. W. 801, holding
original deeds offered by plaintiff to show common source of title not
evidence of defendant's title.
48 Tex. 210-212, GUEST ▼. GUEST.
An Independent Executor appealing from judgment brought to
enjoin him from acting under a will must give an appeal bond.
Distinguished in Buttlar v. Davis, 52 Tex. 82, holding independent
executor appealing for benefit of estate need not give bond.
48 Tex. 212-213» OLABK ▼. BBOWN.
If the Amount of Principal Debt Due be less than two hundred
dollars, however small the deficiency, the action must be transferred
to the justice's court it brought in district court.
Approved in Odle v. Frost, 59 Tex. 688, arguendo.
Distinguished in Wilson v. Sparkman, 17 Pla. 873, 35 Am. Rep.
112, holding, where jurisdictional limit is three hundred dollars court
has no jurisdiction of suit for three hundred dollars and interest.
Payment in Excess of Then Accrued Interest reduces principal sum
on which interest calculated.
Approved in Eastham v. Patty, 29 Tex. Civ. 475, 69 S. W. 226,
reaffirming rule.
48 Tex. 213-216, WAUOBB ▼. McMASTEB.
The District Court has control over the final process issued from it
to execute its judgments.
Approved in Citizens' Nat. Bank v. Interior Land etc. Co., 14 Tex.
Civ. 305, 37 S. W. 449, holding sheriff not necessary party to appli-
cation by defendant to restrain sale.
48 Tex. 216-220, McMIOHAEL ▼. TBUEHABT.
Where Bill of Exceptions shows that certain testimony was ex-
cluded, and statement of facts shows that it was admitted, the
appellate court will not determine which is correct.
Approved in Kesterson v. Bailey, 35 Tex. Civ. 237, 80 S. W. 99,
Wiseman v. Baylor, 69 Tex. 67, 6 S. W. 745, Ramsey v. Hurley, 72
Tex. 200, 12 S. W. 58, McClelland v. Fallon, 74 Tex. 237, 12 S. W.
61, and Sullivan t. San Antonio (Tex. Civ.), 62 Q. W. 557, all
48 Tex. 220-227 NOTES ON TEXAS EEP0BT8. 752
following rule; Krick v. Dow (Tex. Civ.), 84 S. W. 246, assignment
of error to exclusion of certain evidence not considered where state-
ment of facts does not show such evidence was proposed; Galveston
etc. By. V. Parsley, 6 Tex. Civ. 159, 25 S. W. 68, and Denison etc.
Suburban By. v. O'Malley, 18 Tex. Civ. 202, 45 S. W. 226, both hold-
ing where there is conflict between statement and bill of exceptions,
former prevails.
48 Tex. 220-224, BOJ^EB ▼. LINTHICUM.
Final Judgment by Default against one of several defendants can-
not be entered until disposition of the ease as to others.
Approved in Cockrell v. State, 22 Tex. Civ. 568, 55 S. W. 580, fol-
lowing rule; Butta v. Laffera, 1 Tex. Ap. Civ. 471, holding there can
be but one final judgment in a case.
Judgment by Default establishes the facts properly alleged by
plaintiff.
Approved in Linn v. Arambould, 55 Tex. 619, arguendo.
An Interlocutory Default Judgment deprives party of privilege of
answering.
Approved in Alliance Milling Co. v. Eaton (Tex. Civ.), 23 S. W.
457, holding judgment by default may limit its effect and grant
privilege of answering after default.
Wliere, in Suit to Cancel Deeds, title is alleged to be in one defend-
ant, and that such title is held for the benefit of another, the bene-
ficiary is a necessary party.
Approved in Monday v. Vance, 11 Tex. Civ. 375, 32 8. W. 659,
following rule; Ebell v. Bursinger, 70 Tex. 122, 8 S. W. 77, holding
beneficiary is necessary party to suit to recover trust property.
Distinguished in City of Austin v. Cahill, 99 Tex. 191, 88 S. W.
549, where city held legal title to fund raised by taxation in trust
for bond-holders, latter not necessary parties to mandamus in opposi-
tion to trust.
Where Pleadings Seek to Cancel Deeds under which defendant
holds, judgment should conform to pleadings.
Approved in Weaver v. Vandervanter, 84 Tex. 693, 19 S. W. 889,
applying principle.
48 TeK. 225-227, BBINKLEY ▼. HABKINS.
Where One Party Furnishes Money to another for investment in
business, the other to attend to the enterprise, and the profits equally
divided, there is a partnership.
Approved in Stevens v. Gainesville Nat. Bank, 62 Tex. 502, apply-
ing principle; Brown v. Watson, 72 Tex. 221, 10 S. W. 396, holding
person receiving share of profits as salary not liable as partner;
Spencer v. Jones (Tex. Civ.), 47 S. W. 665, holding persons engaging
in business transactions and sharing profits are partners.
Where the Evidence Develops a Case Entirely Different from the
pleadings, judgment should be for defendant.
Approved in Western Union Tel. Co. v. Smith, 88 Tex. 13, 30 S.
W. 550, following rule; Forge v. Houston etc. B. Co., 41 Tex. Civ.
83, 90 S. W. 1119, applying rule in action against railroad for dam-
ages for wrongful death; Letot v. Edens (I^x. Civ.), 49 S. W. 110,
holding, when evidence shows contract different from contract sued
on, plaintiff cannot recov-er.
Wlien a Cause is Tried before a special judge, the record should
show how he became such«
753 NOTES ON TEXAS REPORTS. 48 Tex. 227-241
Approved in McMurry v. State, 9 Tex. Ap. 208, Snow v. State, 11
Tex. Ap. 102, Perry v. State, 14 Tex. Ap. 167, Harris v. State, 14 Tex.
Ap. 677, and Smith, v. State, 24 Tex. Ap. 297, 6 S. W. 41, all applying
principle in criminal case; Hess v. Dean, 66 Tex. 666, 2 S. W. 728,
refusing to dismiss where record does not show exception to author-
ity of special judge; Western Union Tel. Co. v. Neel (Tex. Civ.),
35 S. W. 29, holding objection that special judge was not sworn
cannot be first heard on appeal.
Distinguished in Schwartz v. State, 38 Tex. Cr. 28, 40 S. W. 976,
holding on appeal regularity of appointment of special judge is pre-
sumed.
48 Tex. 227-230, LANE ▼. DOAK.
Where Suit Involving Over Two Hundred and less than five hun-
dred dollars was pending in the district court when constitution of
1876 went into effect, it should have been transferred to the county
court, and whatever judgment was rendered will be reversed.
Approved in Mawthe v. Crozier, 50 Tex. 155, following rule; Con-
ally V. Gambull, 1 Tex. Ap. Civ. 38, holding appeal bond from jus-
tice's court must be filed within ten days after judgment.
The Supreme Court has Judicial Knowledge as to who is judge of
a particular court only when his official acts come before it.
Approved in United States v. Williams, 6 Mont. 389, 12 Pac. 855,
following rule; Henderson v. Lindley, 75 Tex. 188, 12 S. W. 980,
applying principle in partition suit; Chrisman r. Graham, 51 Tex.
457, holding, upon disqualification of county judge, district court may
take jurisdiction and record must show acquisition of jurisdiction;
Heidenheimer v. Marx, 1 Tex. Ap. Civ. 68, holding want of jurisdic-
tion apparent on record i» fatal.
48 Tex. 230-234, EVANS v. WOMACK.
Though Lot Several Hundred Yards from homestead and separated
from it by streets and other lots be used for support of family, it is
not part of homestead.
Approved in Keith v. Hyndman, 57 Tex. 431, following rule; Axer
V. Bassett, 63 Tex. 548, holding separate lot used to pasture animals
part of homestead; Ayers v. Sbackey, 2 Posey TJ. C. 275, holding
devotion of part of homestead to other purpose curtails it; Allen r.
Whitaker (Tex. Sup.), 18 S. W. 162, holding land used for support
of family, but not for purposes of home, not homestead; George v.
Ryon (Tex. Civ.), 61 S. W. 139, holding tract of land outside of town
used as farm not part of city homestead. See note, 70 Am. Dec. 353.
Affidavit for Introduction of Copy of Lost Deed is Sufficient if facts
reasonably show that it was lost.
Approved in Foot v. Silliman, 77 Tex. 271, 13 S. W. 1033, holding
affidavit showing deed lost and diligent search sufficient.
Miscellaneous.-— United States v. Williams, 6 Mont. 389, 12 Pac. 855,
miscited.
48 Tez. 234-241, UUVLEB v. DAHONEY.
Judgment Against Party claiming to be an innocent purchaser void
where verdict does not show he had notice.
Approved in Whitsett v. Miller, 1 Posey U. C. 213, holding party
claiming to be bona fide purchaser must prove lack of notice.
An Innocent Purchaser making only part payment is entitled to
protection to the extent of payment made.
2 Tex. Notes--48
48 Tex. 241-247 NOTES ON TEXAS REPORTS. 754
Approved in Fletcher v. Ellison, 1 Posey U. C. 672, following nile.
See note, 32 Am. St. Rep. 726.
Holder of Notes as Collateral is not a mere mortgagee, who must
prove his claim on death of debtor, but may collect and apply pro-
ceeds to debt.
Approved in Williams v. Lumpkin, 74 Tex. 604, 12 S. W. 489, fol-
lowing rule; Andrews ▼. Union Central etc. Ins. Co., 92 Tex. 588,
50 S. W. 574, applying principle to insurance policy; Pulton v. Na-
tional Bank, 26 Tex. Civ. 119, 62 S. W. 86, holding pledgee of stock
entitled to hold it as against pledgor's administrator.
48 Tex. 241-247, FIiAKAQAN ▼. OaSHMAN.
Vendor has Lien on Land for unpaid purchase money, unless ex-
pressly waived.
Approved in Dean r. Hudson, 1 Posey TJ. C. 369, and Johnson v.
Betterton (Tex. Civ.), 25 S. W. 1051, both following rule; Branden-
burg V. Norwood (Tex. Civ.), 66 S. W. 588, where note is given in
payment for land, vendor has Ii«n though note does not reserve lien;
Meyer v. Smith, 3 Tex. Civ. 41,. 21 S. W. 996, holding payment for
lands in goods does not waive vendor's lien.
The Transfer or Assignment of Debt carries with it the security
for its payment.
Approved in Dean v. Hudson, 1 Posey TJ. C. 370, following rule;
Neese v. Riley, 77 Tex. 351, 14 S. W. 66, holding transfer of note
"without recourse" does not extinguish vendor's lien; Ewell v. Daggs,
108 U. S. 147, 2 Sup. Ct. Rep. 411, 27 L. 684, holding if not^ not
barred mortgage is not; Daggs v. Ewell, 3 Woods, 34&, Fed. Cas. 3537,
holding bona fide mortgage superior to unrecorded deed. See notes,
99 Am. Dee. 575; 86 Am. St. Rep. 179.
Presamptlon of Waiver of Equitable Lien from taking collateral
security from vendor is rebuttable by showing contrary intention.
Approved in Irvin v. Gamer, 50 Tex. 56, following rule; Farm-
ers' etc. Nat. Bank v. Taylor, 91 Tex. 82, 40 S. W. 880, holding me-
chanic does not waive lien by taking notes secured by mortgage on
building; Wilcox v. First Nat. Bank (Tex. Civ.), 52 S. W. 560, hold-
ing whether vendor's lien is waived by taking notes not reciting
vendor's lien is question for jury; Black v. Rockmore, 50 Tex. 98,
arguendo.
Vendor's Lien is Security for the Debt of which the note is merely
evidence, and is security for purchase money so long as unpaid.
Approved in Dean v. Hudson, 1 Posey XJ. C. 371, following rule;
Perry v. Woodson, 61 Tex. 229, holding acceptance of substituted
note does not waive vendor's lien.
Where Third Party Pays Bslance of Purchase Money, and vendee
executes note to him for the money advanced, recognizing the vendor's
lien, tliere is no abandonment of the vendor's lien.
Approved in Thorn v. Dill, 56 Tex. 149, holding equity will en-
force intention to secure notes by vendor's lien; Joiner v. Perkins,
59 Tex. 303, holding vendor's lien not waived by execution of notes
to vendor's creditor; Fievel v. Zuber, 67 Tex. 280, 3 S. W. 275, hold-
ing subrogation does not apply where stranger to title discharges
debt secured by trust deed; Clark v. Burke (Tex. Civ.), 39 S. W.
308, holding valid, vendor's lien reserved in deed from husband to
person paying vendor's lien notes; Henry v. Bounds (Tex. Civ.), 46
S. W. 122, holding person requesting another to take up and hold
755 NOTES ON TEXAS REPOBTS. 48 Tex. 247-269
vendor's lien notes as security cannot attack title though payee's
agent without authority to indorse notes; Featherstone v. Emerson,
14 Utah, 22, 45 Pac. 715, holding priority of vendor's lien not waived
by execution of new agreement, the consideration of which is pay-
ment of purchase money; Scott v. Farmers' etc. Nat. Bank (Tex.
Civ.), 66 8. W. 497, arguendo. See note, 2S L. E. A. 128.
Distinguished in dissenting opinion in Featherstone v. Emerson,
14 Utah, 31, 45 Pac. 718, majority holding priority of vendor's Uen
not waived by execution of new agreement, the consideration of
which is payment of purchase money.
Ubtll Purchase M<mey Paid, vendor has better title, and party
paying balance and receiving mortgage from vendee has vendor's
rights.
Approved in Cushman v. Flanagan, 50 Tex. 395, and Eylar v.
Eylar, 60 Tex. 322, both following rule; Senter v. Lambeth, 59 Tex.
265, holding purchaser with notice of vendor's lien is regarded as
trustee of vendor; Boy v. Clarke, 75 Tex. 33, 12 S. W. 847, holding
vendor's wife cannot assert homestead rights against party paying
purchase money; Johnson v. Portwood, 89 Tex. 248, 34 S. W. 600,
holding intervener agreeing to pay balance is subrogated to vendor's
lien; McAfee v. Wheelis, 1 Posey U. C. 70, arguendo. See note, 70
Abl Dec. 330.
48 Tez. 247-250; MOSPHT ▼. QABBBTT.
In Injimctioii Against Sale of Trust Property, alleging payment
of debt by receipt of note as credit, where evidence shows that note
assigned merely as collateral, there is variance.
Approved in Swearingen v. Buckley, 1 Posey XT. C. 427, arguendo.
48 Tex. 250-267, WBIQHT ▼. LANCABTEB.
An Instrument Containing All the Bequisites of a Deed except the
habendum clause is inoperative as a conveyance.
Approved in Shepard v. Hunsacker, 1 Posey U. C. 585, holding in-
strument a mere quitclaim deed. See note, 26 Am. Bep. 309.
Becording of ObyiouBly Defective Deed is not constructive notice.
Approved in Burck v. Taylor, 152 U. S. 653, 14 Sup. Ct. Bep. 703,
38 L. 585, holding recording of instrument for which statute does not
provide is not notice.
48 Tez. 267-269, JOHKSON ▼. HABBISON.
Heirs of Wife Entitled to Becover against husband's vendee upon
establishment that property was community, unless equitable defense
be made.
Approved in Proetzel v. Schroeder, 83 Tex. 686, 19 S. W. 293, fol-
lowing rule; McBeynolds v. Bowl by, 1 Posey U. C. 456, holding
where husband acquires title under act passed after death of wife it
is separate property.
Distinguished in Griffin y. West Ford, 60 Tex. 505, filing of inven-
tory by husband after sale of community property does not validate
sale; dissenting opinion in Yancy v. Batte, 48 Tex. 62, majority fol-
lowing rule.
The Comnnmity Property is Liable for debts of the community, and
only remainder vests in survivor and heirs of deceased.
Approved in Stone v. Ellis, 69 Tex. 327, 7 S. W. 352, holding sur-
viving wife's contract for location of community land certificate
48 Tex. 269-278 NOTES ON TEXAS BEPOETS. 756
does not bind husband's heirs; Stone v. Crawford, 1 Posey U. C. 611,
holding purchaser of community sold to satisfy debts is subrogated
to vendor's rights.
The Snrrlving Spouse and the Children are each entitled to one-
half of the community property.
Approved in Hair v. Wood, 5^ Tex. 79, Edwards v. Brown, 68
Tex. 332, 4 S. W. 380, Dickerson v. Abernathy, 1 Posey U. C. 109,
and Holland v. Seward, 1 Tex. Ap. Civ. 530, all following rule; Zim-
pelman v. Bobb, 53 Tex. 282, holding deserted w^fe may sell interest
in community property; Bell v. Schwarz, 56 Tex. 355, 356, holding
sale of community to support children insufficient; Caruth t. Grigsby,
57 Tex. 265, holding wife's heir not concluded by probate partition
judgment in which he is not included; Pressley v. Robinson,
57 Tex. 458, holding second widow has no homestead right to
lands homesteaded prior to second marriage; Williams v. Emberson,
22 Tex. Civ. 531, 55 S. W. 600, arguendo. See note, 62 Am. Dec.
457.
The Surviving Spouse may Sell Oonununlty Property for payment
of community debts, and purchasers must see that debts exist.
Approved in Watkins v. Hall, 57 Tex. 2, Ashe v. Yungst, 65 Tex.
636, and Edwards v. Brown, 68 Tex. 335, 336, 5 S. W. 88, 89, all fol-
lowing rule; Wenar v. Stenzel, 48 Tex. 489, 491, holding act of 1856
does not deprive husband of right to sell to pay community debts;
Shannon v. Gray, 59 Tex. 253, holding wife's heirs have no rights
in homestead sold under trust deed executed by husband and wife;
Wilson V. Helms, 59 Tex. 682, 683, 684, holding purchaser from sur-
vivor protected where land sold to reimburse survivor for debts
paid; Sanger v. Moody, 60 Tex. 99, holding sale in good faith to
pay debts valid; Walker v. Abercrombie, 61 Tex. 74, holding sur-
viving wife may preserve title to community by action in her own
name; Garner v. Thompson, 2 Posey XT. C. 234, 235, arguendo. See
note, 19 L. B. A. 234.
Distinguished in dissenting opinion in Yancy t. Batte, 48 Tex. 77,
majority following rule.
Heirs of Deceased Wife are prima facie entitled to have sale of
community set aside upon showing legal title, unless valid sale shown.
Approved in Porter v. Chronister, 58 Tex. 55, holding bankrupt
sale of father's interest in community does not affect wife's heirs;
Ladd V. Parrar (Tex. Sup.), 17 S. W. 57, holding purchasers of com-
munity property from surviving wife sold to pay community debts
take good title; Patty v. Middleton, 82 Tex. 592, 59a, 17 S. W. 912,
holding legal title to community in name of husband does not pass
to wife's heirs as against bona fide purchaser.
48 Tex. 269-278, WHETSTONE ▼. OOFFET.
Every Beasonable Intendment is indulged in favor of pleading de-
murred to generally.
Approved in Gorham v. Dallas etc. By. Co., 41 Tex. Civ. 627, 95
S. W. 557, Gulf etc. By. v. Montier, 61 Tex, 123, Ewin v. Hayden
(Tex. Civ.), 43 S. W. 612, and Teague v. Teague, 22 Tex. Civ. 445,
54 S W. 633, all following rule.
A Deed to Conmuinlty Property by a Hnsband conveys title to all
except the homestead.
Approved in Simonton v. Mayblum, 59 Tex. 9, holding limitation,
runs in favor of adverse claimant to homestead.
757 NOTES ON TEXAS REPORTS. 48 Tex. 278-304
A DiYOTced Woman is not Precluded from recovering her interest
in community property because the decree of divorce does not parti-
tion it.
Approved in Weiss v. Bethel, 8 Or. 526, following rule; Kirkwood
T. Domnau, 80 Tex. 648, 26 Am. St. Rep. 771, 16 S. W. 429, applying
principle to partition suit by divorced wife against husband*s ven-
dee; Gray v. Thomas, 83 Tex. 251, 18 S. W. 723, applying principle
to partition suit; Johnson v. State, 40 Tex. Cr. 611, 76 Am. St. Rep.
743, 51 S. W. 382, applying principle in forgery prosecution; Wim^
berly v. Pabst, 55 Tex. 590, holding bona fide purchaser under pat-
entee not chargeable with notice of latent defects; Barrett v. Fail-
ing, 6 Saw. 477, 3 Fed. 475, arguendo. See notes, 11 L. R. A. (n.
8.) 103; 23 L. R. A. 239.
Distinguished in Bedal v. Sake, 10 Idaho, 283, 77 Pac. 643, 66 L.
R. A. 60, where wife abandons husband and takes up residence in
Oregon and then secures divorce on service by publication and re-
marries, and then abandons husband and returns to Idaho, she has
no interest in homestead of herself and first husband; Barrett v.
Failing, 111 U. S. 529, 4 Sup. Ct. Rep. 601, 28 L. 507, holding di-
vorce bars dower.
In Suit for Recovery of Oommunity Property, it is not necessary
to allege that purchaser from husband had notice of wife's home-
stead rights.
Approved in Cosby v. Stinson (Tex. Civ.), 26 S. W. 276, holding
strangers precluded from objecting to deed to homestead defectively
acknowledged by wife, after lapse of thirty years.
A Conveyance of the Homestead without the privy acknowledg-
ment of wife is void.
Approved in Garcia v. Hlg, 14 Tex. Civ. 486, 37 8. W. 471, follow-
ing rule.
48 Tex. 278-290, HABT v. BULLION.
In Action to Rescind Contract an offer to perform should show an
ability to comply.
Approved in Eauffman v. Brown, 83 Tex. 47, 18 S. W. 427, holding
in executory contract to sell land, party seeking to recover land has
burden of showing offer to make vendee's title good.
48 Tex. 291-299, EDWARDS V. NORTON.
Miscellaneous. — Edwards v. Norton, 55 Tex. 409, referring to former
appeal in statement of facts.
48 Tex. 299-304, GARRISON V. BLANTON.
A Witness may Give Opinion as to testator's mental capacity to
make a will based on the appearance of the party without describing
facts upon which the opinion is based.
See notes, 38 L. R. A. 722, 723; 36 L. R. A. 70.
Distinguished in Brown v. Mitchell, 88 Tex. 359, 31 8. W. 624, 36
L. R. A. 64, holding witness cannot testify as to capacity of testator
to make will.
To Avoid a Will Insanity need not be shown if want of will or of
capacity to understand what he is doing appears.
Approved in Clarke v. Irwin, 63 Neb. 547, 88 N. W. 786, discussing
rules regarding insanity in determining question of limitations for
purpose of adverse possession. See note, 76 Am. Dec. 105.
48 Tex. 304-320 NOTES ON TEXAS REPORTS. 758
To Make a Will, the strength of testator's mind must be equal to
the test to which it is applied.
Approved in Cockrill v. Cox, 65 Tex. 675, following rule; Brown
V. Mitchell, 75 Tex.' 15, 12 S. W. 607, holding person present at ex-
ecution of will may give opinion as to testator's mental capacity;
Williams v. State, 37 Tex. Cr. 353, 39 S. W. 689, holding expert wit-
ness cannot give opinion as to sanity based on part of testimony of
other witnesses.
Subscribing Witness to Will may testify as to testator's mental
capacity at time of signing will.
See note, 39 L. R. A. 719.
48 Tex. 804>309, MOBBOW Y. MOBGAN.
ForeclOBure Proceedings do not affect rights of prior purchaser from
mortgagor who is not party to foreclosure.
Approved in Schmeltz v. Garey, 49 Tex. 58, following rule; Spring
y. Eisenach, 51 Tex. 435, holding junior judgment purchaser not af-
fected by subsequent bankruptcy proceedings to which he is not
party; Silliman v. Gammage, 55 Tex. 369, holding purchaser at ex-
ecution sale holds subject to equitable rights of prior mortg^agee;
King V. Brown, 80 Tex. 278, 16 S. W. 39, holding purchaser in pos-
session under foreclosure sale may foreclose against purchaser after
mortgage within four years after foreclosure sale; Clark v. Gregory,
87 Tex. 192, 27 S. W. 57, holding foreclosure decree a nullity where
subsequent attachment purchaser not a party; Byone v. Miller,- 86
Tex. 78, 23 S. W. 575, arguendo.
Mortgage Providing That Mortgagor shall have possession of prem-
ises, rent free, till a certain date, does not confer right of possession
thereafter to the mortgagee.
Approved in Boggs v. Douglass, 105 Iowa, 347, 75 N. W. 186, hold-
ing judgment creditor in possession by virtue of lien cannot apply
rents to satisfaction of claim. See note, 7 Am. St. Rep. 34.
A Party Claiming Under Foreclosure Sale is subrogated to rights of
mortgagee to the extent of the purchase money, and may compel an
adjudgment of the equities between the parties.
Approved in Loving v. Milliken, 59 Tex. 427, holding where mort-
gagee wrongfully obtains possession tender of mortgage debt unneces-
sary to recovery of possession; Calhoun y. Lumpkin, 60 Tex. 190,
holding mortgagor must tender debt before recovery of possession
where mortgagee rightly in possession; Ogden v. Bosse, 86 Tex. 343,
24 S. W. 801, holding answer setting up mortgage from common
source of title and praying foreclosure ia special plea of title; Comp-
ton V. Seley (Tex. Civ.), 27 S. W. 1078, holding possession under trust
deed given to secure debt due vendor cannot be disturbed until debt
is paid; Wiggins v. Wiggins, 16 Tex. Civ. 341, 40 S. W. 646, holding
grantee of deed intended as mortgage cannot recover in trespass to
try title where grantors in possession; Williamson v. Wright, 1 Posey
IJ. C. 720, 721, holding mortgage cannot be pleaded as outstanding title.
See note, 62 Am. Dee. 539.
48 Tex. 309-320, WITHEBSPOON v. TEXAS ETC. B. S.
The Trust Cast by Paschal's Digest, 4916, on directors of sold-out
railroad must be exercised collectively and not as individuals.
Approved in Quinlan v. Houston etc. Ry., 89 Tex. 380, 34 S. W.
746, holding railroads constructing lines, under act of 1854, secured
759 NOTES ON TEXAS BEPOBTS. 48 Tex. 321-355
benefits until two years after war; Houston etc. B. B. v. Shirley, 54
Tex. 144, arguendo. ^
48 Tex. 321-324, OBAVENS v. WILSON.
The Ezecntlon of the Jndgment is no ground for refusal to review
on appeal.
Approved in Dunham v. Bandall, 11 Tex. Civ, 267, 32 S. W. 721,
holding offer bj plaintiff to return money does not restore right of
appeal.
Miscellaneous. — Miscited in Hansbro v. Blum, 3 Tex. Civ. Ill, 22
S. W. 271, for succeeding case. .
48 Tez. 324-344, CBAVENS v. WILSON.
Judgments Bendered in 1865 do not lose lien on land when ex-
ecution issued within one year after decision that stay law void.
Approved in Delespine v. Campbell, 52 Tex. 11, holding failure
to execute while stay law in force does not prejudice mortgage lien.
Though Stay Law of 1866 was void, its effect was to excuse fail-
ure to execute on judgments rendered in 1865-66.
See note, 98 Am. Dec. 511.
Levy of Attachment is no satisfaction of the demand.
See notes, 58 Am. Dec. 351; 58 Am. Dec. 353; 91 Am. Dec. 314.
Where Sheriff is Oullty of Irregnlarities preventing fair execu-
tion sale, the creditor may move to set aside the sale on notice to
the purchaser, or may intervene in a suit^ involving the title, be-
tween the purchaser and third party.
Approved in Flanagan v. Pearson, 50 Tex. 389, holding parties
having' interest in land may enjoin execution sale to which they
were not parties; Carpenter v. Sanborn (Tex. Civ.), 25 S. W. 36,
holding equity will not enjoin execution for irregularities in sale,
inadequacy of price, and lack of diligence to collect judgment unless
injury to complainant is shown; Wilson v. Aultman (Tex. Civ.), 39
S. W. 1104, holding proper mode of proceeding to set aside execution
sale is by motion in original action; Bean v. Brown wood, 91 Tex.
690, 45 S. W. 900, holding defendant whose property illegally sold
not estopped from setting aside sale by presence at sale; Hansbro v.
Blum, 3 Tex. Civ. Ill, 22 S. W. 271, holding irregular foreclosure
sale may be set aside on motion, though purchaser is nonresident.
See note, 91 Am. Dec. 314.
An Intervener Claiming Land improperly sold on execution under
prayer for general relief is entitled to writ of possession and to judg-
ment for rents and profits.
Approved in Page v. Carson (Tex. Sup.), 16 S. W. 1036, holding
petition in suit on note for two hundred dollars and interest suffi-
cient to sustain judgment for real amount due under prayer for
general relief.
Hjrpothetical Instructions not warranted by the evidence, which
may have misled the jury, are grounds for reversal.
Approved in Byrnes v. Morris, 53 Tex. 219, following rule; Hous-
ton etc. By. V. Gilmore, 62 Tex. 392, holding charge ca to duty of
railroad in selection of employees erroneous.
48 Tex. 345-356, BBYOBLY V. CLABK.
A Bin for New Trial must show sufficient matter to have entitled
the party to a new trial if application was made during the term
and a legal excuse for not then applying.
Distinguished in Hamblen v. Knight, 60 Tez. 40, upon facts.
48 Tex. 355-364 NOTES ON TEXAS EEPORTS. 760
If Paxty Still has Legal Bemedy by motion for new trial, he must
show that it is inadequate to justify equitable suit.
Approved in Sharp v. Elliott, 70 Tex. 669, 8 S. W. 490, holding
decree in partition valid till set aside; Alexander v. San Antonio
Lumber Go. (Tex. Sup.), 13 S. W. 1025, holding new trial may be
obtained after term, by showing sufficient ground for new trial if
applied for at term and reason for not so applying; Gulf etc. Ry. v.
King, 80 Tex. 683, 684, 16 S. W. 642, restraining enforcement of
justice's court default judgment, where no appeal can be taken;
Hamblin v. Knight, 81 Tex. 354, 26 Am. St. Eep. 819, 16 S. W. 1082,
denying injunction against collection of judgment. See notes, 67 Am.
Dec. 653; 32 L. E. A. 327; 30 L. R. A. 790.
Judgments Dining the Term at which rendered are under the court's
control, and a second motion for new trial may be allowed.
Approved in Mo. Pac. Ry. v. Houston Flour Mills Co., 2 Tex. Ap.
Civ. 505, following rule; Hume v. John B. Hood etc. Veterans (Tex.
Civ.), 69 S. W. 643, trial court may rescind order awarding new trial
and reinstate judgment; Humphries v. State (Tex. Cr.), 69 S. W.
528, where court entertained motion to set aside order overruling
motion for new trial, appeal lies for order overruling last motion;
Barton v. American Nat. Bank, 8 Tex. Civ. 226, 29 S. W. 211, applying
principle in suit on note; Grisham v. State, 19 Tex. Ap. 512, applying
principle in criminal case; Blum v. Wettermark, 58 Tex. 127, holding
eourt may overrule judgment during term, though appeal perfected;
Mitchell V. Mitchell, 84 'Tex. 306, 19 S. W. 478, holding voluntary
dismissal not error where party not prejudiced; Metcalf v. State, 21
Tex. Ap. 174, 17 S. W. 142, holding court may correct judgment in
misdemeanor cases; Hartzell v. Jones, 2 Posey U. C. 563, holding new
trial granted at second term after rendition of judgment is void.
Judgments During the Term at which rendered are under the
court's control and a second motion for new trial may be allowed.
Approved in Int-emational etc. Loan Assn. v. Hardy (Tex. Civ.),
26 S. W. 524, holding district court may entertain motion for new
trial, during same term after one has been overruled; Homes v.
Henrietta (Tex. Civ.), 46 S. W. 872, holding court of civil appeals
may grant second motion for rehearing during term though former
motion was denied.
48 Tex. 355-364, McCLELLAND y. MOOBE.
A Judgment Rendered When Both Plaintiff and Defendant are dead
is erroneous.
Approved in Best v. Nix, 6 Tex. Civ. 351, 25 S. W. 131, holding
where party died after citation, judgment merely voidable; King v.
Burdett, 28 W. Va. 604, 57 Am. Rep. 690, holding where party dies
before judgment, but death not in record, it is not attackable col-
laterally. See notes, 52 Am. Dec. 110; 29 Am. St. Rep. 816, 817.
Where the Parties are Dead at the rendition of the judgment and
the record does not show the fact, relief is obtainable only by bill of
review, new trial, or motion to set aside the judgment.
Approved in Jones v. Parker, 67 Tex. 78, 3 S. W. 224, holding when
bill of review seeks to revise guardian's account items must be set
out; Best v. Nix, 6 Tex. Civ. 353, 25 8. W. 132, holding right of minor
to attack judgment by bill of review barred two years after marriage;
De Camp v. Bates (Tex. Civ.), 37 S. W. 645, holding judgment will
not be reopened and corrected after lapse of six years, unless excuse
for delay shown. See note, 49 L. R. A. 167, 173.
761 NOTES ON TEXAS BEPORTS. 48 Tex. 364-379
Land Office Copies of Patents are admissible in evidence on proper
showing for admission of secondary evidence.
Approved in Ney v. Mumme, 66 Tex. 269, 17 S. W. 408, holding
certified copy of patent from land office records is prima facie evi-
dence of its issuance.
The Measure of Damages on Breach of Warranty of Title, where
the purchaser removes the encumbrance, is the amount reasonably
paid for that purpose.
Approved in James v. Lamb, 2 Tex. Civ. 188, 21 S. W. 173, and
Dillahunty v. Railway Co., 59 Ark. 638, 2iS S. W. 657, both followiug
rule; Williams v. Finley, 99 Tex. 473, 474, 90 S. W. 1089, 1090, apply-
ing rule where vendee made improvements on land afterward learned
to belong to state; Deneon v. Love, 58 Tex. 472, holding in suit on
purchase price note vendor can only recover expense of purchase of
outstanding title; Clark v. Mumford, 62 Tex. 535, holding in suit on
warranty attorney's fees not recoverable; Smith v. Jarvis (Tex. Civ.),
24 S. W. 855, holding in suit for purchase money to entitle defendant
to credit for money paid for outstanding title, he must show para-
mount title and amount reasonably paid therefor; Johnson v. Blum,
28 Tex. Civ. 13, 66 S. W. 463,. and Oury v. Saunders, 77 Tex. 281, 13
S. W. 1031, both arguendo.
48 Tex. 364-370, CONNER v. HUFP.
Heirs of Deceased Wife cannot recover from husband's purchaser
of community if it is shown that they received from father's estate
more than their interest in the community.
Approved in Brown v. Elmendorf, 87 Tex. 60, 26 S. W. 1044, follow-
ing rule; Lemonds v. Stratton, 5 Tex. Civ. 407, 24 S. W. 371, holding
long acquiescence in partition decree bars right.
Distinguished in Griffin v. West Ford, 60 Tex. 505, holding failure
of heirs to apply for protection when husband is about to waste estate
does not forfeit rights.
48 Tex. 372-379, MARCH v. WALKER.
Under Statute Anthorizing Heirs to Sue for Damages for death by
wrongful act, the measure of damages is the pecuniary injury, in-
cluding loss of prospective advantage, but not for mental suffering.
Approved in Southern etc. Mfg. Co. v. Bradley, 52 Tex. 602, Houston
etc. By. V. Cowser, 57 Tex. 301, 303, Missouri etc. By. v. Henry, 75
Tex. 224, 12 S. W. 829, and Galveston etc. By. v. Worthy, 87 Tex. 465,
29 S. W. 376, all following rule; Storrie v. Marshall (Tex. Civ.), 27 S.
W. 225, holding pecuniary lose is measure of damage in action for
death of parent; Morgan v. Southern Pacific Co., 95 Cal. 517, 29 Am.
St. Bep. 145, 30 Pac. 603, 17 L. B. A. 71, following rule in action for
death of child; Galveston etc. B. B. v. Le Gierse, 51 Tex. 203, uphold-
ing veidict for exemplary damages; International etc. By. v. Kuehn,
2 Tex. Civ. 217, 21 S. W. 61, holding testimony as to cost of raising
children inadmissible; Gulf etc. By. v. Finley, 11 Tex. Civ. 71, 32 S.
W. 53, holding wife cannot recover for deprivation of solace and
comfort; Williams v. Missouri Furnace Co., 13 Mo. Ap. 74, holding
all damages directly and naturally resulting from trespass to realty*
recoverable in one action; Smith v. Chicago etc. By., 6 S. D. 589, 62
N. W. 968, 28 L. B. A. 573, following rule in action by father as
administrator for death of son; Southern Pacific Co. v. Tomlinson,
163 U. S. 374, 16 Sup. Ct. Bep. 1173, 41 L. 195, construing title 36,
/
J
48 Tex. 379-399 NOTES ON TEXAS BEPOBTS. 762
Be vised Statutes of Arizona; Hall ▼. Qalveston etc. By., 39 Fed. 21,
holding jury may consider son's habits, earnings, and health. See
note, 13 L. B. A. 860.
In a Salt for Damages by Minor Children, under act of February,
1860, failure to allege want of surviving parents is not available on
general exception.
Approved in Southern etc. Manufacturing Co. v. Bradley, 52 Tex.
597^ upholding husband's suit for wife's wrongful death wh«re record
does not show other parties.
That Jury Fails to Apportion Damages Among Plaintiffs in action
for wrongful death is not ground for reversal in absence of objection.
Approved in Galveston etc. ti. B. v. Le Gierse, 51 Tex. 200, holding
, jury must apportion amount recovered. See note, 34 L. B. A. 796.
Distinguished in Dallas etc. B. B. v. Spiker, 59 Tex. 437, holding
wife cannot sue alone where absence of proper parties properly ob-
jected to.
The Law of Self-defense is the same in civil as in criminal actions,
with the exception of the rule giving the defendant benefit of reason-
able doubt.
Approved in Tucker v. SUte, 89 Md. 484, 43 AtL 782, 46 L. B. A.
181, and Croft v. Smith (Tex. Civ.), 51 S. W. 1091, both reaffirming
rule. See note, 23 L. B. A. (n. s.) 996.
Whether, at Time of Killing, deceased had so plainly abandoned
his attack as to make further apprehension of danger unreasonable is
for the jury.
Approved in Brown v. Perez (Tex. Civ.), 25 S. W. 982, holding
wihere issue was execution of deed, instruction that plaintiff had filed
affidavit attacking deed "pretended" to be executed, etc., and that
affidavit raised issue of its genuineness, is error.
Minor Plaintiffs must Sue by guardian.
Approved in Mexican Central B. Co. v. Eckman, 187 U. Sw 435,
23 Sup. Ct. Bep. 211, 47 L. 248, guardian and not ward is party plain-
tiff so far as federal jurisdiction invoked on ground of diverse citizen-
ship, where under state law guardian may sue in own name.
Children of Deceased may Sue jointly for wrongful death of parent.
See note, 34 L. B. A. 797.
In Snit for Damages for Malicious Killing of plaintiff's father, ac-
quittal of defendant on criminal prosecution for same matter is
immaterial.
Approved in Bekkeland v. Lyons, 96 Tex. 257, 72 S. W. 57, 64 L. B.
A. 474, 'in suit for malicious prosecution, evidence of plaintiff's ac-
quittal is inadmissible to show malice or want of probable cause.
48 Tex. 379-399, BAGhSDALE y^ BOBINSOK.
Objections to Beceptlon of Instrument in evidence not made below
are not available on appeal, though apparent on original instrument
sent up with record.
Approved in M. P. By. v. Bountree, 2 Tex. Ap. Civ. 339, holding
bill of exceptions must state grounds of objection to evidence; Cairrell
V. Higgs, 1 Posey U. C. 63, holding court will not declare deed a
forgery without evidence of handwriting.
To Warrant the Exclusion of Deed from Evidence, its invalidity
must appear on its face, or that it is for different land from that
claimed.
763 NOTES ON TEXAS BEPOBTS. 48 Tex. 399-403
Approved in Bainbolt v. March, 52 Tex. 251, applying principle to
title bond.
Delivery of Duly Executed Deed with authority to fill blanks estops
grantor from denying its validity against bona fide purchaser for
value.
Approved in Stone v. Brown, 54 Tex. 338, holding failure to fill in
blanks does not invalidate deeds; Henke v. Stacy, 25 Tex. Civ. 275,
61 S. W. 511, holding insertion of description after acknowledgment
of deed does not affect record; State v. Matthews, 44 Kan. 604, 25
Pac. 39, 10 L. B. A. 308, holding deed filled in, contrary to instruc-
tions, void as to parties with notice; Cribben v. Deal, 21 Or. 218, 28
Am. St. Bep. 751, 27 Pac. 1048, holding parol authority to fill blanks
in deed sufficient; Lockwood v. Bassett, 49 Mich. 549, 14 N. W. 493,
arguendo. See notes, 13 Am. Dec. 670; 2 L. B. A. 530.
That Constmctlon is Preferred which will give effect to the con-
tract.
Approved in Threadgill v. Butler, 60 Tex. 601, upholding authority
given vendee to fill blanks; Talkin v. Anderson (Tex. Sup.), 19 S. W.
352, holding court will reject calls for courses, and apply only calls
for distance, where latter plainly identify land.
Deed Describing Land as Two Hundred Acree, part of a survey,
other part having been sold to B, and latter part having been identi-
fied, is sufficient and controls contradictory calls.
Approved in Wilson v. Smith, 50 Tex. 370, holding sheriff's deed
not void for uncertainty where land identified by extrinsic evidence;
Steinbeck v. Stone, 53 Tex. 386, holding deed naming tract and
county and referring to recorded deeds is sufficient; Potter v. Wheat,
53 Tex. 406, holding instruction for either party erroneous where
there is contradictory testimony; Bowles v. Beal, 60 Tex. 324, holding
description sufficient to admit sheriff's deed in evidence; Maddox v.
Fenner, 79 Tex. 292, 15 S. W. 239, holding unmarked lines of surround-
ing surveys prevail over courses and distances; Blackburn v. Mc-
Donald, 1 Posey U. C. 359, holding deed describing number of acres,
grant, and county is sufficient; Adams v. Mauermann (Tex. Civ.), 40
S. W. 23, holding description in judgment conforming to pleadings
and sufficient to identify land is sufficient; Cox v. Hart, 145 U. S. 388,
12 Sup. Ct. Bep. 967, 36 L. 746, upholding marshal's deed describing
land as part of certain grant; Vineyard v. O'Connor, 90 Tex. 63, 36 S.
W. 425, arguendo. See notes, 30 Am. Dec. 742; 129 Am. St. Bep. 1012.
48 Tex. 399-403, FIERCE v. WALLACE.
Words In a Will, ''I wish my estate to be kept out of the probate
court," substantially complies with Paschal's Digest, 1371.
Approved in Patten v. Cox, 9 Tex, Civ. 304, 29 S. W. 184, holding
provision for exemption of will from control of court after probate
does not exempt executor from statutory duties.
Distinguished in Wood v. Mistretta, 20 Tex. Civ. 244, heirs and
devisees are bound by judgment against independent executor in
action involving title to estate's property, though not made parties.
Suit cannot be Maintained In the County Court on an executor's
bond which is purely voluntary, and without authority of law.
Approved in Bose v. Winn, 51 Tex. 550, holding administrator's^
bond valid though formal conclusion omitted; State v. Vinson, 5 Tex.
Civ. 317, 23 S. W. 808, holding liquor dealer's penal bond strictly
construed.
48 Tex. 403-413 NOTES ON TEXAS REPORTS. 764
48 Tex. 403-407, O'NEAL v. MANNINa.
After Perfection of a Pre-emption Claim according to statute aa I
abandonment of the place is not an abandonment of the claim. i
Approved in Gardner v. Burkhart, 4 Tex. Civ. 693, 23 S. W. 710,
holding division of pre-emption does not affect right as separate
property after marriage; Clifton v. Thompson (Tex. Civ.), 29 S. W.
199, holding homestead not defeated after claim is otherwise perfected
by failure to make proof of occupancy and improvements.
Distinguished in Wood v. Collins, 60 Fed. 141, holding pre-emptor
failing to file proof of occupancy before location of subsequent patent
loses right.
The Statement of Land Office Commissioner that pre-emption aban-
doned is not evidence of abandonment.
Approved in Clark v. Smith, 59 Tex. 279, holding recitals in un-
conditional certificate that conditional certificate is in land office are
sufficient.
When Patents Conflict, later patentee has burden of proving that
title attached at earlier date.
Approved in Chinn v. Taylor, 64 Tex. 390, holding to entitle party
to remove cloud he must show paramount title; Sheppard v. Avery,
89 Tex. 309, 34 S. W. 443, holding where party shows subsisting
equitable title adversary must show forfeiture of right; Sheppard v.
Avery (Tex. Civ.), 32 S. W. 793, 794, holding elder legal title must
prevail until superior equities in holders of junior title shown; Fors-
gard V. League (Tex. Civ.), 45 S. W. 175, holding burden on claimants,
under junior grantee, to show prior equitable right in junior grantee.
Where Surrey Is Made and Filed in land office, patent issued thereon
is valid.
Approved in Witherspoon v. Olcott, 119 Fed. 176, 56 C. C. A. 171,
patent regularly issued to Texas state land not void though survey
on which based made by surveyor working outside regular district.
48 Tex. 408-413, PETERSON v. LOWRY.
A Written Acknowledgment by Grantee of sale .of land certificate
is entitled to record, and, when recorded, operates as notice.
Approved in McLouth v. Hurt, 51 Tex. 121, holding registration is
only notice of what appears on face of deed as recorded; Saunders
V. Hartwell, 61 Tex. 686, holding record of purchase money notes is
notice; Graham y. Hawkins, 1 Posey U. C. 519, holding deed is only
notice of its recitals; Stanley v. Samples, 2 Posey U. C. 128, holding
where instrument shows that it is a will, error to leave to jury to
decide whether it is will or deed.
Mere Irregularities in Making Probate Sale do not affect its validity
when collaterally attacked.
Approved in Bindge v. Oliphint, 62 Tex. 686, holding purchaser at
probate sale need not inquire as to validity of administrator's ap-
pointment.
Eztraneoos Evidence Is Inadmissible to prove nullity of acknowledg-
ment regular on its face.
Approved in Henke v. Stacy, 25 Tex. Civ. 275, 61 S. W, 511, hold-
ing third party cannot question validity of acknowledgment regular
on face. See note^ 26 Am. Bep. 310.
765 NOTES ON TEXA
48 Tex. 413-454, £Z FABTE TOWI^E
In Election ContMt TTuder Act of ]
legal vote» by lho»« entitled to vot
laritiea in retarns.
Approved in Donaldson v. State, ]
note, 90 Am. St. Kep. 90.
When Statute haa tint Sin^« Ob]*
void, the whole fails.
Approved in Hanell v. Lynch, 65 T
mann v. Von RoBonberg, 7a Tei. 527,
of Revised Statutes, 2002, attcmptin)
to widow and minor children; State v.
Scott Law of 1883 void as to ptovi
occupied by liquor dealers.
District Court has No Snporlnten
tribunals by writ.
Approved in Blanc v. Meyer, 59
restrain collection of taxes for twent
B. A. 69.
District Court baa No Jurisdiction
1875, relating to removal o£ county is
Approved in State v. Owecs, 63 1
lies to district court to try title to offi
Distinguished in Cobb v. Cobron (T
district court has jurisdiction of conte:
ment to constitution adopted in 1891,
Citizens or Voten have no propert;
Approved in Harrell v. Lynch, 85 '
jurisdiction over damage suit by reai
Canithers v. Harnett, 67 Tei. 131, 2
injunction to compel removal of reeo
V, Dubba, 84 Tei. 505, 19 S. W. 686,
strain organization of county; Wootte
33 S. W. 395, holding private citizens i
way under Keviaed Statutes, 375; Bay
W. 568, holding citizen without sueh
would enable him to contest election
Am. Dec. 807.
Proceeding by Voter to Bevlev Cc
upon county Mat election contest is
Approved in Robinson v. Wingate,
injunction does not lie to prevent con
ing returns and publishing result of 1
rendering election void or available t
tion contest; Myers v. Chicago etc. E
1078, though proceedings for condemn
to appeal to district court are in na
district court of appeal it takes form
to federal court; Lawry v. Board of (
Pac. 191, holding act of March, 189^
election contest for removal of coun
{•7 Tex. 236, arguendo.
48 Tex. 413-454 NOTES ON TEXAS BEPOBTS. 7C6
Distinguished in Bexar Co. ▼. Terrell (Tex. Sup.), 14 8. W. 64, hold-
ing appeal lies to district court from assessment of damages for
opening road by county commissioners.
JurlBdlction of District Court Stated.
Approved in Qibson v. Templeton, 62 Tex. 556, 557, holding district
court has no jurisdiction over election contest; Texas etc. By. v.
Jarvis, 80 Tex. 463, 15 S. W. 1091, denying jurisdiction of district
court under act of 1862, over land claims originating after 1865;
Odell v. Wharton, 87 Tex. 174, 27 S. W. 123, holding ordinary pro-
cedure does not apply to election contest under local option act of
1893.
"Case" and "Suit" Defined.
Approved in Barnett v. Pemiscot County Court, 111 Mo. Ap. 699,
86 S. W. 576, under Bev. Stats. 1899, sees. 1674, 1788, appeal does not
lie from county court's revocation of liquor license under Bev. Stats.,
sec. 3012; Eckerle v. Wood, 95 Mo. Ap. 384, 69 S. W. 46, proceeding
under Bev. Stats. 1899, sees. 74-79, for discovery of assets of an
estate is "suit pending" within law for taking depositions; Gibson v.
Sidney, 50 Neb. 14, 69 N. W. 315, holding hearing of motion to dis-
solve attachment is a "trial."
The Judicial System established by the constitution cannot be
v^ r changed by the legislature.
^sl Approved in Ex parte Whitlow, 59 Tex. 274, and Coombs v. State
y (T€!i. Cr.), 47 S. W. 165, 167, both reaffirming rule; Ex parte Ander-
son, 46 Tex. Cr. 375, 380, 81 S. W. 973, 976, denying the city court's juris-
diction over violation of state law; Gulf etc. By. Co. v. Martin, 38 Tex.
Civ. 382, 86 S. W. 26, upholding act of 1903, creating 62d judicial
district; Ex parte Cox, 44 Fla. 540, 33 So. 510, 61 L. B. A. 734, writ
of error does not lie from supreme court to review judgment of in-
dividual justice thereof in habeas corpus; Williamson v. Lane, 52 Tex.
347, holding supreme court has no jurisdiction in election contest;
Harrell v. Lynch, 66 Tex. 150, holding part of act 1879 giving district
court jurisdiction over county seat election contest void; State v.
De Gress, 72 Tex. 246, 11 S. W. 1030, holding act of 1879 does not
give district court jurisdiction to try title to unsalaried office; Brown
V. Wheelock, 75 Tex. 387, 12 S. W. 112, upholding statute providing
for removal of disabilities of minors; Leach v. State, 36 Tex. Cr. 251,
36 S. W. 472, holding legislature cannot give municipal court concur-
rent jurisdiction with state courts for violation of state law; Ex parte
Coombs, 38 Tex. Cr. 662, 44 S. W. 861, denying legislative power under
constitution of 1891, to give city court power to suspend state penal
law; Ex parte Coombs, 38 Tex. Cr. 672, 674, 47 S. W. 165, 167, holding
under constitution of 1891 municipal court cannot have concurrent
jurisdiction with state court over state offense; Pratt v. Breckinridge
(Ky.), 65 S. W. 148, in dissenting opinion, majority holding legislature
without power to create board with judicial powers to try election
contests.
Distinguished in Harris Co. v. Stewart, 91 Tex. 138, 141, 142, 145,
41 S. W. 653, 655, 657, holding under Houston charter recorder has
same jurisdiction as justice of the peace.
Part of Comity Seat Act of 1876 giving appeal to district court
is void.
Distinguished in Messer v. Cross, 26 Tex. Civ. 37, 63 S. W. 171,
arguendo.
767 NOTES ON TEXAS REPOBTS. 48 Tex. 455-471
Miscellaneoos. — Lange v. Canithers, 70 Tex. 722, 8 S. W. 606| and
Wright V. Farmers' Nat. Bank, 31 Tex. Civ. 407, 72 S. W. 104, both
miscited for 58 Tex. 420.
48 Ttox. 456-463, sklTH Y. OHENAULT.
Wbere Party Is Permitted to Bead in Evideiice part of adversary'^
answer in other cases, latter may read part of remainder relating
to same subject matter.
Approved in Cox t. State, 8 Tex. Ap. 294, permitting re-examina-
tion as to remainder of former statements brought out on cross-
examination.
Deed Made Under Sale by Virtae of Judgment, caption of which
gives firm name, and under execution which gives names of all par-
ties, is valid on collateral attack.
Approved in Stephens v. Turner, 9 Tex. Civ. 627, 29 S. W. 938,
applying principle to constable's deed issued under irregular judg-
ment; Fitch V. Boyer, 51 Tex. 345, upholding execution on collateral
attack, though irregularity shown; Bradford v. Rogers, 2 Posey V.
C. 61, holding judgment omitting defendant's Christian name valid;
Blumenthal v. Youngblood, 24 Tex. Civ. 268, 59 S. W. 291, holding
judgment against firm under Sayles' Civ. Stats., arts. 1224, 1347, in-
cludes personal judgment against cited partner; Cooke v. Avery, 147
U. S. 391, 13 Sup. Ct. Bep. 347, 37 L. 215, holding index to abstract of
judgments sufficient for lien purposes where name given by partner-
ship title; Taylor v. Branham, 35 Fla. 305, 48 Am. St. Bep. 254, 17
So. 555, 28 L. B. A. 391, holding judgments are aided and construed
by entire record; First Nat. Bank v. Garland, 109 Mich. 517, 63 Am.
St. Bep. 598, 67 N. W. 559, 33 L. B. A. 83, upholding judgment
"against said defendants" where title of case is stated; State v.
Bank of Neosho, 120 Mo. 171, 25 S. W. 374, holding tax assessments
in name by which bank does business sufiicient.
Equitable Bight to Land occupied as homestead protects from
forced sale.
Approved in Tracy v. Harbin, 40 Tex. Civ. 396, 89 S. W. 1000, con-
veyance in fee simple with condition subsequent supports claim of
homestead exemption; Seay v. Fennell, 15 Tex. Civ. 265, 39 S. W.
183, holding homestead character impressed on land occupied under
parol contract; Corder ▼. Steiner (Tex. Civ.), 54 S. W. 278, holding
judgment in favor of partnership not void because not naming part-
ners; Barnes v. Nix (Tex. Civ.), 56 S. W. 204, holding execution
incorrectly reciting date, but otherwise correctly describing judg-
ment, is not void.
Partnership Use of Homestead, consistent with use as homestead,
does not affect exemption existent before such use.
See note, 1 Am. St. Bep. 594.
Member of Firm Occupying Partnership Property cannot, as against
firm creditors, exert homestead right on whole tract on dissolution
of firm.
See note, 63 Am. Dec. 124.
One cannot Acquire Homestead Bights on land he does not own.
Approved in Mitchell v. Nix, 1 Posey U. C. 140, holding homestead
does not vest till patent issues.
48 Tex. 463-471, 26 Am. Bep. 328, WILLIS v. OAT.
Presumption of Waiver of Vendor's Lien by taking note in pay-
ment is rebuttable.
See note, 7 Am. St. Bep. 95.
48 Tex. 471-481 NOTES ON TEXAS REPORTS. 768
Becitals in Deed, through which party claims title, are notice of
facts recited.
Approved in Robertson v. Guerin, 50 Tex. 323, following rule;
Renick v. Dawson, 55 Tex. 109, holding where recitals in land patent
show conveyance of certificate by bankrupt to assignee, patentee
only acquires right which bankrupt could convey; Gaston v. Dashiell,
55 Tex. 517, holding parties deraigning title through written in-
struments chargeable with knowledge of contents; Crews v. Taylor,
56 Tex. 467, holding record of deed reciting consideration secured is
notice of vendor's lien; Pugh v. Mays, 60 Tex. 194, purchaser has
notice of recitals in deed, giving grantor of vendor right to re-enter;
Graham v. West (Tex. Civ.), 26 S. W. 921, holding purchaser taking
warranty deed from vendee, knowing that sale was on credit, and
that purchase money notes are unpaid, is not innocent purchaser;
Christian v. Hughes, 12 Tex. Civ. 626, 36 S. W. 300, recitals in deed
that purchase money secured by trust deed are notice, though trust
deed unrecorded; Graves v. State, 31 Tex. Cr. 67, 19 S. W. 895,
holding indictment for swindling must aver that vendor's lien note
not contained in defendant's deed; McAfee v. Wheelis, 1 Posey U. C.
71, holding vendor asserting lien against execution purchaser must
prove notice; Dean v. Hudson, 1 Posey U. C. 369, holding note
recited in deed is notice of lien; Franks v. Hancock, 1 Posey U. C.
568, purchaser of heirs by metes and bounds, with knowledge of
division between heirs and widow, cannot complain of failure to
include widow's share in partition suit; Robinson v. Owens, 103 Tenn.
92, 52 S. W. 870, holding vendor cannot enforce lien when vendee's
deed merely recites that purchase money secured by note since out-
lawed; Gallaher v. Herbert, 117 HI. 170, 7 N. E. 512, holding pur-
chaser toolb with notice of annuity covenant; Reichert v. Neuser, 93
Wis. 517, 67 N. W. 940, holding recital in covenant against encum-
brances "except certain mortgage of $900" is notice of mortgage.
See following notes: 23 Am. Dec. 49, 50; 64 Am. Dec. 202; 45 Am.
Rep. 188.
48 Tex. 471-181, HOWABD v. MABSHAIJ..
Constitntion of 1869 protects homestead rights in family composed
of spouse and children, and not of persons such as servants neither
related by blood or marriage.
Approved in Fox v. Waterloo Nat. Bank, 126 Iowa, 485, 102 N.
W, 426, homestead of man residing therein with adult daughter, who
kept house for him, is exempt as homestead of family; Roco v. Green,
50 Tex. 490, holding married daughter and children residing with
mother not part of family; Andrews v. Hagadon, 54 Tex. 577, hold-
ing married children cannot claim homestead as against purchaser;
Goode V. State, 16 Tex. Ap. 415, applying principle to prosecution
for illegal sale of estrays; Mullins v. Looke, 8 Tex. Civ. 143, 27 S.
W. 928, holding single man and orphan boy not family within home-
stead law; McMillan v. Hendrick (Tex. Civ.), 46 S. W. 861, holding
boy taken into family, but not legally adopted, not constituent of
family succeeding to homestead; Munzenberger v. Boehme, 2 Posey
U. C. 390, and Bybee v. Wadlington, 2 Posey U. C. 467, both ar-
guendo. See note, 70 Am. Dec. 295.
Distinguished in Withee v. Brown, 1 Tex. Ap. Civ. 274, holding
married man may claim property as exempt after dissolution of
marriage.
769 NOTES ON TEXAS EEPOETS. 48 Tex. 483-509
Only Family can have Homestead under Paschars Digest, 6834,
6835.
Approved in Broches t. Carroll, 2 Posej XT. C. 145, holding aingle
man cannot have homestead. See notes, 67 Am. Dec. 645; 70 Am.
St. Eep. 110; 4 L. E. A. (n. s.) 366, 387.
Paschal's Digest, 6834, 6835, relative to exemption of homesteads,
superseded all former laws on homestead exemption.
Approved in Eoeo v. Qreen, 50 Tex. 489, and Eamey v. Allison, 64
Tex. 702, both arguendo.
48 Tez. 48S-484, PEISEB Y. PETICOLAS.
Intervener in Sequestration Proceedings seeking to have proceeds
applied to former judgment must make original defendant a party
to proceedings in error.
Approved in Irvin v. Ellis, 76 Tex. 167, 13 S. W. 23, 3 L. E. A.
424, upholding intervener's petition in sequestration proceedings.
48 Tez. 484-491, WENAB v. STENZEL.
Power of Sorviying Husband to sell community property to pay
community debt is not affected by#aet of 1856.
Approved in Watkins v. Hall, 57 Tex. 2, and Sanger v. Moody, 60
Tex. 98, 99, both following rule; Ashe v. Yungst, 65 Tex. 636, apply-
ing principle in suit to remove cloud from title; Wilson v. Helms, 59
Te.x. 682, holding heir for whose debt community property liable
cannot question title of father's purchaser; Walker v. Abercrombie,
61 Tex. 74, holding surviving wife may maintain action for debt due
deceased husband; Manchaca v. Field, 62 Tex. 142, holding pre.
sumption that debts existed indulged in favor of husband's vendee
of community property; Ladd v. Farrar (Tex. Sup.), 17 S. W. 57,
holding surviving wife's deed to community property, fairly sold
for community debt, conveys title; Cage v. Tucker, 25 Tex. Civ. 51,
60 S. W. 581, holding bona fide purchaser of community sold by sur-
vivor to pay debts gets good title. See notes, 84 Am. Dec. 619;
19 L. E. A. 234.
Where Beqnestad Instruction^ though connected with objectionable
matter, is sufficient to call court's attention to matter omitted in
charge, it is error not to charge on omitted matter.
Approved in Boettler v. Tumlinson (Tex. Civ.), 77 S. W. 826, where
defendant fails to request additional instructions, he cannot com-
plain of correct charge.
48 Tex. 491-609, TEAL Y. TEBBELL.
A Judgment is Bes Adjudicata as to matters actually determined
and involved in the issues.
Approved in Lucas v. Heidenheimer, 8 Tex. Ap. Civ. 429, and
Jones V. Lee (Tex. Civ.), 20 S. W. 866, both following rule; Norton
V. Wochler, 31 Tex. Civ. 524, 72 8. W. 1026, applying rule in suit
on note against indorser; City of Houston v. Walsh, 27 Tex. Civ.
126, 66 S. W. 109, judgment in favor of taxpayer setting aside tax
sale to city, where no recovery asked for value of part sold by city
to innocent purchaser, is no bar to recovery of such value from city;
Hammer v. Woods, 6 Tex. Civ. 183, 24 S. W. 943, applying principle
to suit to foreclose landlord's lien; Alamo Fire Ins. Co. v. Schmidt,
10 Tex. Civ. 553, 30 S. W. 835, holding judgment against one joint
plaintiff bars other.
2 Tex. Notes — 49
48 Tex. 491-509 NOTES ON TEXAS REPORTS. 770
All Matten in Utigatioii in Previoiu Suit which could have been
adjudicated are concluded hj the judgment.
Approved in Noel v. Clark, 25 Tex. Civ. 144, 60 S. W. 360, applying
principle to suit on lien note; Monks v. McGrady, 71 Tex. 140, 8 S.
W. 620, holding judgment as to warranty res adjudicata; Haynie ▼.
McAnally (Tex. Civ.), 27 S. W. 434, holding decree that "deeds exe-
cuted in accordance with agreement," etc., is final adjudication that
deeds were in accordance with agreement; Rogers v. Southern Pine
Lumber Co., 21 Tex. Civ. 56, 51 S. W. 30, holding after-acquired title
may be pleaded in subsequent suit between same parties.
Distinguished in Beer v. Lindenthal, 1 Tex. Ap. Civ. 126, holding
res adjudicata not applicable to subsequent suit for contribution by
sureties.
Where Record Shows Matter in Question was not passed upon,,
or where it could not have been decided adversely to the party
against -^liom the judgment is claimed to operate, it is not res ad-
judicata.
Approved in Rogers v. Southern etc. Lumber Co. (Tex. Civ.), 51
S. W. 30, following rule; Williams v. Wiley, 96 Tex. 152, 71 S. W. 14,
judgment of reversal on appeal .by defendants only, against whom
recovery had joining as appellees codefendants and plaintiffs, is no
bar to writ of error by plaintiffs against defendants recovering
below; Linberg v. Finks, 7 Tex. Civ. 397, 25 S. W. 791, applying
principle; Ward v. Green (Tex. Civ.), 28 S. W. 575, holding judg-
ment not adjudication of defendant's liability to plaintiff no bar
to suit thereon; Rackley v. Fowlkes (Tex. Civ.), 36 S. W. 75, holding
issue not adjudicated where no testimony offered in support thereof,
and not mentioned in judgment; Groesbeck v. Crow, 91 Tex. 77, 40
S. W. 1029, applying principle to suit to set aside deed for fraud
under Revised Statutes, 3369; Pishaway v. Runnels, 71 Tex. 354,
9 S. W. 261, holding judgment for damages containing statement
that it is not based on value of property, not bar to action for re-
covery of property; James v. James, 81 Tex. 381, 16 S. W. 1089,
holding judgment in suit where answer in will contest set up agree-
ment as to division of property does establish validity of agreement;
Rackley v. Fowlkes, 89 Tex. 616, 36 S. W. 78, holding exclusion of
offer of evidence, as coming too late, does not show court did not
pass on issue.
Administrator'B Conveyance of Intestate's land in payment of at-
torney's fees is not validated by approval of probate court.
Approved in Barrett v. Henrietta Nat. Bank, 78 Tex. 226, 14 S. W.
569, holding receiver cannot give claim to attorney for collection on
contingency; Rick el, Crocker & Christy v. Chicago etc. Ry. Co., 112
Iowa, 153, 83 N. W. 959, contract between administrator and attor-
ney under which he was to sue for damages for decedent's wrong-
ful death for fee of half of recovery is not binding on estate;
Bryan v. Craig, 64 Ark. 443, 44 S. W. 350, holding administrator
cannot bind estate by agreement to give attorney part of estate aa
fee; Estate of Page, 57 Cal. 241, holding administrator has no power
to agree to give attorney part of estate as fee. See note, 52 Am.
St. Rep. 122.
Title Acquired After Institation of Salt is insufficient to 8upi>ort
trespass to try title.
Approved in Collins v. Ballow, 72 Tex. 332, 10 S. W. 249, follow-
ing rule.
771 NOTES ON TEXAS REPORTS. 48 Tex. 510-530
Joint Title in Trespass to Try Title is unsupported by title in
severalty to individual plaintiffs.
Approved in Benson v. Cahill (Tex. Civ.), 37 S. W. 1091, holding
several defendants, in trespass to try title, claiming improvements
on separate portions of land cannot unite claims for improvements.
Distinguished in Anderson v. Anderson, 95 Tex. 368, 67 S. W. 405,
though several plaintiffs join in trespass to try title, claiming in-
terests in common, one only may recover his separate right.
Miscellaneous.— Newland v. Bendy, 69 Tex. 713, 7 S. W. 500, mis-
cited, to the point that party desiring more specific charge must
request it.
48 Tex. 510-517, 26 Am. Bep. 331, OEB y. SCOTT.
Paschal's Digest, 6826, removing disabilities of parties as wit-
nesses, does not render husband or wife competent witnesses for or
against each other.
Approved in Conner v. Holland, 2 Posey N. C. 405, and Wilson
T. Green, 1 Tex. Ap. Civ. 41, both holding wife incompetent t»
testify where husband is party.
Distinguished in Stebbins v. Anthony, 5 Colo. 362, holding under
act of February, 1870, husband competent witness in divorce suit.
The Husband or Wife cannot be witnesses for or against each
other.
Approved in Kaufman v. Alexander, 2 Posey U. C. 522, and Hicks
V. Patterson, 1 Tex. Ap. Civ. 149, both following rule; De Garca v.
Galvan, 55 Tex. 57, holding declarations of husband in suit to im-
peach his deed to wife inadmissible; Newman v. Farquhar, 60
Tex. 644, holding declarations of husband, in wife's absence, inad-
missible in suit by wife to set aside his conveyance; State v. Work-
man, 15 S. C. 546, holding, on joint prosecution, wife not competent
witness for other defendant on common defense; Zorn v. Tarver, 57
Tex. 389, arguendo. See notes, 8 Am. St. Bep. 532; 9 Am. St. Rep.
467; 48 Am. St. Rep. 653.
Distinguished in Turnley v. Texas etc. Co., 54 Tex. 453, holding
husband may be compelled to be witness for defendant where he
sues to recover wife's separate property; Cairrell v. Higgs, 1 Posey
TJ. C. 63, holding husband incompetent as subscribing witness to
deed in favor of wife.
48 Tez. 517-^30, WHITHBAD v. KIOEELSON.
Acquisition of Property by Member of Family, after head of fam-
ily parts with it, and its use as homestead, does not exempt it from
•ale.
Questioned in Bybee v. Wadlington, 2 Posey U. C. 467, arguendo.
See notes, 61 Am. Dec. 587; 70 Am. St. Rep. 110.
A Family Consisting of Widower and/ Daughter is dissolved by
marriage of latter, and homestead acquired at dissolution is not
exempt from execution.
Approved in Trammell v. Neal, 1 Posey U. C. 54, holding return
of widowed daughter does not restore her to family.
After Dissolution of Family, a widower cannot exempt property
as homestead by taking up support of persons having no claim on
him.
Approved in MuUins v. Looke, 8 Tex. Civ. 143, 27 S. W. 928, hold-
ing single man and child living with him not a family.
48 Tex. 531-554 NOTES ON TEXAS BEPORTS. 772
Distinguished in Withee v. Brown, 1 Tex. Ap. Civ. 274, holding
defendant to exemption of property acquired while married.
The Indefinite Union of Persons in one household is not a family
under homestead exemption laws.
Approved in Boco v. Green, 50 Tex. 489, 490, holding married
daughter and children living with mother not part of family; Barney
V. Allison, 64 Tex. 700, 702, holding allegation as widow with daugh-
ter and grandchildren living as members of family insufScient; Mun-
zenberger v. Boehme, 2 Posey TJ. C. 390, holding son not head of
family; Phillips v. Price, 12 Tex. Civ. 409, 34 S. W. 784, holding
grandchild, whose parents are. living, not constituent of family;
Goods V. State, 16 Tex. Ap. 415, construing Bevised Statutes, 4583,
relative to sale of estrays.
48 Tez. 531-554, VERAMENDI y. HUT0HIN8.
Husband and Wife have Eqnal Interest in community property,
and it is immaterial in whose name deed thereto is made.
Approved in Pontiac Buggy Co. v. Dupree, 23 Tex. Civ. 301, 56
S. W. 705, husband's creditors cannot subject land title to which is
in wife's name by deed, in absence of evidence disproving recitals
in deed that land paid for with wife's separate money and vesting
title in her as separate estate; Kirk v. Houston etc. Navigation Co.,
49 Tex. 215, holding husband's purchaser, when deed in wife's name,
not put on inquiry as to her claim; McDaniel v. Weiss, 53 Tex. 263,
holding property in wife's name was community and subject to exe-
cution against husband; Wallace v. Campbell, 54 Tex. 89, holding
deed to community property in wife's name does not raise presump-.
tion of trust to detriment of innocent purchaser; Bell v. Schwarz,
56 Tex. 355, holding sale by survivor to support children insufficient;
Wellborn v. Odd Fellows etc. Co., 56 Tex. 504, holding deposit of
money in wife's name does not make it her separate property; Pratt
V. Godwin, 61 Tex. 334, holding mortgage conveying to mortgagor's
wife does not devest mortgagor of title; Edwards v. Brown, 69 Tex.
331, 4 S. W. 380, holding bona fide purchaser from second wife,
taking by devise, has better title than former wife; Stone v. Ellis,
69 Tex. 327, 7 S. W. 352, holding widow cannot convey for herself
and children one-half of community without order of probate court;
Holland v. Seward, 1 Tex. Ap. Civ. 530, holding on husband's death,
his interest in community vests in heirs; Cooke v. Avery, 147 U. S.
395, 13 Sup. Ct. Bep. 348, 37 L. 216, holding personal judgment for
use and occupation cannot be rendered against wife claiming interest
as community in trespass to try title; King v. Holden (Tex. Sup.),
16 S. W. 899, holding property is presumed to be community prop-
erty though deeded to wife, unless deed shows it to be her separ-
ate property; Van Sickle t. Catlett, 75 Tex. 409, 13 S. W. 32,
arguendo. See following notes: 56 Am. Dec. 45; 58 Am. Dec. 112;
60 Am. Dec. 205; 70 Am. Dec. 400; 86 Am. Dec. 637; 86 Am. Dec.
643.
Distinguished in Grigsby v. May, 84 Tex. 252, 19 S. W. 347, hold-
ing patent to heirs gives them right to convey.
After Death of Wife, husband cannot sell wife's interest in com-
munity property except for community debts.
Approved in Ashe v. Yungst, 65 Tex. 636, holding survivor may
sell community for debts without qualifying under statute; Ladd
V. Farrar (Tex. Sup.), 17 S. W. 57, holding surviving wife's sale of
community property for community debt is valid.
773
NOTES ON TEXAS BEP0RT8. 48 Tex. 531-554
TJnaathorized Deed to Commimity Property bj survivor does not
convey title to interest of heirs^ and does not support defense of
limitations.
Approved in Childress v. Grim, 57 Tex. 59, following rule; Saun-
ders V. Silvej, 55 Tex. 48, holding possessor with notice under deed
conveying designated portion cannot plead limitations against un-
divided interest under former deed; Porter v. Chronister, 58 Tex.
55, holding bankrupt sale of father's interests in community does
not affect wife's heirs; Green v. Hugo, 81 Tex. 458, 26 Am. St. Bep.
827, 17 S. W. 80, 13 L. B. A. 657, holding, where link in chain of
title shows lack of power to convey- possession thereunder not color
of title; Cole v. Grigsby (Tex. Civ.), 35 S. W. 685, holding statute
of limitations miavailable to party claiming under heirs of husband
against heirs of wife where land conveyed was community property;
Cole V. Grigsby, 89 Tex. 229, 35 S. W. 793, holding partition and
mesne conveyances do not support statute of limitations; Baldwin
V. Boot, 90 Tex. 554, 40 S. W. 6, holding, after conveyance by owner,
subsequent deed does not support statute of limitations; Texas Land
etc. Co. V. State, 1 Tex. Civ. 620, 23 S. W. 259, holding patent is-
sued without authority insufficient to support plea of .adverse pos-
session; Linberg v. Finks, 7 Tex. Civ. 398, 25 S. W. 792, holding
void sale breaks title required by statute of limitations; Bartell v.
Kelsey (Tex. Civ.), 59 S. W. 633, holding adjudication that party
is sole heir not sufficient color of title for adverse possession against
another heir not party to former suit; League v. Bogan, 59 Tex.
432, and Stipe v. Shirley, 27 Tex. Civ. 99, 64 S. W. 1013, both ar-
guendo. See note, 88 Am. St. Bep. 718.
Distinguished in Grigsby v. May, 84 Tex. 251, 19 S. W. 346, hold-
ing patent to heirs gives them right to convey.
Authority to Sell Commimity Property is presumed where twenty-
five years' possession had under sale and conveyance is of record.
Approved in Box v. Word, 65 Tex. 166, following rule; Stipe v.
Shirley, 33 Tex. Civ. 226, 76 S. W. 309, lapse of thirty-eight years
after sale by husband before claim by children putik burden on them
of showing sale not made to pay community debts; Harrison v.
McMurray, 71 Tex. 129, 8 S. W. 615, Garner v. Lasker, 71 Tex.
435, 9 S. W. 334, and Hensel v. Kegans, 79 Tex. 349, 15 S. W. 276,
all following rule; Spring v. Eisenach, 51 Tex. 435, holding title of
bankrupt sale purchaser, where junior encumbrancer not party to
bankruptcy, insufficient to support limitations; Smith v. Shinn, 58
Tex. 4, holding recitals in bounty warrant raise presumption of
power to convey; Bass v. Sevier, 58 Tex. 569, holding instrument
may be read in evidence as ancient if thirty years old when offered;
Sanger v. Moody, 60 Tex. 99, holding sale by survivor in good faith
to pay community debts protected; Mills v. Herndon, 60 Tex. 357,
holding party claiming under lost deed who has not asserted own-
ership for long period must make clear proof of execution of deed;
Manchaca v. Field, 62 Tex. 140, 141, 142, holding presumption of
good faith in sale of community property arises after forty years;
Harris v. Nations, 79 Tex. 413, 15 S. W. 264, applying principle to
power to make contract for location of land certificate; Brown v.
Elmendorf (Tex. Civ.), 25 S. W. 146, holding power to execute deed
presumed where deed admissible as ancient instrument; Baldwin
V. Boberts, 13 Tex. Civ. 572, 36 S. W. 792, presuming, after fifty
years, that community headright certificate sold to pay community
/
48 Tex. 555-583 NOTES ON TEXAS EEPOBTS. 774
debts; Maxson ▼. JenningB, 19 Tex. Civ. 707, 48 B. W. 785, holding
recital in deed as to heirship coupled with lapse of time raises pre-
sumption of such heirship; Douglass t. Moore, 2 Posey U. C. 263,
holding statute does not run where surviving husband gave deed
without authority.
The Facts Equivalent to a Power of Attorney may be presumed.
Approved in Johnson v. Timmons, 50 Tex. 534, presuming that
power of attorney exists from recital in ancient deed; Batcheller v.
Besancon, 19 Tex. Civ. 142, 47 S. W. 298, transfer of land certificate
written on original certificate and purporting to have been made
sixty-three years prior to trial, and to have been executed by at-
torney in fact, is admissible without proof of power; Williams v.
Hardie (Tex. Civ.), 21 S. W. 269, holding recitals id deed equiva-
lent to power of attorney will be given like effect; McCoy v. Pease,
17 Tex. Civ. 307, 42 S. W. 660, holding recitals of heirship in ancient
deed not evidence of heirship or death of owner as against stranger.
Where Several Tears Elapsed Before CitatlonB Issued to peti-
tion, limitation runs to citations, and is not stopped by filing petition.
Approved in Wood v. Mistretta, 20 Tex. Civ. 243, 49 S. W. 240,
following rule; Jones v. Andrews, 72 Tex. 14, 9 S. W. 172, holding
second petition in trespass to try title not too late though citation
not issued until lapse of year; Bicker v. Shoemaker, 81 Tex. 28, 16
S. W. 647, holding physical disability of plaintiff does not excuse
failure to sue within time.
48 Tex. 655-661, THOMPSON ▼. SWEABENGIN.
Where Original Petition on Bejected Account contained value of
items in currency, amendment setting out same items with values
in gold or currency, as contracted, is not new cause of action and
need not be presented to administrator.
Approved in Millington v. Tex. etc. By., 2 Tex. Ap. Civ. 149, hold-
ing amended petition not setting up new cause of action not affected
by limitations. See note, 65 Am. Dec. 145.
Where Petition Alleges Account Made With A and B, doing busi-
ness as X, and amendment alleges same account was made with A,
B, and C, doing business as X, there is no new cause of action.
Approved in Babb v. Bogers, 67 Tex. 339, 3 S. W. 305, holding
amendment, "A guardian of B," is the same as "B, by his guardian
A"; Missouri Pac. By. v. Smith (Tex. Sup.), 16 S. W. 804, holding
amendment correcting misdescription, anticipating objection for vari-
ance between petition and proof, states no new cause of action;
Texas etc. By. v. Johnson (Tex. Civ.), 34 S. W. 188, holding amend-
ment supplying material allegation of petition dates from filing of
petition, from which date statute is suspended.
48 Tex. 561-566, TBEVINO v. STIIJ.MAN.
On Injunction to Bestrain Execution on dormant judgment same
may be revived when defendant in injunction prays for such action
and no reason is shown against it.
See note, 30 L. B. A. 143.
Execution on Dormant Judgment may be enjoined where prejudice
is shown.
See note, 30 L. B. A. 142.
48 Tex. 567-583, ANDBEWS ▼. SPEAB.
Under Constitution of Bepublic a conveyance to an alien was only
voidable at suit of republic
775 NOTES ON TEXAS REPORTS. 48 Tex. 583-599
Approved in Zundell v. Gess (Tex. Sup.), 9 S. W. 880, and Williams
▼. Bennett, 1 Tex. Civ. 506, 20 S. W. 153, both following rule; Baker
T. Westcott, 73 Tex. 134, 11 S. W. 159, holding, on admission of
Texas, title of citizen of United States indefeasible; Hanrick v.
Patrick, 119 U. S. 169, 7 Sup. Ct. Rep. 153, 30 L. 403, holding, after
passage of naturalization act of 1870, titles of British aliens inde-
feasible; McCown V. Terrell (Tex. Civ.), 40 S. W. 58, holding mere
knowledge of adverse claim not conclusive against good faith of
person making improvements; Airhart v. Massien, 98 U. S. 497, 25
L. 214, holding secession of Texas from Mexico did not devest Mexi-
can citizens' title. See note, 31 L. R. A. 104, 179.
In 1852 Lands of Aliens did not escheat to state, but descended
to heirs, subject to escheat hj state if heirs were aliens.
Approved in Hill v. Spear, 48 Tex. 584, and Hanrick v. Hanrick,
54 Tex. 113, both following rule; Ortiz v. De Benavides, 61 Tex. 63,
holding alien inheriting from alien may sue to recover lands inher-
ited. See note, 31 L. R. A. 105, 177.
Eleven Tears' Besidence and Ownership of Property prior to ac-
ceptance of constitution hy Congress raises a presumption of nat-
uralization.
Approved in Airhart v. Massien, 98 U. S. 499, 25 L. 216, holding
secession of Texas from Mexico did not devest Mexican citizens'
title; Kircher v. Murray, 54 Fed. 621, arguendo.
48 Tex. 583-585, HILL ▼. SPEAB.
Though Purchaser of Land had knowledge that vendor held under
defectively acknowledged deed, it is error to exclude evidence of
value of improvements.
Approved in Johnson v. Bryan, 62 Tex. 627, Schleicher ▼. Oatlin,
85 Tex. 275, 20 S. W. 123, and Van Zandt v. Brantley, 16 Tex. Civ.
424, 425, 426, 42 S. W. 619, 620, all following rule; French v. Grenet,
57 Tex. 278, holding purchaser at void execution sale entitled to
improvements made before eviction; Thompson v. Comstock, 59 Tex.
320, holding general information suggestion of improvements under
possession in good faith insufficient; Cole v. Bammel, 62 Tex. 115,
117, purchaser for less sum than mentioned in deed without knowl-
edge of vendor's wife, not purchaser in good faith; House v. Stone,
64 Tex. 683, 685, holding party not rigidly responsible for innocent
errors as to validity of superior adverse title; Anderson v. Lock-
hart, 2 Posey U. C. 72, holding holder under Bale of land made within
twelve months of grant of administrator may claim improvements;
Club Land etc. Go. v. Dallas Co., 26 Tex. Civ. 455, 64 S. W. 876,
arguendo.
48 Tex. 585-599, KENDALL v. MATHEB.
Judgments of the Supreme Court are binding and conclusive on
the district court in the cases in which they are pronounced.
Approved in Williamson v. Wright, 1 Posey U. C. 718, holding
judgment erroneous for want of issues on pleadings not void, but
may be corrected on appeal.
Where the Supreme Court Holds Judgment of district court not
to be a nullity, latter court is concluded thereby.
Approved in Lowell v. Ball, 58 Tex. 566, holding no appeal lies
from district court judgment rendeied according to mandate of su-
preme court; Moore v. Britton, 15 Tex. Civ. 240, 38 S. W. 530, hold-
48 Tex. 601-634 NOTES ON TEXAS EEPOBTS. 776
ing where appropriate relief granted on petition withont prajer,
judgment not subject to collateral attack. See note, 34 L. B. A. 329.
48 Tex. 601-602, McMANUS ▼. SCOTT.
A Loan of Confederate Money is sufficient consideration for a note.
Approved in Lewis y. Alexander, 51 Tex. 590, arguendo. See notes,
31 L. E. A. 759; 30 L. B. A. 702.
48 Tex. 602-616, TEXAS LAND CO. ▼. WILLIAMS.
Rules of Court are designed to establish connected system of ju-
dicial procedure.
Approved in Vaughn v. G. C. & S. T. By., 3 Tex. Ap. Civ. 279, and
Cage V. Tucker, 25 Tex. Civ. 50, 60 S. W. 580, construing rules rela-
tive to specification of assignments of error in briefs.
48 Tex. 615-619, HALEY ▼. DAVIDSON.
Under the New Bules the Brief is a mere statement of points and
authorities, without argument or reasons.
Approved in Vaughn v. G. C. Sa S. T. By., 3 Tex. Ap. Civ. 279,
holding only propositions relating to assignments of error should
be contained in briefs.
Assignments of Error must Bef er to and Show particular point pre-
sented and each must present single point.
Approved in Logan v. Lennix, 40 Tex. Civ. 66, 88 S. W. 367, as-
signments of error that court erred in refusing to allow plaintiff to
take nonsuit and in giving plaintiff a nonsuit and then entering
judgment against plaintiff, are too general.
48 Tex. 619-622, LOONET ▼. ADAMSON.
Absence of Certificate of Privy Acknowledgment to married
woman's deed cannot be supplied by parol evidence.
Approved in Hurst v. Finley, 22 Tex. Civ. 608, 55 S. W. 389, and
Miller v. Texas etc. By., 132 U. S. 690, 10 Sup. Ct. Bep. 215, 33 L.
501, both following rule; Stone v. Sledge (Tex. Civ.), 24 S. W. 698,
holding deed not vitalized where by wife's acknowledgment show-
ing that she knowingly and voluntarily executed it. See note, 52
Am. Dec. 520.
Distinguished in Johnson v. Taylor, 60 Tex. 364, upholding suit
to correct defective certificate of acknowledgment to married woman's
deed.
Married Woman's Deed is Invalid without a certificate of privy
acknowledgment.
Approved in Kincaid v. Jones, 2 Posey XT. C. 534, following rule;
Stone V. Sledge (Tex. Civ.), 24 S. W. 699, holding married woman
not estopped by defectively acknowledged deed from asserting claim
to property; McFalls v. Brown (Tex. Civ.), 36 S. W. 1110, holding
wife's acknowledgment to deed being defective, she may recover
homestead without refunding consideration unless applied to her use
or benefit; Garcia v. Dig, 14 Tex. Civ. 486, 37 S. W. 471, holding
defective acknowledgment of joint deed by married woman does not
affect rights of other party.
48 Tex. 622>634, HOME INS. ETC. CO. ▼. LEWIS.
Where Agent Makes Mistake in Description of Property in ap-
plication signed by applicant with warranty as to correctneaSi com-
pany estopped from defending on warranty.
777 NOTES ON TEXAS REPORTS. 48 Tex. 634-642
Approved in Phoenix Assur. Co. v. Coffman, 10 Tex. Civ. 636, 32
S. W. 813, holding, where application states that watch-clock will
be kept, and agent knows there is none, insured has reasonable time
to procure one; Continental Ins. Co. v. Pearce, 39 Kan. 404, 7 Am.
St. Rep. 563, 18 Pac. 295, holding company estopped by aet of agent
writing false application when he gets true statement from insured.
See notes, 107 Am. St. Rep. 110; 16 L. R. A. (n. ».) 1240, 1262.
Distinguished in Aetna Ins. Co. v. Brannon, 99 Tex. 396, 89 S. W.
1059, 2 L. R. A. (n. s.) ^48, policy insuring property contained in
described building, but known to all parties to be in another place,
does not cover loss by burning of building where property situated.
48 Tex. 634-642, BALL ▼. HILL.
Wliilst a Note is not Barred, its lien is not waived by taking
judgment on the note alone.
Approved in Hale v. Baker, 60 Tex. 219, holding that though pur-
chase money notes barred, vendee cannot get absolute title till money
paid; Slaughter v. Owens, 60 Tex. 671, holding judgment on pur-
chase money note preserves vendor's lien from limitations; Kempner
V. Conner, 73 Tex. 202, 11 S. W. 196, holding deed of trust to secure
separate demands not a merger; Marshall v. Marshall (Tex. Civ.),
42 S. W. 354, holding vendor's lien is not lost by suit on note alone
without setting up lien. See note, 76 Am. Dec. 76.
Distinguished in Bond v. Carter (Tex. Civ.), 73 S. W. 45, in suit
by landlord against tenant for advances where no seizure made on
distress warrant issued and judgment merely personal, failure to
foreclose landlord's lien was waiver thereof.
Obtaining Judgment on Vendor's Lien note ia not of itself waiver
of vendor's lien.
Approved in Darrow v. Summerhill, 24 Tex. Civ. 217, 58 S. W. 163,
and Nutter v. Fouch, 86 Ind. 455, both following rule; City of
Houston V. Walsh, 27 Tex. Civ. 126, 66 S. W. 109, judgment in favor
of taxpayer, setting aside tax sale to city, where no recovery asked
for value of part sold by city to innocent purchaser, is no bar to
recovery of such value from city.
Vendor's Lien is not Waived by failure .to set it up in affidavit
authenticating claim against an estate.
Approved in Southerland v. Elmendorf, 24 Tex. Civ. 139, 57 S. W.
891| holding filing claim against estate does not waive mortgage lien.
NOTES
ONTHB
TEXAS KEPORTS
GASES IN 49 TEXAS.
49 Tex. 1-4, PITSOHKI ▼. AKDEBSOK.
Wbere Vendor Mmde Absolute Deed for propertj, reciting consid-
eration was fully paid, he cannot enforce his lien for balance of
unpaid purchase money where his debt is not in writing, and is
barred by statute.
ApproTed in Arledge t. Hail, 54 Tex. 402, holding purchasers under
sheriff's deed could plead limitations to suit on notes barred by
limitation; Riggs ▼. Hanrick, 59 Tex. 573, holding Tender could not
recover land in a suit on promissory notes for balance of purchase
price which retained no lien, and where notes were barred by limita-
tions; Hale y. Baker, 60 Tex. 219, holding yendor can only assert his
title where evidence of balance of purchase money is barred by
statute; Abernethy v. Bass, 9 Tex. Civ. 243, 29 8. W. 399, vendor
retaining lien for purchase price has superior title until purchase
•price is paid; Johnson v. Dyer, 19 Tex. Civ. 610, 47 8. W. 731,
purchaser of land subject to lien expressed in notes barred by statute
takes title free from lien.
In This Oase fhe Agreement to Pay the balance of the purchase
money was not evidenced in writing, and was not passed upon by
court.
Approved in Henry v. Roe, 83 Tex. 449, 18 8. W. 808, statute of
limitation begins to run from date of note payable on demand.
"Where Balance of Porchase Money was not evidenced in writing,
and was payable on demand in course of few months, limitation
would run from date of sale.
Approved in Cassiano v. Galveston etc. By. Co. (Tex. Civ.), 82
8. W. 807, railroad ticket making no provision as to time of use is
subject to limitations which run from date of issaance; Watson v.
Baker, 71 Tex. 751, 9 8. W. 870, holding, where purchaser agreed to
pay balance of purchase money, not necessary to have agreement in
writing. See notes, 62 Am. Dec. 512; 76 Am. Dec. 76.
49 Tex. 4-16, TEXAS BANEINa ETC. 00. ▼. STONE.
Where There are Other Words in a Policy of insurance to identify
a building containing insured property, the term "occupied as a
storehouse" is a warranty.
(779)
49 Tex. 16-26 NOTES ON TEXAS EEPORTS. 780
Approved in Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co., 8
Tex. Civ. 237, 28 S. W. 1031, holding clause "subject to iron-safe
clause" is a warranty; Aiple ▼. Boston Ins. Co., 92 Minn. 340, 100
N. W. 9, where policy insured building "occupied as dwelling" and
building was unoccupied at issuance of policy and remained so until
burned, insurer is not liable; Baker t. German Fire Ins. Co., 124 Ind.
493, 24 N. E. 1042, holding clause "occupied as a hotel, etc.," suf-
ficient to constitute an express warranty; Liverpool etc. Ins. Co. v.
Colgin (Tex. Civ.), 34 S. W. 292, holding house occupied by insured,
where a small room was occupied by milliner employed' by insured,
rent free, for convenience of insured's customers.
Distinguished in Aetna Ins. Co. y. Brannon, 99 Tex. 396, 89 S. W.
1059, 2 L. B. A. (n. 8.) 548, fire policy guaranteeing indemnity for
loss of property contained in described building, it being known to
all to be in another building, does not cover loss by burning of build-
ing where it was situated; Sun Ins. Co. v. Texarkana Foundry etc.
Co., 3 Tex. Ap. Civ. 389, clause that building is to be occupied as
foundry not a warranty.
Where Agent of Insurer Improperly Incorporated a Warranty in
the policy, such facts should be pleaded to estop insurer from claim-
ing immunity from liability by reason of breach of warranty.
Approved in Tres Palacios Bice etc. Co. ▼. Eidman, 41 Tex. Civ.
546, 93 S. W. 700, estoppel of principal to deny agent's want of
authority must be pleaded; Texas Fire Ins. Co. v. Knights of Tabor
Lodge, 32 Tex. Civ. 331, 74 S. W. 811, plea that forfeiture of insur-
ance policy by nonpayment of premium note waived by collecting note
after forfeiture did not raise question of effect of promise to pay
loss if insured paid note; Texas etc. Ins. Co. ▼. Davidge, 51 Tex.
250, holding knowledge of agenl; of assured's habits should be pleaded
to defense of misrepresentation; Texas etc. Ins. Co. ▼. Hutchins, 53
Tex. 6S, holding replication which was uncertain and defective in
averments did not state facts sufficient to constitute a waiver; Har-
vey v. Cummings, 68 Tex. 607, 5 S. W. 517, coverture should be
pleaded in order to entitle party to benefit of proof; East Texas etc.
Ins. Co. V. Brown, 82 Tex. 636, 18 8. W. 715, plaintiflf should plead
making of application and failure of answers to avail himself of
waiver; Howard v. Metcalf (Tex. Civ.), 26 S. W. 450, estoppel is not
available as defense unless pleaded; Mutual etc. Ins. Co. v. Collin Co.
Nat. Bk., 17 Tex. Civ. 479, 43 S. W. 832, facts constituting estoppel
must be pleaded; Love v. Bempe (Tex. Civ.), 44 S. W. 681, evidence
showing waiver of stipulations in building contract is admissible,
unless waiver is pleaded; Moore v. Yogel, 22 Tex. Civ. 239, 54 S. W.
1063, holding defendants must plead superior title to be available
to them as an affirmative defense; Merchants' Ins. Co. v. Dwyer, 1
Posey U. C. 449, applying rule where petition did not aver waiver of
forfeiture of policy.
Parol Evidence is Admissible to show application for insurance
signed in blank at instance of agent who was to make survey of
property and fill up application and issue policy as existing facts
justified.
See note, 16 L. B. A. (n. s.) 1197.
49 Tex. 16-26, COFFEE ▼. BALL.
Where Suit was Brought Against Bankrupt before he filed his
petition in bankruptcy, the state court will take no notice of the
781 NOTES ON TEXAS EEPOBTS. 49 Tex. 26-49
bankrnptej proceedings, unless properly presented to act upon it
judicially.
Approved in Bassett ▼. Proetzel, 53 Tex. 580, enforcement of judg'
ment by execution from court giving judgment does not interfere
with bankrupt court in administering bankrupt's estate; Miller v.
Clements, 54 Tex. 354, discharged bankrupt cannot avail himself of
his discharge, unless he pleads it; Easley v. Bledsoe, 59 Tex. 489,
holding bankrupt discharged after judgment could enjoin and stay
further proceedings upon the judgment; Levyson v. Harbert, 3 Tex.
Ap. Civ. 261, applying rule where defendant did not interpose his dis-
charge when mandate was filed.
49 Tex. 26-31, FBAZEB ▼. THATCHES.
Wliere Sister Obtained a Conveyance from her brother, although
she knew he was insolvent, she would have preference over other
creditors if she was not within prohibitions of bankrupt law.
Approved in Iglehart v. Willis, 58 Tex. 310, holding creditors
obtaining a deed in good faith obtained no preference over other
creditors; Wallace v. Lewis, 60 Tex. 249, holding assignee had no
longer any right to land assigned, where object of assignment was
accomplished; Edwards v. Dickson, 66 Tex. 614, 2 S. W. 719, hold-
ing sheriff liabFe when he levied upon goods sold by judgment
debtor to one of his creditors; Biocchi v. Casey -Swasey Co., 91 Tex.
268, 66 Am. St. Bep. 885, 42 S. W. 967, holding a conveyance of
property by debtor in compliance with an agreement is valid; John
B. Hood Camp v. De Cordova, 92 Tex. 206, 47 S. W. 524, purchaser
at execution .sale acquires no title where property is subject to a
trust; Schneider v. Bullard, 1 Tex. Ap. Civ. 677, holding creditor may
accept conveyance from debtor knowing him to be insolvent. See
notes, 82 Am. Dec. 612; 93 Am. Dec. 346; 36 L. B. A. 339, 345; 31
L. B. A. 616, 620.
Judgment Lien is Subject to Every Equity against land in hands
of judgment debtor at time of rendition of judgment.
Approved in John B. Hood Camp v. De Cordova (Tex. Sup.), 47 S.
W. 524, holding execution purchaser with knowledge of trust charac-
ter of defendant's title takes subject thereto. See note, 38 L. B. A.
249.
49 Tex. Sl-49, SO Am. Bep. 98, HOUSTON ETC. B. B. v. MOOBE.
Where Suit for Damages is Brought Under the Statute authorizing
heirs of deceased person to sue for damages, the petition must show
all amongst whom the damages are to be divided.
Approved in Galveston etc. B. B. v. Le Gierse, 51 Tex. 199, hold-
ing wife did not represent minor children when she sued as surviving
wife; Dallas etc. B. B. v. Spiker, 59 Tex. 437, holding mother should
have been joined with wife as a beneficiary entitled to damages;
East Line etc. By. Co. v. Culberson, 68 Tex. 666, 5 S. W. 821, holding
verdict for benefit of three, where there are four, beneficiaries cannot
stand; Missouri Pacific By. v. Henry, 75 Tex. 223, 12 S. W. 829, hold-
ing demurrer for nonjoinder of parties was properly overruled when
suit was brought by mother and father had sustained no pecuniary
loss; Texas etc. By. v. Hudman, 8 Tex. Civ. 314, 28 S. W. 390, hold-
ing no error where jury failed to state how much each child was
entitled to, though all beneficiaries were parties to suit. See notes,
34 L. B. A. 796, 797; 2 L. B. A. 520.
49 Tex. 31-49 NOTES ON TEXAS REPORTS. 782
Wliere Baflway Company Is Oommon Carrier, it haa right to make
reasonable regnlations for conducting its business, and parties dealing
with it must conform to same.
Approved in Hobbs v. Texas etc. Ry., 49 Ark. 360, 5 S. W. 587,
holding lawful to eject passenger from freight train, where he enters
train without consent of conductor or agent of company.
"Wliere Party Forces Himself into a Fr^gbt Train against regula-
tion of company that freight and passengers will be carried on separ-
ate trains, he cannot maintain action for damages against company.
Approved in Houston etc. Ry. Co. ▼. Stell, 28 Tex. Civ. 283, 67 8.
W. 538, one knowing that he could not ride a freight train without
agent's permit and that agent had no authority to say he could get
it from conductor, cannot recover for ejection by conductor because
he had no permit; Crawleigh v. Galveston etc. Ry. Co., 28 Tex. Civ.
263, 67 S. W. 142, holding railroad not liable to trespasser on train
for injuries caused by negligent collision; Gulf etc. Ry. v. Campbell,
76 Tex. 177, 13 8. W. 20, holding person who entered a car with con-
sent of conductor, though informed that it was against the rules of
company, not a passenger; Texas etc. Ry. v. Black, 87 Tex. 161, 162,
27 S. W. 119, holding a boy riding on freight train against rules of
company not entitled to rights of passenger; Texas etc. Ry. v. Boyd,
6 Tex. Civ. 212, 24 S. W. 1089, holding plahitifT not entitled to dam-
ages when he assumed a hazardous position; Texas etc. Ry. v. Hap-
den, 6 Tex. Civ. 750, 26 S. W. 333, holding passenger not entitled to
damages when riding on freight train with consent of conductor,
though contrary to rules of company; Railroad v. Hailey, 94 Tenn.
385, 29 S. W. 368, 27 L. R. A. 549, holding passenger is not entitled
to damages when he entered train with consent of conductor, though
informed that it was against rules tf company; Berry v. Missouri
Pac. Ry., 124 Mo. 250, 251, 331, 25 8. W. 234, 259, holding party
knowing conductor is violating orders in permitting him to ride can-
not be considered as a passenger; Atchison etc. R. R. v. Reisman, 60
Fed. 378, 23 L. R. A. 768, holding employee cannot recover damages
for disobeying rule of company; Robostelli v. New York etc. R. R.,
33 Fed. 798, allowing damages where passenger rode on commutation
ticket of another, no fraud; Atchison etc. Ry. v. Mendoza (Tex.
Civ.), 60 S. W. 32&, holding no damages can be recovered where
injured party rode on engine, contrary to rule.
Where Deceased was Biding on Freight Train with knowledge and
consent of conductor, though against rules of company, he cannot
recover for damages.
Approved in St. Louis etc. Ry. Co. v. Mayfield, 35 Tex. Civ. 83,
79 S. W. 366, following rule; Smith v. Louisville etc. R. R., 124 Ind.
397, 24 N. E. 754, holding going aboard of freight train at invitation
of conductor did not constitute him a passenger; Prince v. I. & G. N.
Ry., 64 Tex. 145, 146, where plaintiff waa injured on hand-car, at in-
vitation of company's agents, and not prohibited by company rules;
Florida etc. Ry. v. Hirst, 30 Fla. 15, 18, 26, 32, 32 Am. St. Rep. 20, 21,
26, 30, 11 So. 507, 508, 510, 511, 16 L. R. A. 631, where injured pas-
senger was riding in express-car contrary to rule of company, though
with agent's knowledge. See following valuable notes: 35 Am. Rep.
458; 40 Am. Rep. 226; 1 Am. St. Rep. 712; 2 Am. St. Rep. 40; 41 Am.
Dec. 471, 478; 48 Am. I>ec. 636; 82 Am. Dec. 293; 2 L. R. A. 167.
Distinguished in Spence v. Chicago etc. Ry. Co., 117 Iowa, 7, 90
N. W. 348, where one who had ridden thereon before as passenger
783 NOTES ON TEXAS BEPOETS. 49 Tex. 49-61
on conBtmetion train boarded such train with ticket contrary to
rule of which he had no knowledge, and conductor accepted ticket,
he could recover for injuries caused by railroad's negligence.
49 Tex. 49-61, SOHMEI.TZ ▼. OABET.
Vendee Busring After Judgment Lien Attached has the right to be
heard in proceeding to foreclose lien.
Approved in Bobertson v. Goates, 65 Tex. 41, holding vendors of
defendant claiming subject to lien must be made parties to suit to
revive lien; Poland v. Davenport, 50 Tex. 279, purchaser of lands
subject to lien unaffected by proceedings to enforce; Spring v.
Eisenach, 51 Tex. 435, holder of sheriff's deed not affected by subse-
quent sale to enforce lien by order of bankrupt court; Biggs v.
Hanrick, 59 Tex. 573, holding title of grantee good against former
creditor of grantor; Black v. Black, 62 Tex. 298, holding purchasers
of land subject to vendor's lien are not bound by judgment foreclos-
ing lien unless made parties thereto; Mayers v. Paxton, 78 Tex. 199,
14 S. W. 569, holding purchaser of homestead is not affected by sale
of probate court; Boone v. Miller, 86 Tex. 79, 23 S. W. 575, holding
purchasers at sheriff's sale of property subject to trust are entitled
to property unless deed of trust had been foreclosed; Ogden v. Bosse,
86 Tex. 343, 24 S. W. 801, holding purchaser at sale under valid judg-
ment entitled to property as against mortgagee - out of possession;
Hanrick v. Qurley (Tex. Civ.), 48 S. W. 998, holding probate court
without authority to foreclose mortgage on land sold before death of
mortgagor; Cassidy v. Scottish- American Mtg. Co., 27 Tex. Civ. 225,
64 S. W. 1031, where administratrix was vendee of property subject
to lien, she should be sued on her individual capacity in foreclosing
lien.
Where Vendee was In Possession Under a Recorded Deed of prop-
erty subject to judgment lien, the probate court has no jurisdiction
to enforce the judgment lien.
Approved in Bradford v. Knowles, 86 Tex. 508, 25 S. W. 1118, hold-
ing probate court had no jurisdiction over land conveyed by de-
cedent; Hanrick v. Gurley, 93 Tex. 472, 54 S. W. 353, holding probate
court could net foreclose equity of redemption where decedent had
conveyed title before death.
Where Conveyance of Commnnity Property by wife is disputed as
separate property of husband, the separate means of husband invested
should be traced connectedly and plainly.
Approved in York v. Hilger (Tex. Civ.), 84 8. W. 1119, following
rule; Pratt v. Godwin, 61 Tex. 334, mortgagee's conveyance to mort-
gagor's wife does not devest the community interest; Dimmick v.
Dimmick, 95 Cal. 328, 30 Pac. 548, separate property of wife must
be clearly traced and located; King v. Gill eland, 60 Tex. 274, plain-
tiffs must trace separate means of wife into purchase of land. See
notes, 56 Am. Dec. 45; 86 Am. Dec. 641.
Judgment Enforcing Vendor's Lien can be satisfied against land sold
by vendee before lien was discharged, and where vendee has become
bankrupt.
Approved in Bassett v. Proetzel, 53 Tex. 580, enforcement of judg'
ment lien by court rendering judgment does not interfere with juris-
diction of bankrupt court.
Where Deed Shows on Its Face promissory notes were given as
consideration for same, a subsequent purchaser from vendee takes
same subject to notice of vendor's lien.
49 Tex. 70-88 NOTES ON TEXAS REPORTS. 784
Approved in Bryan ▼. Crump, 55 Tex. 12, purchaser chargeable
with knowledge of recitals of his deed and location of his land is
not innocent purchaser; Cook v. Caswell, 81 Tex. 683, 17 S. W. 387,
holding purchaser of land was charged with notice when he inspected
.records; Graham v. Hawkins, 1 Posej XT. C. 519, grantee had notice
where recitals in deed retaining lien were obscure; Elmendorf v.
Beirne, 4 Tex. Civ. 190, 23 S. W. 316, recitals in deed that purchase
money was not paid, sufficient notice to subsequent purchaser; Jack-
son V. Finlay (Tex. Civ.), 40 S. W. 428, holding only judgment on
merits will preclude second suit on same cause of action.
In Suit on Notes Given for Balance of Parchase Money defendants
cannot allege plaintiff is not owner of notes when they are payable
to bearer.
Approved in Brown ▼. Chenoworth, 51 Tex. 477, sustaining de-
murrer to answer alleging notes sued on belonged to bankrupt's
assignee; Matlock ▼. Glover, 63 Tex. 235, holding defendants could
not object to suit on note by holders of same, or real owner. See
note, 66 L. B. A. 519.
49 Tex. 70-73, HALIi ▼. O'UALLEY.
That Sheriff Supposed He had Copies of Writ of Arrest is no de-
fense in action against sheriff for false imprisonment.
Approved in Cabell ▼. Arnold (Tex. Civ.), 22 S. W. 63, holding
arrest is illegal if officer at time of arrest has not warrant with him.
See note, 51 L. R. A. 213.
In Suit for Damages for False Imprisonment, exemplary damages
may be awarded.
Approved in Zelifl v. Jennings, 61 Tex. 471, exemplary damages
may be recovered even though party seeking same was punished
criminally. See note, 54 Am. Dec. 270.
49 Tex. 74-^, PBIOE ▼. LAX7VE.
Where Exception to a Ruling Is Necessary to assign error upon
it, the exception must be taken at the time ruling is made.
Approved in Waco Ice etc. Co. v. Wiggins (Tex. Civ.), 32 S. W.
59, reaffirming rule; Marshall v. Spillane, 7 Tex. Civ. 534, 27 S. W.
163, bill of exceptions should be taken at term of ruling complained
of.
Where Affldavit for Continuance conforms to statute, refusal to
grant the continuance is error.
Approved in Central etc. R. R. v. Henning, 52 Tex. 475, continu-
ance should be granted where statutory diligence was excused, and
materiality of testimony shown.
Acceptance of a Deed of Trust does not abrogate pre-existing lien
on the property, in part payment of which a note was given.
Approved in Wilcox v. Piret National Bank, 93 Tex. 330, 55 S. W.
319, holddng new note given in renewal of old obligation not sufficient
to relinquish lien of old note.
Officer cannot Arrest Without Warrant unless offense is committed
in his presence.
See note, 51 L. R. A. 206.
49 Tex. 86-88, BIAIB ▼. PARK.
Wliere Supreme Court had jurisdiction, its judgment was final, and
not subject to revision on second appeaL
785 NOTES ON TEXAS REPOBTS. 49 Tex. 88-101
Approved in Lowell v. Ball, 58 Tex. 567, holding conrt of appeals
will not reyiew its own action where judgment was thoroughly con-
flidered.
49 Tex. 88-96, 30 Am. Bep. 101, DE LEON ▼. TBEVINO.
Where Contract is Illegal, it is not illegal for parties to settle
profits and losses resulting from it.
Approved in Lewis v. Alexander, 51 Tex. 590, holding court will
not aid either party in settling proceeds of illegal gains; Pfeuffer
V. Maltby, 54 Tex. 461, 38 Am. Rep. 631, holding party to an illegal
contract is liable in an action to his former partner; Wegner v.
Biering, 65 Tex. 511, holding profits of an illegal proceeding not con-
taminated; Morgan y. Morgan, 1 Tex. Civ. 319, 21 S. W. 156, holding
wife illegally married entitled to one-half of community property of
such marriage; Patty v. City Bank, 15 Tex. Civ. 485, 41 S. W. 177,
profits acquired by partnership existing contrary to law are assets
of firm; Wiggins v. Bisso (Tex. Sup.), 47 S. W. 639, 640, holding
equity will not compel accounting between partners entering into
partnership for unlawful purpose; Overholt v. Burbridge, 28 Utah,
418, 79 Pac. 564, bucket-shop which accepted margin to protect "short"
sale to one who took "long" side and finally paid shop for seller the
profit of deal, cannot, in action by seller for profit, plead illegality of
transaction; Hubbard v. Mulligan, 13 Colo. Ap. 129, 57 Pac. 743,
legitimate agreement will not be set aside though consideration rests
on illegal agreement; Cfrescent Ins. Co. v. Bear, 23 Fla. 54, 11 Am.
St. Bep. 333, 1 So. 319, obligation by a debtor partner to another
to adjust lose of an illegal venture may be enforced; Stewart v.
Miller, 3 Tex. Ap. Civ. 858, note for gambling debt could be collected
where holder of note paid debt. See following notes: 30 Am. Bep.
520; 15 Am. St. Bep. 403; 35 Am. St. Bep. 806; 36 Am. St. Bep. 251;
41 Am. St. Bep. 900; 99 Am. St. Bep. 328; 23 L. B. A. (n. s.) 482.
Distinguished in Crutchfield v. Bambo, 38 Tex. Civ. 582, 583, 86
S. W. 952, where two parties each purchased lottery tickets and agreed
to divide winnings, one cannot recover share in amount won by other's
ticket and which latter collected; Willis v. Weatherford Compress
Co. (Tex. Civ.), 66 S. W. 473, where plaintiff bases right to recover
on contract, void against public policy, by which officer assigns
fees of office, illegality of contract available without pleading it;
Bead v. Smith, 60 Tex. 382, neither party to illegal contract can have
relief when they never made a settlement themselves; Willis v.
Morris, 63 Tex. 466, 51 Am. Bep. 659, holding notes tainted with
fraud cannot be enforced; Beed v. Brewer (Tex. Civ.), 36 S. W. 101,
holding void, contract in consideration of dismissal of action on
notes for furniture furnished for house of prostitution; Wiggins v.
Bisso, 92 Tex. 223, 225, 47 S. W. 639, 640, holding court will not give
relief to parties to an illegal contract.
Criticised in Medearis v. Granberry, 38 Tex. Civ. 191, 84 S. W. 1072,
fact that conveyance made in consideration of grantee's foregoing
prosecution of grantor's son for <rime may be urged as defense by
grantor to action by grantee to recover land, where possession never
surrendered.
49 Tex. 96-101, LUBBOCK ▼. COOK.
Wlien Time is to be Computed from or after certain day for an act
done, day on which act is done is excluded unless different computa-
tion intended.
2 Tex. Notee— 50
49 Tex. 101-125 NOTES ON TEXAS REPORTS. 786
Approved in State v. Vicknair, 118 La. 970, 43 So. 638, adjourn-
ment of court cannot deprive accused of the three days allowed him
for appealing; Smith v. Dickey, 74 Tex. 63, 11 S. W. 1060, holding
day cause of action accrued should not be computed; Hill t. Kerr,
78 Tex. 217, 14 S. W. 567, holding day on which act was passed
should not be computed. See note, 49 L. B. A. 194, 196.
49 Tex. 101-123, aAINBB ▼. COTTON.
Teetimonio, or Second Original, is admissible in evidence when duly
recorded and notice given as required by statute.
Approved in Purcell v. Texas etc. By. (T«x. Civ.), 43 S. W. 836,
reaffirming rule.
Wbere Protect^ is Deposited In Office of county clerk by statute
there is no authority of law to authorize its wilThdrawal.
Approved in Beaumont Pasture Co. v. Preston, 65 Tex. 457, hold-
ing person interested in protocol could not remove same from office of
county clerk.
Wliere Objection was Made to tiie introduction of a bond of title
where subscribing witnesses were dead, the handwriting of officer
making certificate was proved, and bond admitted.
Approved in Cox v. Cock, 59 Tex. 524, holding affidavit of notary
in support of deed sufficiently proved it to admit it as evidence; Beau-
mont Pasture Co. ▼. Preston, 65 Tex. 451, holding instrument may
be admitted if party offering it raises an issue as to its genuineness;
Beaumont Pasture Co. v. Preston, 65 Tex. 454, holding proof of officer
acknowledging transaction as to signatures to instrument sufficient
to admit it; Gamer v. Lasker, 71 Tex. 436, 9 S. W. 335, holding
identification of ancient instrument by subscribing witnesses suffi-
cient to admit it. See note, 35 L. B. A. 326, 334.
Distinguished in Kansas etc. Ins. Co. v. Coalson, 22 Tex. Civ. 68,
54 S. W. 390, holding altered instrument properly excluded when
party offering same does not explain alteration.
Wbere a Bond for Title was Ezecnted before introduction of com-
mon law, it was not a mere equity, but an absolute conveyance.
Approved in Roundtree v. Thompson, 30 Tex. Civ. 597, 71 8. W.
275, instrument in form of bond for title, but reciting that maker
for cash consideration received has sold and conveyed land described
to covenantee, passes legal title; Yeary v. Crenshaw, 30 Tex. Civ. 403,
70 S. W. 582, holding instrument assigning grantor's right to receive
land from government to be conveyance effective on location and
patenting of land and not mere bond for title; Surghenor v. Banger,
133 Fed. 459, construing instrument executed by purchaser of Texas
land concession before selection of land, wliereby he agreed to sell to
one who agreed to perform conditions of grant, as an act of sale;
Owen V. New York etc. Land Co., 11 Tex. Civ. 287, 32 S. W. 190, hold-
ing instrument executed under civil law, and containing words of
bargain and sale, conveys title.
Distinguished in Wilson v. Simpson, 68 Tex. 308, 4 8. W. 840, hold-
ing bond for title is not conveyance where party executing bond had
no land to convey.
49 Tex. 123-125, WALKEB V. LEWIS.
Judgment Is Erroneous when it exceeds amount claimed in petition.
Approved in Cooper v. Conerty, 83 Tex. 136, 18 8. W. 335, holding
judgment defective which contradicts terms and purport of petition.
787 NOTES ON TEXAS EEPOBTS. 49 Tex. 126-143
Wlitre Charter Does not Impose OreAter JMbOitj, stockholder is
liable for the amount of stock that he subscribes.
Approved in Hess v. Trumbo, 27 Ky. Law Rep. 320, 84 8. W. 1154,
ptirchasers of stock appearing to be fully paid up not liable for un-
paid installments thereon, unless they took with notice of unpaid
installments, or to defraud corporation's creditors; Lytle v. Cu-
stead, 4 Tex. Civ. 492, 23 S. W. 452, holditig, in order to hold stock-
holders liable for debts of corporation, allegations should be made
that they are liable under their charter. See notes, 3 Am. St. Bep.
835; 76 Am. St. Bep. 128.
Distinguished in Middlebrook ▼. Zapp, 73 Tex. 31, 10 S. W. 734,
holding damages to community property cannot be recovered by wife
in suit for damages against her separate estate.
A Creditor of a Corporation may reach stock subscriptions.
See note, 47 L. B. A. 254.
49 Ttt. 12&-131, FEBQirSON ▼. HEBBIKO.
Where There is Sale Under Attachment^ no injunction will issue,
where there is statutory remedy to stop sale.
Approved in Chamberlain v. Baker, 28 Tex. Civ. 501, 67 S. W. 534,
refusing to enjoin sale under execution against plaintiff's vendor on
ground that conveyance to him would be in fraud of plaintiff in
execution; Bayloss v. Alston, 1 Tex. Ap. Civ. 579, applying rule
where claimant did not amend his petition; Whitman v. Willis, 51
Tex. 426, holding claimant of property attached should make affidavit
to try title to property. See note, 30 L. B. A. 116, 134.
Distinguished in Whitman v. Willis, 51 Tex. 428, holding no in-
junction will be issued where title to property is not in issue be-
tween original parties to suit; Fox v. Willis, 00 Tex. 378, holding if
vendor attaches goods in transitu, he loses his right to stoppage in
transitu; Lang v. Dougherty, 74 Tex. 229, 12 S. W. 31, holding claim-
ant to property attached is not compelled to adopt statutory reme-
dies; Heath v. First Nat. Bank (Tex. Civ.), 32 S. W. 780, holding
action to remove cloud from title not maintainable by one alleging
perfect legal and equitable title against person attaching it as prop-
erty of another; Sumner v. Crawford (Tex. Civ.), 41 S. W. 825, hold-
ing person entitled to injunction where taking of goods under execu-
tion is trespass and works irreparable injury; Sumner v. Crawford,
91 Tex. 131, 132, 41 S. W. 995, 996, holding trustee of partnership
firm can compel restoration of goods by injunction attached for debts
of individual member of firm; George v. Dyer, 1 Tex. Ap. Civ. 429,
holding mortgagee can apply for writ of injunction to prevent sale.
Where Party Seeking Injunction to Restrain Sale under attachment
was not party to execution, it is error to assess damages against him
in denying motion for injunction.
Approved in Bobertson v. Schneider, 1 Tex. Civ. 409, 20 S. W.
1129, holding no damages will be given in suit to dissolve injunction
where answer does not plead damages. See note, 30 L. B. A. 117.
Distinguished in Attoway v. Still, 2 Posey U. C. 700, holding judg-
ment for ten per cent damages could be rendered against sureties
where plaintiff tried to stop enforcement of judgment. See cross-
reference note in 62 Am. Dee. 524.
49 Tex. 131-143, OABEL ▼. WEISENSEE.
Where Witness was Asked Question seeking to elicit his inference
or conclusion, no error to sustain objection.
49 Tex 143-181 NOTES ON TEXAS EEPOBTa 788
Approved in Kauffman v. Babcock, 67 Tex. 245, 2 S. W. 880, hold-
ing error to admit answer of witness to question which called for
conclusion of witness; Half v. Curtis, 68 Tex. 643, 5 S. W. 453, hold-
ing error to allow witness to answer question determining what acts
in law were fraudulent; Dunn v. Cole, 2 Tex. Ap. Civ. 726, applying
rule where witness was asked if he acted according to malicious
motives.
Holding No Error for Conrt to Charge that no man can. invoke
criminal process to decide civil right.
Approved in Sebastian v. Cheney (Tex. Civ.), 24 S. W. 971, hold-
ing criminal prosecution for purpose of collecting debt is foundation
for action for malicious prosecution; Sebastian v. Cheney, 86 Tex.
500, 25 S. W. 691, holding in suit for malicious prosecution defend-
ant would be liable if there was no cause for prosecution.
Distinguished in Dempsey v. State, 27 Tex. Ap. 272, 11 Am. St.
Bep. 195, 11 S. W. 373, holding in suit for malicious prosecution, de-
fendant was not liable where he had probable cause for prosecution.
See notes, 58 Am. Dec. 93; 26 Am. St. Bep. 150.
49 Tex. 143-161, HABBEBT ▼. NEIUi.
"Wliere There l8 No Express Authority, a factor is controlled by
usage of trade where business is transacted and purchasers are
charged with knowledge of usage.
Approved in Neill v. Billingsley, 49 Tex. 166, holding sale not con-
summated in accordan<>e with custom and usage of exchange gave
no title. See note, 58 Am. Dec. 162.
49 Tex. 161-170, NEIUi ▼. BILLINaSIiEY.
Where Verdict Awarded Execution against mreties on claim bond
in event of failure of claimant to surrender property, held judgment
not warranted by statute.
Approved in Wrought Iron Bange Co. v. Brooker, 2 Tex. Ap. Civ.
178, holding judgment for costs could be rendered against sureties
where claim bond authorized same.
Distinguished in Fort Worth Pub. Co. v. Hitson, 80 Tex. 233, 14
S. W. 848, holding judgment against sureties for costs may be ren-
dered where statute prescribes bond and provides for costs; Howard
V. Parks, 1 Tex. Civ. 606, 21 S. W. 270, holding judgment for costs on
claimant's bond may be rendered under statute.
See note, 58 Am. Dec. 162.
49 Tex. 171-181, HOUSTON ETC. BY. ▼. FOBSYTH.
Motion for New Trial Should be Granted where it is supported
by affidavit of new witness as to facts of his testimony and showing
diligence in preparation of case.
Approved in Missouri Pac. By. v. Walker (Tex. Sup.), 7 S. W.
793, reaffirming rule; Missouri etc. By. Co. v. Clark, 35 Tex. Civ. 190,
79 S. W. 828, where plaintiff recovered, in separate amounts, against
three railroads for injuries to cattle on through ^pment, and after
submission to jury he stated that he had no complaint against two
of roads, new trial should be granted; Gulf etc. By. Co. v. Blancbard
(Tex. Civ.), 73 S. W. 92, holding affidavits on motion for new trial
on ground of newly discovered evidence did not show diligence; Wolf
V. Mahan, 57 Tex. 175, holding new trial should be granted where
appellant's new evidence is material and he is excusable for not
789 NOTES ON TEXAS REPORTS. 49 Tex. 181-190
presenting it before; East Line etc. B. B. v. Boon (Tex. Sup.), 1 S.
W. 633, refusing new trial where newly discovered evidence cumula-
tive; Texas etc. By. v. Barron, 78 Tex. 426, 14 S. W. 699, holding new
trial should be granted where new evidence is material and could not
have been obtained at time of trial; Hilbum y. Harris, 2 Tex. Civ.
399, 21 8. W. 574, holding motion for new trial should be granted if
appellant can produce material newly found evidence, and is not neg-
ligent for not producing it before; Ratto v. St. Paul etc. Ins. Co., 2
Tex. Ap. Civ. Ill, holding new trial will not be granted where evi-
dence is to impeach witness who testified at trial; Standard Life etc.
Ins. Co. V. Aekew, 11 Tex. Civ. 64, 32 S. W. 33, holding new trial
should be granted for newly discovered evidence if appellant was not
negligent; Gulf etc. By. v. Reagan (Tex. Civ.), 34 S. W. 798, refusing
new trial for newly discovered evidence regarding plaintiff's injuries,
other witnesses not so well qualified having testified in regard thereto;
San Antonio Gas Co. v. Singleton, 24 Tex. Civ. 343, 59 S. W. 922,
holding no error to refuse new trial where materiality of newly
discovered evidence was not shown; Phifer v. Mansur etc. Implement
Co., 26 Tex. Civ. 59, 61 S. W. 969, holding motion for new trial prop-
erly denied where new evidence offered ia indefinite; Luke v. El
Paso (Tex. Civ.), 60 S. W. 365, holding no error to refuse new trial
for cumulative testimony.
Distinguished in dissenting opinion in Gulf etc. By. Co. v. Blanchard
(Tex. Civ.), 73 S. W. 95, majority holding affidavit on motion for new
trial on ground of newly discovered evidence did not show diligence;
State V. Zanco, 18 Tex. Civ. 129, 44 S. W. 529, holding no new trial
should *be granted where appellants were negligent in discovering
evidence; White v. State, 10 Tex. Ap. 176, holding court on appeal
may modify ruling where matter is not solely confined to trial court.
Bvldence Is not Omntilatiye when it is of different character and
proves former proposition by new facts, but it is additional evidence
to same point.
Approved in Bridges v. Williams, 28 Tex. Civ. 44, 66 S. W. 485, as
to what is cumulative evidence; Dillingham v. Ellis, 86 Tex. 448, 25
S. W. 619, holding testimony not cumulative where witness would
testify to new facts. See notes, 65 Am. Dec. 131; 14 L. B. A. 611.
AllldavitB Impeaching Credibility of Witness relied on to testify to
newly discovered evidence are admissible.
Approved in San Antonio Gas Co. v. Singleton, 24 Tex. Civ. 344,
59 8. W. 922, following rule.
49 Tez. 181-190, HOUSTON ETC. BY. ▼. DX7NHA1C
Master or Corporatton mast use ordinary care in supplying proper
roadbed and track and keeping it in repair, and is liable for negli-
gence of its agents charged with that duty, irrespective of whether
or not injury is inflicted to fellow-servant.
Approved in Kirby Lumber Co. t. Chambers, 41 Tex. Civ. 642, 95
S. W. 612, holding master liable for death of yard-boss while riding
on foot-board of engine in performance of duty and thrown by board
catching on plank walk while engine passing over defective track;
International etc. By. Co. v. Johnson, 23 Tex. Civ. 186, 55 S. W. 788,
applying rule wliere brakeman killed by misplaced switch; Tabor t.
St. Louis etc. By. Co., 210 Mo. 398, 124 Am. St. Bep. 736, 109 S. W.
768, conductor is not fellow-servant of master mechanic riding on
locomotive to discover and remedy defect in locomotive, but is vice-
49 Tex. 190-202 NOTES ON TEXAS EEPOETS. 790
principal; International etc. R. B. v. Doyle, 49 Tex. 198, holding
duty of master to furnish suitable machinery for servant to work
with; International etc. B. B. y. Kindred, 57 Tex. 502, holding com-
pany responsible where conductor represented its authority and
failed to use ordinary precaution; Texas M. B. Go. y. Whitmore, 58
Tex. 2^9, holding corporation liable where its foreman with its
authority employed an incompetent engineer; Eames v. T. ft N. 0.
By., 63 Tex. 665, holding corporation liable for neglect in respect
to its right of way; Gulf etc. By. v. Silliphant, 79 Tex. 629, 8 S. W.
674, holding corporation liable for weakness of lever which could
be ascertained by its superintendent; Galveston etc. By. v. Parmer,
^ 73 .Tex. 88, 11 S. W. 157, holding corporation liable for neglect in
furnishing safe tracks and machinery; Gulf etc. By. v. Johnson, 1
Tex. Civ. 106, 20 S. W. 1125, holding corporation liable for defect
in its roadbed and track; Missouri etc. By. v. Bond, 2 Tex. Civ.
106, 20 S. W. 930, holding corporation liable for negligence of track
foreman in keeping track in repair; Fort Worth etc. By. v. Wilson,
3 Tex. Civ. 586, 24 S. W. 688, holding corporation liable for notice
of condition of its tracks given to its agent; Gulf etc. By. v^ Boyall,
18 Tex. Civ. 88, 43 S. W. 816, holding corporation liable where it was
chargeable with knowledge of defects in ita cars; St. Louis etc. By.
V. Weaver, 35 Kan. 427, 57 Am. Bep. 179, 11 Pac. 416, holding cor-
poration is liable for the negligence of its roadmaster; G. H. etc. By.
v. Sullivan, 2 Posey U. C. 316, holding corporation liable where it
did not furnish suitable machinery. See note, 41 L. B. A. 50, 76, 83.
Distinguished in Galveston etc. B. B. v. Delahunty, 53 Tex. 212,
holding corporation not liable for defective machinery when' it used
ordinary precaution to see that it was safe; H. & T. C. By. v. Mc-
Namara, 59 Tex. 259, holding corporation liable for latent defects
of track which it could have known by exercising precaution; Gulf
etc. By. V. Johnson, 83 Tex. 633, 19 S. W. 153, holding corporation
is only bound to use such care as ordinary man in discovering de-
fects in its machinery; Galveston etc. By. v. Daniels, 1 Tex. Civ.
700, 20 S. W. 957, holding corporation liable for its bridges although
its agents to whom it delegated this duty were negligent. See notes,
11 Biss. 369; 36 Am. Dec. 2S6; 77 Am. Dec. 219; 75 Am. St. Bep. 628,
629.
49 Tex. 190-202, INTEBNATIONAL ETC. BY. ▼. DOYI£.
Where Corporatioxi Furnished Hand-car having a substituted handle,
* the corporation would not be liable for damages, because danger is
not ordinarily great.
Approved in Galveston etc. B. B. v. Delahunty, 53 Tex. 212, hold-
ing corporation not liable for defective machinery when it used or-
dinary precaution in its selection; Lake Shore etc. By. v. McCormick,
74 Ind. 446, holding corporation not liable where it keeps its machin-
ery in good repair.
Where Servant Accepts Work With Hand-cax having a substituted
handle, he cannot recover damages unless defect is more hazardous
than appeared by ordinary use.
Approved in I. & G. N. B. B. v. Hester, 72 Tex. 44, 11 S. W. 1043,
holding servant cannot recover when he accepts work known to be
dangerous; Bogenschutz v. Smith, 84 Ky. 339, 1 S. W. 580, holding
servant cannot use machinery known to be dangerous at risk of
master*
791 NOTES •ON TEXAS BEPOKTS. 49 Tex. 202-215
Wbere Sexraat Used Gloves to cure defects of substitated handle
on handcar, he should plead direct aTermenta for use of gloves to
recover damages.
Approved in Malm v. Thelin, 47 Neb. 692, 66 N. W. 651, holding
plaintiff must plead circumstances obviating risk assumed in using
dangerous machinery.
Distinguished in Denver etc. B. B. y. Simpson, 16 Colo. 59, 25
Am. St. Bep. 244, 26 Pac. 341, holding corporation liable where ser-
vant used a glove under proper circumstances.
Brnployee Plead That Danger or Defect was known to master and
unknown to himself.
Denied in Adams v. McCormick etc. Mach. Co., 110 Mo. Ap. 368,
86 S. W. 485, fact that plaintiff aware of incompetency of fellow-
servant causing injury and that he notified defendant no bar to
recovery, unless danger so apparent that prudent person would not
continue service.
49 Tez. 202-212, BATTLE ▼. JOHN.
Where Propositioiui Presented by Appellant are conclunons from
law, they should be placed in argument, and not under assignments
of error.
Approved in Cage v. Tucker, 25 Tex. Civ. 50, 60 S. W. 580, apply-
ing rules where assignments of error contain distinct propositions.
Where Husband and Wife axe Ootenante, wife can sue for parti-
tion, in proportion to the ratio which her separate money bore to pur-
chase price, against purchasers at bankrupt sale of husband's in-
terest.
Approved in New York etc. Land Co, v. Hyland, 8 Tex. Civ. 606,
28 8. W. 207, holding purchasers from one tenant in common were not
necessary parties to partition where their sale was ratified by all
the tenants in common.
Distinguished in John v. Battle, 58 Tex. 598, holding purchasers at
sale of bankrupt husband's interest in homestead could not ob-
ject to wife's petition for partition; King v. Gilleland, 60 Tex. 275,
holding surviving wife and children of second marriage had interest
in community property of first marriage, in ratio that father's money
bore to purchase price; Cleveland v. Cole, 65 Tex. 406, holding where
property was purchased partly by separate means of wife and by
other ipeans, wife is only entitled to proportion her separate prop-
erty bore to purchase price. See note, 83 Am. Dec. 486.
49 Tez. 213-215, KIRK ▼. HOUSTON ETC. NAYIQATION CO.
Where Husband Mortgaged Property, wife cannot intervene in
foreclosure proceedings, though property stands in her name, unless
she proves notice.
Approved in French v. Strumberg, 52 Tex. 109, holding inspection
of deed to wife did not constitute notice that land was separate prop-
erty of wife; Wallace v. CampbeU, 54 Tex. 89, applying rule to lien
of creditor on community property; Morrison v. Clark, 55 Tex. 443,
holding deed showing intention that property should be separate
property of wife sufficient notice; Cline v. Upton, 56 Tex. 322, hold-
ing purchaser of community property under execution sale valid
where purchaser had no knowledge whether property was commun-
ity or not; Wellborn v. Odd Fellows etc. Co., 56 Tex. 504, hold-
ing mere deposit of money by husband to credit of wife not sufii-
49 Tex. 216-25G NOTES ON TEXAS EEPOETS. 792
elent to make it a gift; Spencer v. Bosentball, 58 Tex. 6, holding deed
to wife showing on its face that it was her separate property gave
sufficient notice to creditors and purchasers; Kempner v. Comer, 73
Tex. 199, 11 S. W. 194, holding purchaser under execution against hns*
band of property acquired in name of wife during marriage will be
protected; Montgomery v. Noyes, 73 Tex. 209, 11 S. W. 139, holding
deed to wif« reciting sufficient facts that property was her separate
estate is sufficient notice; King y. Holden (Tex. Sup.), 16 S. W. 899,
holding property is presumed community property where deeds to
wife after marriage do not ahow it to be separate estate; Stiles ▼.
JapLet, 84 Tex. 95, 19 S. W. 451, holding property acquired during
marriage, in name of wife, is community, where deed does not re-
cite facts otherwise; Kirby v. Moody, 84 T«x. 203, 19 S. W. 453,
holding purchaser from widow without notice that husband had
more than one-half interest will be protected; McCutchen v. Purin-
ton, 84 Tex. 604, 19 B. W. 711, holding deed to wife reciting considera-
tion was paid out of her separate estate, sufficient notice; Sanburn
V. Schuler, 3 Tex. Civ. 633, 22 S. W. 120, holding purchaser without
notice from widow of community property will be protected; Eil-
gore y. Graves, 2 Tex. Ap. Civ. 359, holding deed to wife not notice
to mortgagor; Linn v. Willis, 1 Posey U. C. 165, holding note trans-
ferred by husband in ordinary business gives no notice that note is
wife's separate property; Hamilton v. Flume, 2 Posey IT. C. 696,
holding mortgagee of community takes title where no notice of sep-
arate property of wife; Van Bnrkleo v. Southwestern Mfg. Co. (Tex.
Civ.), 39 S. W. 1087, holding purchaser of note secured by mortgage
takes free from equities of third persons, of which he had no notice.
See notes, 86 Am. Dec. 638, 643; 96 Am. Dec. 424.
Distinguished in Parker v. Coop^ 60 Tex. 114, holding deed to
wife not showing purchase money waa her separate property not
sufficient to give notice to creditors; Boe v. Dailey, 1 Posey U. C.
251, holding purchaser at sheriff's sale of judgment against husband
has better title than vendee of wife.
49 Tex. 216-219, DANIEIiS ▼. I.A1USNDON.
Where Judgment for Costs is Bendered against plaintiff and sureties
on her injunction bond, the sureties cannot be sureties on appeal
bond.
Approved in Heidenheimer v. Bledsoe, 1 Tex. Ap. Civ. 134, holding
appeal bond signed by surety on claim bond insufficient.
Distinguished in Saylor v. Marx, 56 Tex. 91, holding appeal will not
be dismissed, where mireties on appeal bond were appellant's sureties
on cost bond in lower court; Sampson v. Solinsky, 75 Tex. 664, 665,
13 S. W. 67, holding sureties on cost bill, in lower court, may become
sureties on appeal bond.
That Homestead Oonyeyed in Trust to secure loan at twenty-four
I>er cent and that wife's acknowledgment taken before notary em-
ployed by husband to negotiate loan is not ground for equitable relief.
See note, 95 Am. St. Bep. 942.
49 Tex. 219-236, HUNTEB y. MOBSE.
Where Vendee Made a Deed for one thousand acres, covering un-
divided portion of league of land, it vests in vendee all the league
remaining unsold at date of deed«
793 NOTES ON TEXAS BEPOKTS. 49 Tex. 243-248
Approved in Brozson y. McDongal, 63 Tex. 196, holding decree
which embraces all land between league lines sufficient; Jordan v.
Toung (Tex. Civ.), 56 S. W. 764, holding description as to quantity
must yield to boundaries or other definite description. See notes^ 92
Am. Dec. 122; 94 Am. Dec. 289.
Plaintiff in Trespaas to Try Title may hy amendment set up
different title than that set up in original petition and support it by
any competent testimony.
Approved in Webb v. Frazar (Tex. Civ.), 29 S. W. 666, holding*
parol evidence admissible to explain ambiguity of description arising
from application to land conveyed.
49 Tez. 243-248, aiRABDIN ▼. DEAN.
. Where Beasons Urged to Sustain Issue presented in second case
are not same as in first, plea of res adjudicata could not be urged.
Approved in Walsh v. Ford, 27 Tex. Civ. 579, 66 S. W. 857, follow-
ing rule; Jackson v. Finlay (Tex. CiV.), 40 8. W. 428, holding where
demurrer to petition is sustained, and plaintiff refuses to amend, final
judgment rendered against plaintiff is res adjudicata; Braun v. Wis-
consin Bendering Co., 92 Wis. 251, 66 N. W. 198, holding reasons given
during course of trial and not contained in judgment are not res
judicata.
Where Parties to First Suit are not identically same in second, the
plea of res adjudicata is valid defense when first case was decided on
its merits.
Approved in S'cherff v. Missouri etc. By., 81 Tex. 472, 26 Am. St.
Bep. 829, 17 S. W. 40, holding party bound by judgment when he
refuses to amend his demurrer which has been overruled; Harmon v.
Auditor, 123 111. 133, 5 Am. St. Bep. 507, 13 N. E. 164, holding judg-
ment conclusive to all questions within issue, whether litigated or not;
Kellogg V. Thompson, 115 Mich. 622, 73 N. W. 894, holding judgment
conclusive where parties failed because they did not allege facts to
change judgment; Darragh v. Kaufman, 2 Posey U. C. 107, holding
judgment conclusive on matters auxiliary to support defense.
Distinguished in Frankel v. Heidenheimer, 1 Tex. Ap. Civ. 460,
holding evidence in support of plea of res adjudicata is admissible
where relevant to issue.
Where First Case is Decided upon Its Merits, res adjudicata is
valid defense to all matters involved in isanie whether considered or
not.
Approved in Alamo Fire Ins. Co. v. Sohmitt, 10 Tex. Civ. 553, 30
S. W. 835, holding judgment of court conclusive as to rights of
parties; Piatt v. Vermillion, 99 Fed. 361, holding one cannot be privy
in estate to a judgment unless his title is derived from one bound by
judgment; dissenting opinion in Moore v. Snowball, 98 Tex. 40, 81 S.
W. 17, 66 L. B. A. 745, majority holding adverse judgment in suit
to remove cloud and recover land sold for taxes because sale void
because in bulk for property part of which homestead, no bar to suit
to set aside sheriff's deed for irregularities in sale leading to inade-
quate price.
Where Amount of Taxes Involved in Second Suit after determina-
tion of first suit is not sufficient to give court jurisdiction, cause
should be dismissed.
Approved in Blanc v. Meyer, 59 Tex. 92, holding suit in district
court to enjoin sheriff from collecting taxes less than five hundred
49 Tex. 249-278 NOTES ON TEXAS EEP0BT8. 794
dollars properly dismissed; Snyder y. Wiley, 59 Tex. 449, IioWng
suit in district court to enforce mechanic's lien should be dismissed
where amount involved is not sufficient to give court jurisdiction;
Carter v. Hubbard, 79 Tex. 359, 15 S. W. 393, holding district court
has jurisdiction of suit to enforce lien when amount is properly set
out in petition to confer jurisdiction on court; Moody v. Cox, 54
Tex. 493, holding district court could not enjoin sheriff from collect-
ing taxes amounting to less than five hundred dollars.
Distinguished in Bed v. Johnson, 53 Tex. 288, holding court could
not stop collection of taxes where petition did not show facts within
statute; Anderson Co. v. Kennedy, 58 Tex. 623, 624, holding dis-
trict courts could enjoin collection of taxes where equity courts could
do so; Hamilton v. Wilkerson, 1 Tex. Ap. Civ. 279, holding error to
enjoin court where several are joined in suit to collect taxes. See
notes, 25 Am. Dec. 543; 2 Am. St. Bep. 878.
Miscellaneous. — Cited in Petterson v. Smith, 80 Tex. Civ. 141, 69
S. W. 544, legally authorized branch pilots of Galveston may jointly
maintain injunction to restrain pilot from acting as branch pilot
where he has not been lawfully empowered so to act.
49 Tez. 249-260, TBXTEHABT ▼. BABCOOK.
"Where Party Claims Title Under the State, statute of limitations
is not applicable till title accrues to party.
Approved in CoUyns v. Cain, 9 Tex. Civ. 200, 28 8. W. 548, hold-
ing possessory rights of either plaintiff or defendant will not be
litigated where title is in state; Westrope v. Chambers, 51 Tex.
188, holding plaintiff is bound by defendant's title, when she volun-
tarily yields to it.
49 Tez. 260-278, STARK ▼. ALFOBD.
Where There is Difference in Value Between Blachinery delivered
and that contracted for, that is the measure of damages for breach
of contract and no contingent and speculative damages can be re-
covered.
Approved in A. J. Anderson etc. Co. v. Cleburne etc. Co. (Tex.
Civ.), 27 S. W. 506, and Anderson Electric Co. v. Cleburne etc. L.
Co. (Tex. Civ.), 44 S. W. 933, both reaffirming rule; Jesse French
Piano etc. Co. v. Thomas, 36 Tex. Civ. 78, 80 S. W. 1063, plea of
failure of consideration, without allegation of fraud, does not raise
issue of right to rescind contract; Sabine etc. By. v. Joachimi, 58
Tex. 460, holding profits cannot be recovered as damages for negli-
gent construction of roadbed; Houston etc. By. v. Hill, 63 Tex. 387,
51 Am. Bep. 645, holding in suit for damages plaintiff is only en-
titled to net profits on tickets sold or bargained for; Snyder v. B&ker
(Tex. Civ.), 34 S. W. 982, holding measure of damage for breach of
warranty difference between value of horse as he is and value if
sound, with interest; Miller-Stone Machine Co. v. Balfour, 25 Tex.
Civ. 416, 417, 61 S. W. 974, holding contract for machinery should
not be rescinded where machinery was operated after being set up;
Florida Athletic Club v. Hope Lumber Co., 18 Tex. Civ. 167, 44 S.
W. 13, holding damages can be collected for difference in market of
value of lumber delivered and value at time contracted for; Bussell
V. Walker, 1 Tex. Ap. Civ. 507, applying rule to breach of warranty of
personal property; Miles v. Patterson, 2 Tex. Ap. Civ. 687, holding
measure of damage is difference in value of wheat delivered and value
795 NOTES ON TEXAS EEPOETS. 49 Tex. 279-321
of wheat purchased. See notes, 19 L. B. A. (n. 8.) 158; 52 L. B. A.
233.
Distinguished in Florida Athletie Club y. Hope Lumber Co., 18
Tex. Civ. 169, 4'4 S. W. 14, holding, where contract is executorj, no
damages ean be recovered.
Where Strangers to a Bill purchase same without notice of fail-
ure of consideration, maker of bill has no right of action against
them.
Approved in Goddard v. Beagan, 8 Tex. Civ. 275, 28 S. W. 353,
holding assignee of note and deed purchased for value and without
notice is not affected by equities of maker; Mulberger v. Morgan
(Tex. Civ.), 34 S. W. 150, holding, bona fide holder of notes given
in payment for horse is not subject to defenses arising from trans-
action.
Distinguished in Al);gelt t. Sullivan (Tex. Civ.}, 79 S. W. 340,
arguendo.
49 Tez. 279-311, GALVBSTON 00. ▼. GOBHAM.
"Where Tazee are Paid Voluntarily, it is not contrary to good con-
science for county to retain them.
See note, 60 L. B. A. 340.
Distinguished in Galveston Gas Go. y. Galveston Co., 54 Tex. 292,
holding gas company could recover back taxes paid to avoid sale
of property; Blanc v. Meyer, 59 Tex. 92, holding district court would
not enjoin collection of taxes where amount in dispute was small.
Where Taxes are Paid Under Mistake of Law, no recovery can be
had on ground of mistake.
Approved in Scott v. Slaughter, 35 Tex. Civ. 527, 80 S. W. 645,
applying rule where money paid under mutual mistake as to validity
of consolidated lease of school lands; Gilliam v. Alford, 69 Tex. 271,
6 S. W. 759, applying rule where party seeking to recover taxes paid
the same with full knowledge of her rights. See cross-reference note,
78 Am. Dec. 538.
Act of 1873, Imposing Occupation Tax on wholesalers but exclud-
ing dealers exclusively in goods of local manufacture, is valid.
See note, 11 L. B. A. 219.
49 Tex. 311-821, HUBT ▼. EVAN&
Declarations Made by Grantee, when he had no interest in either
party, concerning boundary line, are admissible after grantee's death.
Approved in Goodson v. Fitzgerald, 40 Tex. Civ. 628, 90 S. W. 902,
following rule; Tucker v. Smith, 68 Tex. 478, 3 S. W. 673, holding
no error to allow witness to testify to statements of deceased par-
ties, not interested in suit, regarding boundary; Bussell v. Hunni-
cutt, 70 Tex. 660, 8 S. W. 501, holding declarations of former owner
regarding boundary admissible after his death; Whitman v. Hay-
wood, 77 Tex. 559, 14 S. W. 167, holding no error to admit con-
flicting statements as to same thing after party's death; Daniels v.
Pitzhugh, 13 Tex, Civ. 313, 35 S. W. 43, holding no error to admit
deed in handwriting of grantee; Tracy v. Eggleston, 108 Fed. 328,
allowing such declarations, although surveyor was at the time part
owner of the land, embraced in the survey; Hunnicutt v. Peyton, 102
U. S. 366, 26 L. 120, holding, in questions of private boundary, dec-
laratiojis of deceased persons who were in posspssion are admissible.
See notes, 60 Am. Bep. 590; 94 Am. St. Bep. 682.
49 Tex. 322-333 NOTES ON TEXAS BEPORTS. 796
Distinguished in Reed v. Appleby (Tex. Snp.), 8 S. W. 291, hold-
ing inadmissible declarations of deceased grantor regarding owner-
ship and disposition of land certificate; dissenting opinion in Tracy
Y. Eggleston, 108 Fed. 331, majority allowing snch declarations, al-
though surveyor was at the time part owner of the land embraced in
the survey.
No Error for Jadge to Charge Jury to look to field-notes in making
boundary and not to be controlled by figures in plat of survey.
Distinguished in Anderson v. Martindale, 61 Tex. 190, holding
charge of court to jury to look to whole evidence, and not one par-
ticular part, valid. See note, 95 Am. Dec. 71, 72.
49 Tez. 322-333, H0T7BT0N ETC. B. & ▼. MHiLEB.
Where Son Is Employed Without Parenfe Ctonsent by railroad com-
pany, parent can recover damages for loss of service of son until of
age, and other expenses rendered necessary by injury.
Approved in Gulf etc. Ry. Co. v. Johnson, 99 Tex. 342, 90 S. W.
166, in action by parent for damages for injury to minor child, evi-
dence that parent depended on her work for living is inadmissible;
St. Louis etc. Ry. Co. v. Gregory (Tex. Civ.), 73 S. W. 28, parent
cannot recover for pain and suffering of infant injured, nor for anxiety
of parent because of child's injury; Birkel v. Chandler, 26 Wash. 248,
66 Pac. 409, in action by father for personal injuries to infant son,
evidence as to cost of clothing and educating child is inadmissible for
defendant; Houston etc. R. R. v. Miller, 51 Tex. 273, applying rule
where minor was employed without father's consent; Hamilton v.
G. H. etc. Ry., 54 Tex. 562, holding nother can recover damages for
injury to minor employed as brakeir. n without her consent; Evan-
sich V. G. 0. etc. Ry., 57 Tex. 126, holding parent could recover dam-
ages for loss of services of minor caused by negligence of another;
Gulf etc. Ry. v. Redeker, 67 Tex. 191, 60 Am. Rep. 21, 2 S. W. 527,
holding parent can recover damages for loss of services of minor in-
jured by negligence; Gulf etc. Ry. v. Redeker, 75 Tex. 311, 16 Am. St.
Rep. 888, 12 S. W. 855, holding, where one knowingly employh minor
in dangerous position, father may recover for damages; Texas etc.
Ry. V. Wood (Tex. Civ.), 24 S. W. 570, holding verJict for fifteen
hundred dollars for loss of son's services, through injury necessitat-
ing amputation of foot, not excessive; San Antonio St. Ry. v. Muth,
7 Tex. Civ. 451, 27 S. W. 756, applying rule where minor was in-
jured while a passenger; Lutcher etc. Lumber Co. v. Dyson (Tex.
Civ.), 30 S. W. 62, holding measure of damage for injury to child,
in absence of earning capacity, is expense of sickness; Missouri etc.
Ry. V. Rodgers (Tex. Civ.), 39 S. W. 384, holding measure of dam-
age for injury to minor child is loss of service until age of twenty-
one years and expense consequent on injury; Frazier v. Georgia K.
R. etc. Co., 101 Ga. 75, 28 S. E. 685, holding father could recover
for loss of services of child, although child brought suit for damages.
Distinguished in Aetna Life Ins. Co. v. Nexsen, 84 Ind. 354, 43
Am. Rep. 94, holding agent of insurance company may recover dam-
ages for dismissal; Texas etc. Ry. v. Putman (Tex. Civ.), 63 S. W.
910, holding parent could recover damages for injury to minor em-
ployed with his consent, where injuries resulted from lack of ordi-
nary care. See note, 48 Am. Dec. 622, 623.
797 NOTES ON TEXAS REPORTS. 49 Tex. 333-347
49 Tez. 333-339, BLESSIKG Y. EDMONSON.
Where Grantors, by Becltals In Deed, intend to abandon homestead,
the legal effect of deed is an abandonment.
Distinguished in Crockett v. Templeton, 65 Tex. 136, holding no
abandonment of homestead where deed contains nothing inconsistent
with grantor's right to use land as homestead.
Wbere Pleadings of Defendant were purely defensiye, a judgment
expressed in inappropriate language will not operate to bar a second
suit.
Approved in Houston etc. B. B. v. McGehee, 49 Tex. 490, applying
rule Where addition to verdict was superfluous, and understood in ref-
erence to suit tried; Sanchez v. Ramirez, 58 Tex. 313, judgment in
trespass to try title for defendant on plea setting up title in himself
is no bar to second suit brought within time prescribed by former
law.
Distinguished in French v. Olive, 67 Tex. 402, 3 S. W. 569, hold-
ing, where plaintiffs failed to make out their case, defendants were
entitled to judgment forever conclusive of their claims.
Miscellaneous. — Cited in Smith v. Day, 39 Or. 534, 64 Pac. 813,
where cause removed to federal court and no order of remand made,
it is presumed that removal regularly made.
49 Tex. 341-347, HOUSTON ETC. BY. v. OBAM.
Ballroad Oompany must Use Ordinary Care in constructing its road,
tanks, or cars, and are responsible for damages to employee for negli-
gence in using ordinary care.
Approved in Eddy v. Adams (Tex. 8up.)i 18 S. W. 490, reaffirm-
ing rule; Bering Mfg. Co. v. Peterson, 28 Tex. Civ. 196, 67 S. W. 134,
charge imposing on master duty of furnishing servant with safe place
to work, and safe appliances is erroneous; Galveston etc. By. Co. v.
Brown, 33 Tex. Civ. 590, 77 S. W. 833, railway freight brakeman owes
no duty of inspection to discover dangerous proximity of right of way
fence post to spur track at point not on road over which he runs;
Derby v. Kentucky Cent. By. (Ky.), 4 S. W. 304, holding railroad
must use reasonable care to provide reasonably adequate and safe
appliances for employees; Arabello v. San Antonio etc. By. (Tex.
Sup.), 11 S. W. 916, holding railroad liable for injuries to employee
in performance of duty caused by placing beam in unsafe position
near track;. Bonner v. La None, 80 Tex. 120, 15 S. W. 804, holding
corporation is liable for damages to servants for injuries occurring
without their negligence; Galveston etc. By. v. Goodwin (Tex. Civ.),
26 S. W. 1007, holding railroad must use ordinary care in furnish-
ing safe appliances for employees; Houston etc. By. v. Milam (Tex.
Civ.), 58 S. W. 737, holding railroad company liable for not using
ordinary care in inspecting footboard of foreign engine; Galveston
etc. By.' V. Daniels, 1 Tex. Civ. 698, 20 S. W. 956, holding error where
charge does not state law correctly regarding care of master to ser-
vants; Galveston etc. By. v. Crawford, 9 Tex. Civ. 252, 29 S. W. 961,
holding ordinary care in constructing appliances is all that is required;
Missouri etc. By. v. Kirkland, 11 Tex. Civ. 534, 32 S. W. 591, hold-
ing charge good which did not require more than ordinary care in
maintaining safe approaches to cars; Louisville etc. B. B. v. Hall, 87
Ala. 718, 13 Am. St. Bep. 86, 6 So. 281, holding bridge constructed
with regard to safety of employees is not negligence; Lake Shore etc.
By. Vs McCormick, 74 Ind. 446, holding corporations do not have to
49 Tex. 347-358 NOTES ON TEXAS REPORTS. 798
adopt new machinery, but keep them in sound repair; Baltimore etc.
R. R. V. Rowan, 104 Ind. 93, 3 N. E. 630, holding master should con-
struct its works that servant can work with reasonable safety; St.
Louis etc. R. R. v. Irwin, 37 Kan. 710, 1 Am. St. Rep. 270, 16 Pac.
151, holding master liable where it uses an unsafe and unsuitable
bridge; Potter v. Detroit etc. Ry., 122 Mich. 183, 81 N. W. 81, hold-
ing master liable where he locates telegraph poles so near tracks
as to render it unsafe for employees; Boss v. Northern Pacific R. R.,
2 N. D. 136, 33 Am. St. Rep. 761, 49 N. W. 657, holding servant
does not assume risk arsing from erection of switch-board near track.
Distinguished in Texas etc. Ry. v. Huffman, 83 Tex. 290, 18 S.
W. 742, holding error to charge jury that corporation must use great
diligence; Texas etc. Ry. v. Hohn, 1 Tex. Civ. 41, 21 8. W. 944, hold-
ing master liable for damages where track was rendered dangerous
by negligent act of servant.
Jury Should be Charged That Ordinary Care is such care as a pru-
dent man would exercise under similar circumstances.
Approved in Texas etc. R. R. v. Black (Tex. Civ.), 44 S. W. 675,
reaffirming rule; Southern Cotton Press etc. Co. v. Bradley, 52 Tex.
599, holding negligence vel non is tested by care of ordinary man;
Missouri etc. R. R. v. Lyde, 57 Tex. 509, holding error where jury
were not charged regarding ordinary care; I. & G. N. R. R. v. Hes-
ter, 72 Tex. 44, 11 S. W. 1043, holding employee of railroad must
use proper care; International etc. Ry. v. Bell, 75 Tex. 53, 12 S. AV.
321, holding error to charge that corporation should use a greater
degree of care than law requires; Gulf etc. Ry. v. Letseh (Tex. Civ.),
40 S. W. 182, holding incorrect, charge that "negligence is want of
care and caution which just and intelligent sense of one's obligations
and due regard for rights of 'others would demand"; San Antonio etc.
Ry. V. Safford (Tex. Civ.), 48 S. W. 1105, holding correct, charge that
negligence is failure to do what prudent man would do under like
circumstances.
Distinguished in Texas etc. Ry. v. Gorman, 2 Tex. Civ. 146, 21
8. W. 158, holding no error where court charged jury regarding neg-
ligence when verdict would not have been different.
Limited in St. Louis etc. Ry. Co. v. Smith, 33 Tex. Civ. 520, 77 S.
W. 29, charge defining negligence as failure to do what reasonable
and prudent man would ordinarily do under circumstances, not re-
versible error in absence of request for more specific instruction.
Where Jury were Charged to Consider Comuel Fees in estimating
MJamages, held error, for counsel fees are not natural result of in-
jury.
Distinguished in Neese v. Radford, 83 Tex. 588, 19 S. W. 142, hold-
ing attorney fees incurred in another suit cannot be collected as
damages; Sherrick v. Wyland, 14 Tex. Civ. 300, 37 S. W. 345, hold-
ing error not to allow recovery of attorney fees as damages; Webb
V. Harris, 1 Tex. Ap. Civ. 583, holding attorney's fees are not re-
coverable for prosecuting suit for damages for conversion. See notes,
77 Am. Dec. 219; 53 Am. Rej. 701.
49 Tex. S47>S58, LAMAB CO. ▼. CLEMENTS.
Where Owner of Isand Lays Ont and establishes a town, purchasers
acquire all rights, easements, and servitudes represented as belonging
to them or to their owners.
799 NOTES ON TEXAS REPORTS. 49 Tex. 347-358
Approved in Weynand v. Lutz (Tex. Civ.), 29 S. W. 1099, reaffirm-
ing rule; City of Llano v. County of Llano, 5 Tex. Civ. 137, 23 S. W.
1011, upholding sufficiency of allegations to vhow dedication of public
square for public uae; Larson v. Chicago etc. Ry. Co., 19 S. D. 292,
103 N. W. 37, where townsite established on both sides of track
and under direction of division superintendent, crossing consrtructed
at crossing of principal streets, which remained and was used for
four years, there was implied dedication of crossing irrespective of
superintendent's lack of authority to dedicate; Llano Co. v. Knowles
(Tex. Civ.), 29 S. W. 551, holding owner may recover land where made
for purposes inconsistent with dedication; Bell v. Todd, 51 Mich. 27,
16 N. W. 306, holding purchaser of abutting lot is entitled to ingress
and egress from his grantor; Ostrom v. Arnold, 24 Tex. Civ. 192, 58
S. W. 632, holding grantor of lots bound by dedication of streets,
though they be inclosed; Gillean v. Frost, 25 Tex. Civ. 375, 61 S. W.
347, holding purchaser of lake dedicated to public use takes no title;
G. C. etc. V. Graves, 1 Tex. Ap. Civ. 303, rule not applicable where
railroad only appropriated portion of street; Rippetoe v. Low, 1 Posey
XT. 0. 482, holding public has right to streets dedicated to public use
by town plat; Dwyer v. Hosea, 1 Posey U. C. 601, applying rule
where alleyway was dedicated to public use; Smith v. Dallas, 2
Posey U. C. 630, holding purchasers have right to have street opened
where lots are sold in reference to it.
Where Owner of Land Lays Out a Town, sale of lots implies a
covenant that the streets shall never be appropriated by owner to
use inconsistent with representations when lot was sold.
Approved in City of Corsicana v. Anderson, 33 Tex. Civ. 600, 602,
78 S. W. 263, following rule; Temple v. Sanborn, 41 Tex. Civ. 71, 91
S. W. 1098, deflrignation of strip as "Reserved for railroad purposes"
on recorded plat of subdivision in which lots sold estops original
owner and vendees from appropriating strip for other purposes;
Corsicana v. White, 57 Tex. 385, holding dedicator of streets in
proposed addition to city bound by his warranty; Day v. Chambers,
62 Tex. 192, holding grantor reserving portion of block for streets
is estopped from claiming it; Rhodes v. Brightwood, 145 Ind. 26,
43 N. E. 944, holding grantor cannot recover land dedicated as park
where adjoining owners purchased lots with reference to it.
Distinguished in Houston etc. R. R. v. Odum, 53 Tex. 353, hold-
ing adjoining lot owner cannot recover damages for use of etreet
by railroad; G. C. etc. R. R. v. Eddins, 60 Tex. 662, holding abut-
ting owner can maintain suit for damages for use of street by rail-
road.
Where Owner Dedicates Property to public use, it is not necessary
that he should in all cases abandon all use, occupancy, and control
of such property.
Approved in Gild«r v. Brenham, 67 Tex. 350, 3 S. W. 311, hold-
ing grantor dedicated street where he conveyed abutting lots with
well-defined boundary; Bond v. Texas etc. Ry., 15 Tex. Civ. 286,
39 S. W. 980, holding grantor could not recover portion of block
dedicated as alleyway; Indianapolis v. Kingsbury, 101 Ind. 214,
holding land owners cannot recover strip of land dedicated to city
by inference of their actions; Miller v. Indianapolis, 123 Ind. 207,
24 N. E. 231, holding grantor cannot recover land which commis-
sioners partitioned as a street.
49 Tex. 358-364 KOTES ON TEXAS EEPOETS. 800
Distinguished in State y. Travis Co., 85 Tex. 441, 21 S. W. 1031,
holding state could recover land dedicated on condition to county;
Chicago V. Chicago etc. By., 152 111. 570, 38 N. E. 772, holding counry
can recover where there has been no dedication; Shellhonse v. State,
110 Ind. 513, 11 N. E. 486, holding permission from owner to pass
over land doesr not constitute dedication.
Where Dedication of Land to Public JJae. is manifested by un-
equivocal acts upon which those interested in dedication have acted,
real intent of owner in making dedication cannot control effect of
those acts.
See note, 23 L. B. A. (n. s.) 398.
Where County Dedicates PubUc Square for courthouse, it can estop
itself from using the vquare dedicated for a different purpose.
Approved in Llano v. Llano Cb., 5 Tex. Civ. 139, 23 S. W. 1011,
holding county could not erect jail on block dedicated for use of
courthouse; Corporation of Seguin v. Ireland, 58 Tex. 185, apply-
ing rule where city builds guardhouse on public park; Harris Co.
V. Taylor, 58 Tex. 695, holding county could not build jail on dedi-
cated park.
Distinguished in Youngerman v. Board of Supervisors, 110 Iowa,
738, 81 N. W. 168, holding county could seU block reserved as pub-
lic ffquare in commissioner's plat.
Miscellaneous.— Cited in Sideck y. Duran, 67 Tex. 264, 3 S. W.
268, on question of estoppel.
49 Tez. 858-364, PAEIS EXCHANGE BANE v. BEABD.
Where Tbree Notee, maturing at different dates, are given for pur-
chase of land, the first to mature ia not entitled to precedence in
appropriating proceeds.
Approved in Lewis v. Boss (Tex. Civ.), 65 S. W. 505, reaffirming
rule; Delespine v. Campbell, 52 Tex. 12, holding firtrt of two notes,
secured by lien, to mature first shares equally with second; Salmon
V. Downs, 55 Tex. 247, holding assignees of notes having lien have
equal rights for payment without reference to order of assignment;
Whitehead v. Fisher, 64 Tex. 641, applying rule where holder of
note maturing first had assigned it; Cason v. Connor, 83 Tex. 30,
18 S. W. 669, holding intervener subrogated to rights under mort-
gage is in same attitude as mortgagee; Davis v. McGaughey (Tex.
Civ.), 32 S. W. 448, holding not error to enter judgment in suit
on vendor's lien note because others not due; Tidwell v. Starr (Tex.
Civ.), 42 S. W. 779, holding holders of other notes should be made par-
ties in suit to foreclose one vendor's lien note; Douglass v. Blount, 22
Tex. Civ. 495, 496, 55 S. W. 527, 528, holding assignee of note hav-
ing lien should be made party to foreclosure; Penzel v. Brookmire, 51
Ark. 109, 14 Am. St. Bep. 24, 10 S. W. 15, holding assignees of notes
are entitled pro rata to proceedtf when proceeds not sufficient to
I>ay all; Nashville Trust Co. v. Smythe, 94 Tenn. 524, 45 Am. St.
Rep. 754, 29 S. W. 906, 27 L. B. A. 663, holding assignees of notes
having lien share pro rata where there is no contract to vary rule;
Nashville Trust Co. v. Smythe, 94 Tenn. 526, 45 Am. St. Bep. 755,
29 S. W. 906, 27 L. B. A. 663, holding assignees of notes having
lien 9haro pro rata irrespective of dates of assignment; Stell v.
Lewis, 2 Posey U. C. 533, holding several notes for purchase money
not entitled to preference over each other. See notes, 38 Am. Dec.
441; 24 L. R. A. 800; 13 L. B. A. 298.
801 NOTES ON TEXAS REPORTS. 49 Tex. 364-397
49 Tex. 864-371, BYAN ▼. EVANS.
Wliere It ia Provided Tliat Certain ThingB shall be done to organize
a new county, a mere declaration does not create it.
Approved in Bealmear y. Hutchins, 148 Fed. 560, holding until
organization in 1853 of Jackson county under N. C. Laws 1852,
p. 97, such county had no legal exiertence; Reeves Co. y. Pecos Co.,
69 Tex. 178, 7 S. W. 56, holding inhabitants of new county subject
to rule of old county until they organize a county government.
49 Tez. 371-877, McKINNEY v. ABBOTT.
Under the Statute "Wliere Intestate Leayes Neither Wife, children,
father, mother, brothers, sisters, nor descendants of either, nor grand-
parents or great-grandparents, maternal or paternal, his esrtate shall
be divided in equal moieties, and one given to descendants of his
paternal grandfather and grandmother, and other to descendants
of his maternal great-grandfather and great-grandmother.
Approved in Witherspoon v. Jernigan, 97 Tex. 105, 76 S. W. 446,
applying rule where decedent's only paternal kindred were descend-
ants of three aunts; Young v. Gray, 60 Tez. 544, applying the rule
in distribution of estate of a minor.
49 Tex. 377-380, ABEB y. WABDEN.
Wliere the Enforcement of Bail Bonds are incidental to criminal
cases, appeals in forfeited bail bond cases are to be taken to court
of appeals.
Approved in Hart v. State, 13 Tex. Ap. 557, following rule; Jeter
y. State, 86 Tex. 557, 558, 26 S. W. 49, holding court of civil appeals
has no jurisdiction of criminal cases; Scott v. State, 6 Tex. Civ. 345,
25 S. W. 337, holding supreme court has jurisdiction of appeal to
disbar attorney.
49 Tex. 380-397, COWAN ▼. WTT.TJAMS.
Where Original Instrument has all essentials of a deed, a certified
copy is admissible in evidence.
Distinguished in Van Sickle v. Catlett, 75 Tex. 407, 13 S. W. 32,
holding certified copy of instrument properly refused admittance
where execution of original is not proved.
Where an Act of Sale is a Paper properly in the custody of the
officer before whom the sale was declared, a certified copy is ad-
missible in evidence.
Approved in Broxson y. McDougal, 63 Tex. 197, holding county
clerk could certify to original act of sale in his possession; Ubl v.
Musquez, 1 Posey U. C. 657, holding document composing title prop-
erly an archive in county clerk's office.
Where Plaintiff Filed an Amended Petition on day of trial requir-
ing defendant to set up his title, and defendant was not in attend-
ance in court, failure to ask for a continuance does not estop him
from moving for a new trial.
Approved in Central etc. B. B. v. Henning, 52 Tex. 474, holding
continuance should be granted where amended petition making ma-
terial change in cause of action is filed on day of trial.
Distinguished in Texas etc. By. v. Goldberg, 68 Tex. 688, 5 S. W.
825, holding no ground for new trial where amended petition alleged
defendant's residence on different part of same block; HoUiday v.
Holliday, 72 Tex. 585, 10 S. W. 692, 3 L. R. A. 417, holding new trial
2 Tex. Notes— 51
49 Tex. 898-439 NOTES ON TEXAS BEPOBTB. S02
ahoald not be granted where defendant does not file af&dayit showing
meritoriona defense; Gulf etc. By. v. Butler (Tex. Civ.), 34 S. W. 759,
holding filing amendment operating as surprise is ground for post*
ponement or continuance.
New Trial Should he Chraated where amendment raises new issue
and defendant was unable to attend trial through sickness.
Approved in Coreth v. McNatt, 33 Tex. Civ. 475, 77 S. W. 34, where
action against warrantor who did not appear was amended hy set-
ting up added cause of action, there could be no recovery on latter
without notice of amendment; Trueheart v. Simpson (Tex. Civ.),
24 S. W. 843, holding new trial proper, where defendant absent
from court through sickness, and motion shows defense on merits.
49 Tez. 39&-420, MILIiEB ▼. BOGEBS.
Where Foreclosure Suit is Brought, purchaser from mortgagor can
maintain that land in hands of mortgagor be sold first and then lands
of last purchasers.
Approved in Bippetoe v. Dwyer, 49 Tex. 504, holding error for court
to charge purchasers from mortgagor held ratably with others and
without regard to priority of purchase. See notes, 16 Am. Dec. 143;.
62 Am. Dec. 512.
49 Tez. 430-433, BIXJiS ▼. SCOTT.
Whan Administrator was Interested in Homestead as an heir, and
appealed from order treating it as property of father, held he should
give an appeal bond.
Approved in Holman v. Elatt, 34 Tex. Civ. 607, 78 S. W. 1088,
in contest between heirs and administrator where administrator dis-
missed because of lack of jurisdiction to grant letters, administrator's
appeal from dismissal required bond to clerk before making up tran-
script; Hicks V. Oliver (Tex. Civ.), 26 S. W. 642, holding admin-
istrator must give bond on appeal from judgment charging him with
items not on account and denying credits claimed; Erwin v. Erwin
(Tex. Civ.), 61 S. W. 159, holding executrix could appeal without
filing appeal bond where estate was not concerned in appeal.
Administrator cannot Sue for Injunction when ordered to give a
new bond.
Approved in Halcomb v. Kelly, 57 Tex. 621, holding no injunction
to restrain justice of peace from enforcing judgment will issue where
petition does not show error in judgment.
49 Tez. 433-439, CfLAY ▼. HABT.
In a Suit to Besclnd a Contract for sale of land, no interest is al-
lowable on purchase money recovered.
Approved in Moore v. Giesecke, 76 Tex. 548, 13 S. W. 291, holding
vendor, in rescinding executory contract, not entitled to value of
use and interest on payments when he does not oWei to perform con-
tract.
Where Vendor Brings an Action to recover possession of land, he
cannot claim all the equities which he could if vendee sought equity.
Approved in State v. Snyder, 66 Tex. 698, 18 S. W. 109, holding^
vendor, in recovery of land, not required to return to vendee pur-
chase money when it amounts to less than rent.
Distinguished in Oriental v. Barclay, 16 Tex. Civ. 215, 41 S. W.
127, holding vendor not required to return purchase money wher^
803 NOTES ON TEXAS EEPOBTS. 49 Tex. 444-463
lightB of all are protected. See notes^ 73 Am. Dec. 211; 74 Am. Dec.
660.
49 Tex. 444-467, JOHNS T. KOBTHCtTTT.
Wbeie Witness Testified that, from correspondence with members
of family, he believed certain parties were heirs, objection should be
sustained as hearsay.
Approved in Davidson v. Senior, 3 Tex. Civ. 550, 23 S. W. 25, hold-
ing recitals in instrument regarding heirship not sufficient to warrant
its introduction; Schwarzhoff v. Necker, 1 Posey U. C. 328, holding
declarations of intervener concerning death of her mother not suffi-
cient; Wallace v. Howard (Tex. Civ.), 30 S. W. 712, holding objec-
tion that evidence of declarations is hearsay puts burden on person
offering it to bring it within exceptions; Schott v. Pellerim (Tex,
Civ.), 43 S. W. 945, holding declarations relating to identity, not
made ante litem motam, are inadmissible; Wells, Fargo Co. Express
V. Waites (Tex. Civ.), 60 S. W. 583, holding objection to hearsay
evidence good where witness testified that he learned name of wit-
ness from inquiry.
Distinguished in Cook v. Carroll etc. Cattle Co. (Tex. Civ.), 39 S.
W. 1011, holding admissible declarations of mother which are not
self-serving, though learned from declarations of deceased father.
Where Land is Partitioned, costs incurred should be divided.
Approved in Keener v. Moss, 66 Tex. 184, 18 S. W. 447, holding in
partition suit judgment for costs, down to entry of decree, should not
be entered, unless judgment debtor is contesting rights of all others.
Where Decree Distributed Property to certain heirs, those in-
terested in estate are not bound by decree where record shows they
were not before the court.
Approved in Anderson v. Lockhart, 2 Posey TJ. C. 70, holding pro-
bate sale not valid where authority is lacking in record.
Defendants in Partition are Liable for All Oosts incurred by them
in contesting rights of successful plaintiff.
Approved in Powell v. Naylor, 32 Tex Civ. 343, 74 S. W. 339, fol-
lowing rule.
49 Tex. 468-463, WALKEB ▼. McDOKALD.
Wliere Instrument 1b Ambiguous and may be a mortgage or con-
ditional sale, the object and intention of the parties may be looked
into.
Approved in Howard v. Kopper]^ 74 Tex. 502, 5 S. W. 633, holding
no error for court to allow jury to determine Character of instru-
ment susceptible of being a mortgage or conditional sale; Gray v.
Shelby, 83 Tex. 408, 18 S. W. 810, holding as between conditional sale
and mortgage equity will construe instrument as mortgage, unless
violence is done thereby. See note, 6 L. B. A. 41.
Distinguished in Lessing v. Grimland, 74 Tex. 244, 11 S. W. 1097,
holding intent of parties must be shown by written contract, unless
ambiguous; Adams v. Bateman (Tex. Civ.), 29 S. W. 1125, holding evi-
dence aliunde may be considered to explain written instrument only
when its terms are ambiguous; Eckford v. Berry (Tex. Civ.), 27 S.
W. 843, holding where instrument conveying land, providing that it
shall be void if consideration unpaid within given time, evidence
aliunde is admissible to explain it; Morris v. Houriey (Tex. Civ.),
34 S. W. 659| holding title acquired by purchaser for mortgagor at
49 Tex. 463-481 NOTES ON TEXAS REPOETa 804
foreclosure sale inures to benefit of mortgagor's grantee as against
persons with notice; Jefferies v. Hartel (Tex. Civ.), 51 S. W. 655,
holding instrument showing that it was given to secure indebted-
ness, and providing for redemption on payment, is mortgage.
49 T«x. 468-473, ROOSEVELT ▼. DAVIS.
Wliere Deed Contained an Express Beser7ati<Hi of lien for payment
of purchase money, the superior right to land belonged to vendor till
purchase money was paid.
Approved in Gilbrough r. Bunge, 99 Tex. 542, 122 Am, St. Bep.
659, 91 S. W. 567, purchasers of land from vendee of same bound
to take notice of terms of deed from his vendor reserving vendor's
lien, though unrecorded; Baker v. Gompton, 52 Tex. 261, holding ven-
dor's title not better than vendee's, where no lien is retained; McKel-
vain V. Allen, 58 Tex. 387, holding deed conveying absolute title, and
notes executed at same time retaining vendor's lien form executory
contract; Hale v. Baker, 60 Tex. 219, holding vendor may enforce lien
where contract of sale is executory; Bussell v. Kirkbride, 62 Tex.
456, holding vendor having lien does not part with legal title till
purchase money is paid; Crafts v. Daugherty, 69 Tex. 480, 6 S. W,
852, holding vendor has legal title where mortgage is given for
balance of purchase money; Graham v. Hawkins, 1 Posey U. C. 519,
holding vendee only chargeable with recitals of deed.
Distinguished in Ransom v. Brown, 63 Tex. 189, holding absolute
conveyance and notes given for purchase money is executed contract
where no lien is reserved; Pearson v. Boyd, 62 Tex. 544, holding
possession by claimant under executory contract of vendee not pre-
judicial to claimant under executory contract of vendor.
Where Purchase Money Notes have not been paid, a grantee by
quitclaim deed holds in subordination to holder of purchase money
notes, and cannot plead statute of limitations against holder of notes
as bar to action in trespass to try title.
Approved in White v. Cole, 9 Tex. Civ. 281, 29 S. W. 1150, holding
in action of trespass to try title, limitation does not run against
holder of note for purchase money; Johnson v. Lockhart, 16 Tex.
Civ. 34, 40 S. W. 641, holding limitation does not run against holder
of note for balance of purchase money; McAfee v. Wheelis, 1 Posey
U. C. 69, holding default of vendor to foreclose gives vendee right
to defend; Smith v. Pate (Tex. Civ.), 43 S. W. 314, holding statute of
limitations suspended where vendee in possession under deed re-
taining vendor's lien until vendee repudiates vendor's title, and ven-
dor has notice. See note, 65 Am. Dec. 144.
Where Vendor Holding Purchase Money Notes sells property to
third party, such sale is repudiation of relation of vendor and vendee
as to original vendee, and statute of limitation runs from such sale.
Approved in McManus v. Matthews (Tex. Civ.), 55 S. W. 590,
holding where person sells land to another than party named in
contract of sale, contract is repudiated, and statute runs.
49 Tex. 474-481, DIBBELL v. SMITH.
Where Purchase Money is Secured by Lien, the lien could not sur-
vive a discharge and cancellation of the note for security.
Distinguished in Farmers' etc. Nat. Bk. v. Taylor, 91 Tex. 82, 40
S. W. 880, holding taking of notes and ufortgage does not waive
lien.
805 NOTES ON TEXAS REPORTS. 49 Tex. 481-491
VMidor'8 Lien Exists as Security for purchase money of land unless
expressly waived, or other security taken.
Approved in Marshall v. Marshall (Tex. Civ.), 42 8. W. 354, hold-
ing vendor's lien on land exists though not retained by special agree-
ment or security.
Where Amoant Realized from Sheriff's Sale is insufficient to pay
judgment, judgment creditor should file claim against estate for bal-
ance.
Approved in Bartley r. Harris, 70 Tex. 182, 7 S. W. 798, holding
trustee foreclosing vendor's lien lost his title against administratrix;
remedy was claim against the estate.
Miscellaneous. — Miscited in Abney v. State, 20 Tex. Civ. 105, 47
S. W. 1045.
49 Tex. 481-491, HOUSTON ETC. S. B. ▼. McGEHEE.
Where There is a Prior Itocation without survey and patent issued
thereon, presumptive to hold that there was a survey.
Approved in McKinney v. Grassmeyer, 51 Tex. 382, holding under
statute a file olr location without survey holds land for year; Cassin
▼. O'Sullivan, 61 Tex. 595, holding failure of officer to enter location
no bar to rights of locator against locator with notice; Sheppard v.
Avery (Tex. Civ.), 32 S. W. 793, holding elder legal title under patent
must prevail until equities making junior title superior are shown.
Where Oommissioner of the Oeneral Land Office wrote letters con-
cerning priority of location, held error to admit his opinion.
Approved in Hanrick v. Cavanaugh, 60 Tex. 24, holding commis-
sioner of land office had no authority to annul titles ex parte; Han-
rick V. Dodd, 62 Tex. 90, holding correspondence of commissioner
of land office should not be admitted; Shiffiet v. Morelle, 68 Tex. 388,
4 S. W. 845, holding conclusions of witness regarding contents of an
instrument not admissible; G-aither v. Hanrick, 69 Tex. 97, 6 S. W.
622, holding certificate of land commissioner, invalidating title, not
admissible; Radam v. Capital Microbe etc. Co., 81 Tex. 131, 26 Am.
St. Rep. 789, 16 S. W. 992, holding expert should not state conclu&rions
as to facts of case; Fulcher v. White (Tex. Civ.), 48 S. W. 882,
holding opinion of surveyors on location of survey involving question
of land inadmissible in evidence.
In Action of Trespass to Try Title where judgment was for de-
fendant that plaintiff take nothing, and to which is added that de-
fendant be quieted to his title, the addition is not a bar to second
suit by plaintiff.
Approved in New York etc. Land Co. v. Votaw (Tex. Civ.), 52
S, W. 127, reaffirming rule; Sanchez v. Ramirez, 58 Tex. 313, holding
under statute former judgment quieting title no bar to second suit;
French v. Olive, 67 Tex. 402, 3 S. W. 569, holding judgment for de-
fendant valid, where plaintiffs failed to make out their case.
Prior Location, Followed by Diligence in making survey and re-
turning field-notes, is appropriation of land against claim having in-
ception thereafter.
Approved in Sheppard v. Avery, 95 Tex. 506, 68 S. W. 506, affirm-
ing 28 Tex. Civ. 481, 69 S. W. 83, grant to colonist in Austin's Little
Colony, lying only partly within its limits, did not constitute color
of title to claimants thereunder to portion outside limits, so as to
support title by limitation, as against claimant under passed on
survey made prior to act of 1854.
49 Tex. 498-525 NOTES ON TEXAS BEPOBTS. 806
49 Tex. 498--507, BIPPETOE v. DWTEB.
Ill a Suit of Trespass to Try Title, the equities of the parties to the
suit must be set out in the pleadings to enable the court to look into
them.
Approved in Fuller v. O'Neal, 69 Tex. 352, 5 Am. St. Bep. 62, 6
S. W. 182, holding affirmative relief not given under plea of not
guilty.
Distinguished in Matthews v. Moses, 21 Tex. Civ. 496, 52 S. W.
114, holding defendant can obtain cancellation of deed under plea
of not guilty.
Tenants in Common Acquiring Their Interests at different times
are not prevented from purchasing an outstanding title or encum-
brance.
Approved in McFarlin v. Leaman (Tex. Civ.), 29 S. W. 45, Sheppard
' V. Avery (Tex. Civ.), 32 S. W. 793, 794, both reaffirming rule; Moore
V. Snowball, 98 Tex. 25, 107 Am. St. Bep. 596, 81 S. W. 9, 66 L. R
A. 745, adverse judgment in suit to remove cloud and recover land
sold for taxes on ground that sale void because in bulk for land,
part of which homestead, no bar to suit to set aside sheriff's deed
for irregularities in sale leading to inadequate price; Dwyer v.
Bippetoe, 72 Tex. 534, 10 S. W. 670, holding assignees of vendee of
land subject to lien not barred from purchasing lien; Thomas v.
Morrison (Tex. Civ.), 46 S. W. 48, holding title purchased by attorney
and cotenant inures to benefit of client and cotenant on repayment
of proportion of purchase money; Moon v. Jennings, 119 Ind. 134, 12
Am. St. Bep. 387, 20 N. E. 751, holding joint tenant who purchases
lien entitled to contribution from other joint tenants. See notes, 28
Am. Dec. 84; 78 Am. Dec. 556; 86 Am. Dec. 669; 47 Am. St. Bep.
79.
Distinguished in Franklin Mining Co. v. O'Brien, 22 Colo. 137, 55
Am. St. Bep. 124, 43 Pac. 1019, holding tenant in common cannot pur-
chase superior mining claim and assert it against joint tenant; Elston
V. Piggott, 94 Ind. 26, holding purchaser at bankrupt sale of hus-
band's interest not trustee for wife's interest; McPheeters v. Wright,
124 Ind. 575, 24 N. E. 739, 9 L. B. A. 176, holding tenant in common
could not acquire title against his cotenant at auditor's sale; Stevens
V. Beynolds, 143 Ind. 479, 52 Am. St. Bep. 430, 41 N. £. 935, holding
rule not applicable where interests of cotenants accrued from differ-
ent instruments; Cecil v. Clark, 44 W. Va. 683, 30 S. E. 225, holding
joint tenant deriving title from different source cannot acquire title
adverse to cotenant.
Denied in dissenting opinion in Moore v. Snowball, 98 Tex. 31, 32,
33, 36, 81 S. W. 9, 11, 12, 15, 66 L. B. A. 745, majority holding ad-
verse judgment in suit to recover land sold for taxes on ground that
sale void because in bulk for land, part of which homestead, no bar to
suit to set aside sheriff's deed for irregularities in sale leading to inad-
equate price.
Cotenant Seeking Benefit of Cotenant's Pordiase of outstanding
title must assert right within reasonable time.
See note, 19 L. B. A. (n. s.) 527.
49 T«x. 507-525, JOHNSON ▼. EIJ>BIDOE.
A Prior Valid and Subsisting lK>cation and Bwmj will prevail over
a subsequent location and patent^ but patent carries a prima faeie
right to land granted.
S07 NOTES ON TEXAS BEPOBTS. 49 Tex. 525-535
Approved in Sheppard v. Avery (Tex. Civ.), 32 S. W. 793, reaffirm-
ing rule; Witherspoon v. Olcott, 119 Fed. 176, patent regularly is-
sued to Texas state lands not void though based on survey made by
surveyor working outside his regular districts; Atkinson v. Ward, 61
Tex. 385, holding introduction of patent by plaintiff sufficient to en-
title him to recovery on prima facie case; Forsgard v. League (Tex.
Oiv.)) 45 8. W. 174, holding grant of land puts legal title in grantee
and burden on claimant under junior grant to prove prior equitable
right; Watson v. White, 26 Tex. Civ. 444, 64 8. W. 827, holding pre-
emption laws liberally construed in favor of actual settler; Clark v.
Smith, 59 Tex. 279, holding recitals in unconditional certificate of
pre-emption sufficient presumption that original certificate was prop-
erly filed.
Distinguished in McKinney v. Grassmeyer, 51 Tex. 382, holding
location on valid survey confers no rights.
Tmder Statute There Gould be No Withdrawal of certificate from
general land office without an abandonment of survey and location
made upon it.
Approved in Snider v. International etc. B. B., 52 Tex. 325, holding
under statute withdrawal of field-notes from office is abandonment
of survey; Clements v. Eggleston, 2 Posey U. C. 485, holding failure
for sixteen years to return certificate not sufficient to rebut subse-
quent patent.
Distinguished in Perry v. Coleman, 1 Posey U. C. 317, holding
rights of pre-emptor revived by statute.
Billet Prescribed by Oommissioxier of general land office, in abarence
of direct statutory regulations, are entitled to highest consideration,
if not conclusive effect.
Approved in Shepard v. Avery, 89 Tex. 308, 34 S. W. 442, holding
custom of commissioner is recognizer*, where no statute to contrary;
De Cordova v. Bliss, 12 Tex. Civ. 533, 34 S. W. 147, holding com-
missioner could issue patent to assignee of certificate.
49 Tex. 525-^26, PENDLETON V. COLVILLE.
It is Error to Bender Judgment founded on matters alleged in an
amendment of which defendants had no notice.
Approved in Pena v. Pena (Tex. Civ.), 43 S. W. 1028, reaffirming
rule; Stewart v. Anderson, 70 Tex. 599, 8 S. W. 300, holding error
to issue attachment on money demand set up by amendment without
service of writ.
Bendition of Judgment by default upon new cause of action set up
by amendment, of which defendant had no notice, is fundamental
error, reviewable, though not assigned.
Approved in McCord v. HoUoman (Tex. Civ.), 46 S. W. 115, hold-
ing plaintiff's interest being stated in charge, and verdict as being
greater than shown by pleadings, is fundamental error.
49 Tez. 527-686, ABNOLD ▼. GAXTBLE.
A Partition Between Joint Owners does not operate to convey
land to one of the parties to the suit who had no title to the particu-
lar portion given him.
Approved in Glasscock v. Hughes, 55 Tex. 470, holding vendees of
party to partition suit can have their share set aside by assent;
Cameron v. Thurmond, 56 Tex. 33, holding deed to tenant in common
of specific property valid; Lemonds v. Stratton, 5 Tex. Civ. 408, 24
49 Tex. 527-535 NOTES ON TEXAS REPORTS. 808
8. W. 371, holding sale of specific property valid if not exceeding
share of cotenant vendor; Chace v. Gregg, 88 Tex. 558, 32 S. W. 522,
holding partition between joint owners does not convey title; Franks
V. Hancock, 1 Posey U. C. 568, holding defendants in partition suit
have no legal ground of complaint where survivor of community
interest partitioned common property.
In a Suit of Partition, any person claiming to hold any interest
in the land under one of the cotenants must be made party to the
suit.
Approved in Willis v.^ Robinson, 5 Tex. Civ. 9, 23 S. W. 823, holding
purchaser at execution sale cannot claim other property not par-
titioned; Wilbarger Co. v. Robinson, 5 Tex. Civ. 12, 23 S. W. 824,
holding grantee cannot have other land conveyed when this title
fails; Creech v. Davidson, 5 Tex. Civ. 43, 23 S. W. 996, holding no
recovery can be had where property sold did not belong to vendor;
Mee V. Benedict, 98 Mich. 272, 39 Am. St. Rep. 552, 57 N. W. 179,
22 L. R. A. 641, holding court of equity cannot relieve grantee by par-
tition among cotenants; New York etc. Land Co. v. Hyland, 8 Tex.
Civ. 606, 28 S. W. 207, holding vendees of appellant not necessary
parties where appellee did not complain; Currens ▼. Lauderdale, 118
Tenn. 504, 101 S. W. 433, where decedent owner in common of two-
thirds of tract sold part thereof by metes and bounds and later
complainant acquired other third interest and made no objection to
first conveyance, and later agreed to partition omitting land deeded
by decedent, he was estopped from claiming third interest in tract
sold by decedent.
In a Partitioii Suit Brooght by Heirs claiming property to be com-
munity, the heirs have a right to have land divided without regard
to rights of grantees of mother, and to that extent the conveyances
to the grantees are voidable.
Distinguished in Maverick v. Burney, 88 Tex. 561, 32 S. W. 512,
holding deed of specific property to joint tenants voidable between
tenants and valid between parties; Hanrick v. Gurley, 93 Tex. 477,
54 S. W. 356, holding grantees cannot complain of adjustment of
claims between their grantors; Wells v. Heddenberg, 11 Tex. Civ.
10, 30 S. W. 705, holding deed of specific property voidable by coten-
ant in equitable distribution.
Limited in Broom v. Pearson, 98 Tex. 475, 85 S. W. 792, guardian's
sale of specific portion of lands held by ward in common does not
devest interest of cotenants who have not acquiesced in such pro-
ceeding as affecting a partition.
In Partition Suit Brought by Heirs claiming property sold was
community, the court could give th« plaintiffs the north half.
Approved in Lenon v. Walker, 2 Posey U. C. 574, holding descrip-
tion adjoining on the east lot. No. 11, as valid; Falkin v. Anderson
(Tex. Sup.), 19 S, W. 354, holding conveyance of particular land
by one cotenant upheld where possible without prejudice to others;
Massie v. Yates (Tex. Civ.), 29 S. W. 1133, holding where vendor
conveys undivided half by deed, and vendee takes south half, pur-
chaser of north half from vendee is entitled to north half; Thompson
V. Robinson (Tex. Civ.), 56 S. W. 580, holding purchaser under trust
deed to homestead, from surviving husband, knowing claim of heirs,
takes title to lot, wife's heirs taking remaining lot.
Miscellaneous. — Griffin v. McKinney, 25 Tex. Civ. 437, 62 S. W. 81,
cited to the point that law of sister state should be pleaded in order
to admit existence of it; Arnold v. Leatherwood, 2 Posey, 244.
809 NOTES ON TEXAS EEPORTS. 49 Tex. 541-573
49- Tex. 641-656, STJMMEBS y. DAVIS.
Where Words ''Heretofore Titled or surveyed'' are used in statute,
the plain and ordinary meaning of words used will control.
Approved in Truehart v. Babeock, 51 Tex. 177, holding plaintiff
cannot recover, under statute, by subsequent location; Bryan v.
Crump, 55 Tex. 9, holding location upon land situated in Austin's
colony void under the statute; Day Land etc. Co. v. State, 68 Tex.
549, 4 S. W. 876, holding public domain does not include land for-
bidden to be located in certain colonies; Winsor v. O'Connor, 69 Tex.
577, 8 S. W. 522, holding under statute subsequent locator takes no
title where there is valid location; Texas-Mexican By. v. Locke, 74
Tex. 403, 12 S. W. 89, holding lands titled lands under statute.
Distinguished in Westrope v. Chambers, 51 Tex. 188, holding plain-
tiff cannot recover by subsequent location where he yielded to re-
grant.
Where Statute Embraced Those who had cultivated land at one
time valid, the actual settlers are to be favored where title is ques-
tioned.
Approved in Perry v. Coleman, 1 Posey U. C. 317, holding actual
settlers preferred in pre-empting land; Watson v. White, 26 Tex. Civ.
444, 64 S. W. 827, holding pre-emption laws should be liberally con-
strued in favor of actual settler. See note, 65 Am. Dee. 109.
49 Tex. 55&-573, OLDHAM y. McIVIIB.
Where Plaintiff Pleaded as res adjudicata that she was, in fact,
adjudged to be a widow, it is necessary to look into pleadings and
judgment rendered to determine the correctness of this position.
Approved in James v. James, 81 Tex. 380, 16 S. W. 1089, holding
judgment not conclusive as to collateral issues which are inferred;
Beast V. Donald, 84 Tex. 651, 19 S. W. 796, holding permissible to
look to pleadings and judgment in former suit where papers in cause
were lost; Noel v. Clark, 25 Tex. Civ. 144, 60 S. W. 360, holding
in action on notes res adjudicata is not a bar where matter of debt
due by notes was not in issue; Freeman v. McAninch, 87 Tex. 138,
47 Am. St. Bep. 85, 27 S. W. 99, holding evidence not admissible to
prove issues presented in determining judgment; American etc. Mort-
gage Co. V. Macdonell, 93 Tex. 405, 55 S. W. 739, holding judgment
does not preclude investigation of collateral matters; Freeman v.
McAninch, 6 Tex. Civ. 648, 24 S. W. 926, holding res adjudicata does
not apply where two issues may be determined, and judgment was
general; Alamo Fire Ins. Co. v. Schmitt, 10 Tex. Civ. 553, 30 S. W.
835, holding judgment in favor of two plaintiffs bars both in future
action on same issues; Norton v. Wochler, 31 Tex. Civ. 524, 72 S. W.
1026, arguendo. 6ee notes, 62 Am. Dec. 550; 73 Am. Dec. 218; 57
Am. Bep. 463.
Distinguished in Estate of Harrington, 147 Cal. 132, 109 Am. St.
Bep. 118, 81 Pac. 549, order denying application to set aside home-
stead out of property of decedent on ground that applicant not his
widow is conclusive on her on question of widowhood on final distri-
bution.
Decree in Injunction by One Holding Homestead as tenant of
administrator against family of deceased claiming property as pro-
bate homestead, and order setting apart homestead and finding as to
rental value during termj and directing that homestead be turned
49 Tex. 573-582 NOTES ON TEXAS BEPOBTS. 810
over to family at end of term, is no, bar to appeal from order setting
apart homestead.
See note^ 56 L. B. A. 51.
49 Tez. 673^82, HOtTSTON ETC. BT. y. OOBBETT.
Passenger must Use ordinary or reasonable care in alighting from
car.
Approved in Galveston etc. By. v. Thornsberry (Tex. Sup.), 17 S.
W. 524, Dallas etc. By. v. Bandolph, 8 Tex. Civ. 216. see 27 S. W.
926, and Texas etc. By. v. Carr (Tex. Civ.), 42 S. W. 126, all reaffirm-
ing rule; Houston etc. By. v. Leslie, 57 Te^. 88, holding plaintiff
could not recover where he jumped from moving train; Houston etc.
By. V. Bichards, 59 Tex. 375, holding section hand could not recover
where he was walking on track; Gulf etc. By. v. Killebrew (Tex.
Sup.), 20 S. W. 184, holding charge on contributory negligence
unnecessary where question of want of ordinary care not raised by
testimony; Boyd v. Burkett (Tex. Civ.), 27 S. W. 224, holding plain-
tiff cannot recover if contributory negligence was proximate cause
of injury, though defendant negligent; Dallas Traction By. v. Hurley,
10 Tex. Civ. 251, 31 S. W. 75, holding no contributory negligence
where plaintiff drove across track; Texas etc. By. v. Breadow (Tex.
Civ ), 35 S. W. 492, holding, where evidence shows no contributory
negligence, charge that contributory negligence proximately con-
tributing to injury would defeat recovery is properly refused.
A Common Carrier must use the greatest degree of care and pru-
dence toward passengers.
Approved in Galveston etc. By. r. Thornsberry (Tex. Sup.), 17 S.
W. 523, reaffirming rule; Dallas etc. By. Co. v. Broadhurst, 28 Tex.
Civ. 635, 68 S. W. 318, upholding charge that street railway owed
passengers duty of exercising "great care and caution" to keep cars
in reasonably safe condition, and in their operation; Gulf etc. By. v.
Buford, 2 Tex. Civ. 117, 21 S. W. 273, holding no error in charge
where doctrine of comparative* negligence is corrected by another
charge; Texas etc. By. v. Lee, 21 Tex. Civ. 176, 51 S. W. 352, holding
carriers should stop reasonably long enough to allow passengers to
alight; Jerolman v. Chicago etc. By., 108 Iowa, 179, 78 N. W. 856,
holding corporation liable where it did not have platform lighted
and balustraded.
Distinguished in Gulf etc. By. r. Butcher, 83 Tex. 316, 18 S. W. 587,
holding corporation only bound to use ordinary care in making its
platforms reasonably safe; Gulf etc. By. v. Smith, 87 Tex. 353, 28
S. W. 522, holding corporation not bound to use great care toward
people crossing its tracks.
Where Brakeman Undertook to assist passenger from train, he was
not acting outside of his duty, and common carrier is liable for his
acts.
Distinguished in Texas etc. By. v. Geiger, 79 Tex. 21, 15 S. W.
216, holding engineer could recover where train was running at high
speed under orders, and over defective track. See notes, 55 Am.
Dec. 670, 671.
Where Passenger Claimed He had not Snfficlent Time to alight
and was forced from train by employees while train was in motion,
question of negligence is for jury.
See note, 21 L. B. A. 364.
811 NOTES ON TEXAS EEPOETS. 49 Tex. 582-603
49 Tex. 582-603, WILLIAMS v. OONaEB.
Where Instmmeiit Offered was an old faded paper and free from
erasure and alteration, it was no error to allow it to go to jury.
Approved in Beaumont Pasture Co. v. Preston, 65 Tex. 451, holding
issue of genuineness of paper should go to jury when party offering
it raises issue; Kansas etc. Life Ins. Co. v. Coalson, 22 Tex. Civ.
68, 54 S. W. 319, holding alteration of insurance application can be
attacked in absence of plea asserting it; St. Louis etc. Ry. v. Shiflet,
94 Tex. 141, 58 S. W. 948, applying rule where evidence is not con-
elusive to assume jury could not have found to contrary.
Where Ancient Instnunent is offered in evidence and admitted and
parties claiming under it have acted upon it, its due execution may
be warranted from the facts.
Approved in Cox v. Cock, 59 Tex. 524, hplding no error to admit
deed when its execution is proved; Harrison v. McMurray, 71 Tex.
129, 8 S. W. 615, holding execution of deed by attorney valid after
thirty years. See note, 35 L. B. A. 341, 342.
Where, in an Action of Trespasa to try title, it was unnecessary
for court to give any instruction on limitation, such instruction is
no ground for reversal.
Approved in Galveston etc. B. B. v. Delahunty, 53 Tex. 212, where
erroneous charge operates no injury, no ground for reversal; Bosen-
thal V. Middlebrook, 63 Tex. 338, holding instructions must be con-
sidered in connection with issue and evidence; Mariposa etc. Cattle
Co. V. Silliman (Tex. Civ.), 32 S. W. 844, holding charge that failure
to bring suit does not bar party of legal title unless land adversely
occupied for statutory period not erroneous as being upon weight
of evidence.
Where There has not Been Adverse possession sufficient to support
plea of limitation, mere failure to pay taxes or laches will not bar
recovery by legal owner.
Approved in Horst v. Herring (Tex. Sup.), 8 S. W. 308, and David-
eon V. Wallingford (Tex. Civ.), 30 S. W. 290, both reaffirming rule;
Wooldridge v. Hancock, 70 Tex. 21, 6 S. W. 821, holding failure to
sue not a bar to legal title; Higgins Oil & Fuel Co. v. Snow, 113
Fed. 436, where complainant's title is legal one capable of being
established at law, question of laches does not apply; Henderson v.
Beaton, 1 Posey U. C. 31, holding rule not applicable where no
adverse possession long enough to support plea of limitation; Murphy
V. Welder, 58 Tex. 241, 242, holding plea of stale demand not a bar to
recovery by holder of legal title.
Distinguished in Moss v. Berry, 53 Tex. 633, holding legal owner
can recover after twenty-two years, where sale was made under .
insufficient power; Satterwhite v. Bosser, 61 Tex. 172, holding doc-
trine of stale demand not applicable to legal title; House v. Brent,
69 Tex. 31, 7 S. W. 68, holding no limitation barring recovery where
no acquiescence in claimant's title; Lenon v. Waker, 2 Posey U. C.
576, holding outstanding titles not barred by lapse of time.
Judgment will be Beversed where improper issue was submitted,
and jury may have found verdict upon such issue.
Approved in Galveston etc. By. v. Sullivan (Tex. Civ.), 42 S. W.
569, reaffirming rule.
Miscellaneous. — Hudson v. Morriss, 55 Tex. 610, holding judgment
in favor of intervener will be reversed where issues were same as
in judgment against plaintiff; Williams v. Conger, 125 U. S. 399, 8
49 Tex. 603-613 NOTES ON TEXAS EEPOBTS. 812
Sup. Ct. Hep. 934, 31 L. 781, referring to former appeal in state
court, in stating history of the ease.
49 Tex. 603-613, DUNCAN v. VEAL.
Wliere Petltioii Does not Aver some special necessity for granting
letters of administration, it must be presumed that there waa no
occasion for it after lapse of time from decedent's death.
Approved in Wright v. Smith, 19 Nev. 148, 7 Pac. 368, holding
court could not grant administration upon decedent's estate to cred-
itor without proof of indebtedness; Paul v. Willis, 69 Tex. 265, 7
S. W. 359, holding reopening of administration seven years after last
order not tolerated.
Distinguished in Shirley v. Warfield, 12 Tex. 456, 34 8. W. 392,
holding appointment of administrator valid where decedent was
immigrant after war; Anderson v. Lockhart, 2 Posey U. C. 70, hold-
ing court could not authorize sale not warranted by record; Baker
V. De Zavalla, 1 Posey U. C. 637, holding payment of debts cannot
be presumed where record shows they exist.
After Lapse of Great Lengtb of time from decedent's death, no
debts can be presumed to be due by or to decedent's estate.
Distinguished in McCamant v. Boberts, 80. Tex. 327, 15 S. W. 584,
holding no error to presume debts where administration was granted
two years after death; Summerlin v. Rabb, 11 Tex. Civ. 55, 31 S. W.
713, debt incurred twenty-five years after death of intestate soldier
for expense of procuring donation land certificate forms no basis for
administration.
Wliere Decedent had Neither domicile nor property at date of
his death, in county where letters of administration were issued, the
letters issued would be void for want of jurisdiction.
Distinguished in Brockenborough v. Melton, 55 Tex. 501, holding
grant of administration de bonis non of one county not void by
reason of administration in another; Chapman v. Brite, 4 Tex. Civ.
511, 23 S. W. 516, holding order appointing administrator can only
be collaterally attacked when record discloses court had no jurisdic-
tion to make appointment.
Where Administration npon Estate was not for those interested
in it, it was error to grant letters of administration.
Approved in Chinn v. Taylor, 64 Tex. 390, applying rule where
suit to quiet title is brought; Stone Land etc. Co. v. Boon, 73 Tex.
554, 555, 11 S. W. 546, holding no error to hold title of intervener
obtained at probate sale fifteen years after death void; Templeton v.
Falls Land etc. Co., 77 Tex. 58, 13 S. W. 966, applying rule to admin-
istration for benefit of purchaser.
Where Probate Sale of Certificate of headright did not follow the
statute, it was void.
Approved in McMaster v. Childress, 10 Tex, Civ. 96, 30 S. W.
844, holding probate sale invalid where it does not follow statutory
conditions; Aspley v. Murphy, 50 Fed. 379, 380, holding legislature^
in using words of repealing statute, intended to repeal all general
laws and not statutes conferring special jurisdiction; Aspley v. Mur-
phy, 52 Fed. 572, affirming 50 Fed. 379, letters will not be granted
when there appears no necessity for them. See note, 46 Am. Dec.
438.
813 NOTES ON TEXAS REPORTS. 49 Tex. 613-633
49 Tex. 613-618, CA8SEDAT y. N0BBI8.
Where United States Marshal sold lands in Bell county which had
been levied on in McLennan county, sale was void.
Approved in Sinclair v. Stanley, 64 Tex. 72, 73, holding sale by
United States marshal not in conformity with statute as void; Yiet-
zen V. Otis, 46 Wash. 406, 90 Pac. 266, and Short v. Hepburn, 75 Fed.
115, both holding sheriff's sale of land outside his county is void.
See note, 33 L. R. A. 85.
Distinguished in James v. Koy (Tex. Civ.), 59 8. W. 297, holding
rule not applicable to sale by assignee of bankrupt. See note, 84
Am. Dec. 604.
49 Tex. 619-627, HEASNE v. GABBETT.
Meaeore of Damage for wrongful discharge under contract of
employment is loss sustained by discharge, and pro rata payment for
services rendered, taking contract as standard for value of services.
Approved in Rogers v. McGuffey, 96 Tex. 567, 74 S. W. 754, damage
for breach of contract leasing land to plaintiff on shares is value of
his share of crop which he could have made, less proper deductions;
Loyd V. Capps (Tex. Civ.), 29 S. W. 506, holding measure of damage
for eviction in breach of contract of lease where no rent paid is
difference between agreed rent and value of use of land; South-
western Tel. etc. Co. v. Bross (Tex. Civ.), 45 S. W. 178, holding
burden of proving that plaintiff could or had obtained employment
after wrongful discharge under contract of hire is on defendant.
See note, 6 L. R. A. (n. s.) 84, 116.
Where Employee is Dischafged after part performance of a con-
tract on his part, he may wait until expiration of term of employ-
ment and recover entire amount stipulated.
Approved in Massie v. State Nat. Bk., 11 Tex. Civ. 282, 32 S. W.
798, holding where lessee fails to keep contract lessor must sue for
entire rent; Duncan v. Johnson (Tex. Civ.), 59 S. W. 46, holding
error to charge party liable for full contract price where he fails
to furnish materials to complete contract. See notes, 43 Am. Dec.
205, 210, 213; 6 L. R. A. (n. s.) 52; 5 L. R. A. (n. s.) 452.
Damages for Wrongful Discharge are not recoverable in absence
of showing of value of services actually performed, or value of
amount which employee might have realized had he been permitted to
complete contract.
See note, 6 L. R. A. (n. s.) 92.
Employee cannot Becoyer for Breach of €k>ntract of employment
withovt showing he could not have obtained employment by exercise
of diligence.
See note, 6 L. R. A. (n. s.) 109, 110.
bn Breach of Contract of Employment for stipulated term, employer
eannot set up contract as bar to action for value of services per-
formed.
See note, 5 L. B. A. (n. s.) 586.
49 Tez. 627-633, SAMPSON V. .WYETT.
Judgments of Courts of Becord become dormant unless execution
issue within twelve months after entry of judgment.
Approved in Gabel v. McMahan, 1 Tex. Ap. Civ. 392, holding on
failure to issue execution within one year from date the judgment
becomes dormant.
Miscellaneous. — Miscited in Locker v. Miller, 59 Tex. 500.
49 Tex. 633-681 NOTES ON TEXAS REPORTS. 814
49 Tex. 633-643« WHITTENBEBG v. IiLOTD.
It is not Error to allow writ of attachment to be amended hv clerk
affixing seal thereto after motion to quash has been sustained.
Approved in Whi taker v. Sanders (Tex. Civ.), 52 S. W. 639, holding
where writ of sequestration properly tested^ and parties before court,
clerk was properly permitted to indorse upon writ nunc pro tune
date of issuance.
Where One Voluntarily Sold his homestead, expecting to invest
the proceeds in purchasing a new homestead, the proceeds are not
exempt from execution.
Approved in Mann v. Kelsey, 71 Tex. 612, 10 Am. St. Rep. 802, 12
S. W. 44, holding proceeds of voluntary sale of homestead subject to
execution; Kirby v. Giddings, 75 Tex. 681, 13 S. W. 28, holding home-
stead acquired with proceeds of sale of former homestead exempt;
Moore v. Perry, 13 Tex. Civ. 210, 35 S. W. 840, holding judgment
by default not void when citation served did not have seal of court.
See note, 19 L. B. A. 37.
Distinguished in Blum v. Light, 81 Tex. 419, 16 S. W. 1091, holding
proceeds of voluntary sale of homestead conveyed to wife as consid-
eration of making sale exempt from execution; Cameron v. Fay, 55
Tex. 62, holding proceeds of insurance policy on homestead exempt
for reasonable time; Hunter v. Wooldert, 55 Tex. 436, holding pro-
ceeds of sale of homestead by trustee exempt for reasonable time;
Schneider v. Bray, 59 Tex. 673, 674, holding homestead obtained
by transfer of homestead exempt; Kingsland v. McGowan, 3 Tex.
Ap. Civ. 58, holding proceeds of exempt corn liable to garnishment
where owner had not taken steps to reinvest proceeds in other com;
Jones V. Whiteselle (Tex. Civ.), 29 S. W. 178, holding insurance on
homestead exempt from claims of gei:eral creditors.
49 Tex. 643-644, TBIGO y. STATE.
An Appeal can be Taken from a judgment removing county attor-
ney from office.
Approved in State v. De Gress, 53 Tex. 39S, applying rule where
suit was instituted against mayor.
It Seems That Where a clause of constitution of 1876 and one of
constitution of 1869 are very similar, the supreme court will follow
former decisions in construing it.
Approved in Daniel v. Hutcheson, 4 Tex. Civ. 245, 22 S. W. 280,
holding provisions of constitution defining jurisdiction of district
court simply readoption of former similar provision, and to be con-
strued im same manner.
49 Tex. 645-681, TBIGO y. STATE.
Allegations of Arrest and assault are unnecessary in petition seek-
ing to have officer removed for habitual drunkenness.
Approved in State v. Savage, 89 Ala. 6, 7 So. 8, 7 L. B. A. 426,
holding iBpecific instances of drunkenness not necessary to be charged;
Campbell v. Jones, 2 Tex. Civ. 265, 21 8. W. 724, holding jury must
determine whether a person is habitual drunkard.
Charges for Bemoval of judge from office may be made by a re-
lator if the charge is in proper form and authorized by court.
Approved in Smith v. Brennan, 49 Tex. 682, following rule.
Distinguished in Seay v. Hunt, 55 Tex. 558, holding removal of
mayor by city council not subject to revision by quo warranto.
815 NOTES ON TEXAS REPORTS. 49 Tex. 683-697
In Petition Seeking removal of officer from office, acts transpiring
between the election and his induction in office would be corrected
by special exceptions.
Approved in Brackenridge v. State, 27 Tex. Ap. 530, 11 S. W. 632,
holding judge liable for collecting excess fees when he has qualified
after election.
Wliere Opinions of Gonrt, for removal of judges, were decided
before constitutional convention, the convention ia considered to
have adopted what supreme court considered a» essential in enforc-
ing the statute. ^
Approved in City of Tyler v. St. Louis etc. Ry. Co., 99 Tex. 498,
91 S. W. 3, construing statute of frauds; Scott v. State, 6 Tex. Civ.
345, 25 S. W. 338, holding construction of statutes by supreme court
will stand if legislature makeg no changes; Cline v. State, 36 Tex. Cr.
366, 37 S. W. 729, holding construction of term "jeopardy," settled
by courts before adoption of constitution, is presumed to have same
construction on adoption of constitution.
Gonstitatlonal Provision Relating to Removal of county attorneys
is self-executing.
Approved in Halsey v. City of Belle Plaine, 128 Iowa, 471, 104 N.
W. 495, Const., art. 11, sec. 3, prohibiting muilicipal corporations
from becoming indebted in amount in excess of five per cent of
taxable values, is self -executing.
Court may Request Private Attorney to represent state in quo
warranto.
Approved in State v. Box, 34 Tex. Civ. 436, 78 8. W. 983, uphold-
ing proceeding for removal of sheriff from office brought in name of
state by individual as relator, though private attorney signed repli-
cation.
Instance of Snfficiency of Allegations of misconduct by county
attorney in accusation for removal.
Cited in State v. Richardson, 16 N. D. 7, 109 N. W. 1029, upholding
sufficiency of accusation for removal of county commissionerflr for
presentation and collection of illegal claims against county.
49 Tez. 683-691, JONES ▼. JONES.
Where Petition for specific performance does not present in clear
and distinct terms the consideration for the contract sought to be en-
forced, it is defective.
Approved In Guadalupe Co. v. Johnston, 1 Tex. Civ. 716, 20 S. W.
834, holding petition defective which fails to state what was to be
performed; Bondies v. Ivey, 15 Tex. Civ. 294, 39 S. W. 158, applying
rule where defendants attempted to prove equitable title by parol
sale but not by direct proof. See note, 19 L. R. A. (n. s.) 179.
49 Tex. 691-697, 30 Am. Rep. 112, CRUTCHFIELD v. DONATHON.
Where Action to Recover purchase price is brought upon promissory
note, given by vendee, the vendee cannot avoid the note, because he
has not bound the vendor.
Approved in Anderson v. Tinsley (Tex. Civ.), 28 S. W. 122, reaf-
firming rule; Morris v. Gaines, 82 Tex. 257, 17 S. W. 539, fact that
vendee in verbal contract for purchase of land in part payment of
price verbally agreed to pay one thousand dollars in consideration
of sale makes contract within statute of frauds; Watson v. Baker,
71 Tex. 747, 751,. 9 S. W. 868, 870, holding telegram and letters
sufficient to bind party charged; Bufford y. Ashcroft, 72 Tex. 106^
49 Tex. 697-712 NOTES ON TEXAS REPOBTS. fil6
10 S. W. 347, holding purchaser cannot defeat agreement when deed
was ready but not delivered; Foster v. New York etc. Land Co., 2
Tex. Civ. 514, 22 S. W. 263, holding vendor must accept in writing
vendee's proposal; Busby v. Bush, 79 Tex. 663, 15 S. W. 641, holding
statute not applicable to suit on notes given for purchase price of
land. See note, 18 L. H. A. 142.
Distinguished in Commack v. Prather (Tex. Civ.), 74 8. W. 355,
where description of land in contract of sale patently ambiguous,
writing did not take parol contract out of statute of fraud where
writing not unconditional promise to pay balance of price; League
V. Davis, 53 Tex. 14, holding employers cannot complain of verdict
when they fail to plead statute; Bondies v. Ivey (Tex. Civ.), 31 S.
W. 244, holding burden on defendant in trespass relying on oral
contract to convey to establish contract; Johnson v. Portwood, 89
Tex. 245, 34 S. W. 598, holding vendor cannot be bound to convey
in absence of memorandum of agreement; Moore v. Powell, 6 Tex.
Civ. 49, 25 S. W. 474, holding vendee not bound by memorandum
signed by vendor.
Where Vendor Tenders deed, vendee cannot plead want of eon-
sideration of action on note given for purchase price.
Distinguished in Schierman v. Beckett, 88 Ind. 55, holding vendee
cannot plead want of consideration when he rejects offered perform-
ance. See note, 47 Am. Rep. 532.
49 Tez. 697-705, ELWELL y. ANDEBSON.
Where Appellants File Affidayit, deposing they were too poor to
give bond required by statute, the affidavit does not meet statutory
requirements, and motion to dismiss will be granted.
Approved in Stamps v. McClelan, 1 Tex. Ap. Civ. 408, holding aflB-
davit deposing inability to give bond not sufficient; Young v. Bick-
ley, 1 Tex. Ap. Civ. 606, holding aflRdavit deposing inability to give
appeal bond by reason of poverty not sufficient.
Mortgagee is Proper Party in suit to foreclose lien against parties
in possession of land.
Approved in Oxsheer v. Watt (Tex. Civ.), 42 S. W. 123, holding
purchaser in possession proper party in suit to foreclose mortgage.
49 Tez. 705-712, AMES y. HUBBY.
Where Lands were Qiyen by the government to one who was in
battle of San Jacinto, and the interest was restricted from sale during
lifetime of grantee, his presumptive heir takes no estate in land
acquired.
Approved in Todd v. Masterson, 61 Tex. 626, holding restriction of
alienation by statute applies to heirs of deceased persons.
Land Oiyen by the Oovemment to One who fought in certain
battles is a gift and not community property.
Approved in Samuelson v. Bridges, 6 Tex. Civ. 428, 25 S. W. 637,
holding conveyance of land under promise of gift is separate prop-
erty of donee; State v. Zanco, 18 Tex. Civ. 128, 44 S. W. 528, holding
certificates of headrights, given under statute for services rendered,
proper assets in hands of administrator; Kircher v. Murray, 54 Fed.
622, 623, 624, holding bounty warrants for land are community prop-
erty. See notes, 126 Am. St. Bep. 116; 96 Am. St. Rep. 922.
Distinguished in Nixon v. Wichita Land etc. Co., 84 Tex. 411, 19
S. W. 561, holding donations to volunteers under statute community
property, when acquired by onerous title.
«17 NOTES ON TEXAS REPORTS. 49 Tex. 715-748
Where Grantee Leased Land for ninety-nine years, to evade the
inhibition of alienating, the lease was void.
Approved in Williams v. Wilson, 76 Tex. 71, 13 S. W. 49, holding
lease of land for three generations is a conveyance restricted by
statute.
49 Tex. 715-748, aUTLFORD y. LOVE.
Where There is an Order of Court that is a link in chain of title,
court cannot exclude it, because there may be another to destroy
It as evidence.
Approved in Bowles v. Beal, 60 Tex. 325, holding error for court
to exclude deed which was link in chain of conveyances; Lee v. Wil-
kins, 1 Posey U. C. 299, holding partial transcripts of attachment
proceedings admissible.
Where Suit is Brought by a person holding a bond for title to
land against an estate, it is not necessary that the heirs should be
cited and made parties.
Approved in Moore v. Stewart (Tex. Sup.), 7 S. W. 776, reaffirming
rule; Brockenborough v. Melton, 55 Tex. 503, holding heir cannot
claim title to property sold by administrator de bonis non; Cuney y.
Shaw, 56 Tex. 438, holding administratrix could bind neirs in de-
fending foreclosure suit.
Distinguished in Pilcher v. Kirk, 55 Tex. 213, holding heir could
recover, notwithstanding there were other heirs not parties to suit.
County Court was a Court of record of general jurisdiction in all
matters relating to the administration of the estates of deceased
persons.
Approved in Miller y. Foster (Tex. Sup.), 12 S. W. 123, reaffirm-
ing rule; Boggess y. Brownson, 59 Tex. 418, 420, holding administra-
tor can alone maintain suit to try trespass to title; Wright v. Dunn,
73 Tex. 295, 11 S. W. 330, holding agreement vesting entire estate
signed by all heirs except one binding upon signers; Lawson v. Kel-
ley, 82 Tex. 462, 17 S. W. 717, holding judgment against adminis-
trator conveyed title against heirs; Jack v. Cassin, 9 Tex. Civ. 230,
28 S. W. 833, holding heir bound by contract made by administrator
when confirmed by court; Williams y. Howard, 10 Tex. Civ. 534, 31
S. W. 839, holding heir bound by contract of administrator, when
approved by court; Bennett y. Bennett, 65 Neb. 435, 91 N. W. 410,
in suit by guardian appointed by county court, petition need not
allege that guardian duly appointed nor set up facts showing that
county court acquired jurisdiction to make appointment.
Distinguished in Budd v. Johnson, 60 Tex. 92, holding judgment
against administrator not a bar to suit by heirs to recover community
interest; Gunter y. Fox, 51 Tex. 388, holding judgment against ad-
ministrator binding on heirs not party to action; Miller v. Foster,
76 Tex. 488, 13 S. W. 532, holding heirs not necessary parties in suit
to set aside will when represented by executor.
Where Order Confirming sale made by a probate court having
jurisdiction is collaterally attacked in a proceeding, the legal effect
of the judgment of the probate court is the same as a court of record
of general jurisdiction.
Approved in Burns v. Barker, 31 Tex. Civ. 83, 71 S. W. 329, judg-
ment of justice's court reciting defendants duly and legally cited not
collaterally attackable by showing service had on legal holiday;
I Heath v. Garrett, 50 Tex. 268, holding judgment on validity of
I 2 Tex. Note6~52
I
49 Tex. 715-748 NOTES ON TEXAS BEPOBTS. 818
claim in probate proceedings could not be attacked collaterally;
Fitch V. Boyer, 51 Tex. 344, holding evidence aliunde not admitted
to contradict jurisdiction of court in rendering valid judgment;
Johnson y. Wilcox, 53 Tex. 421, holding decree valid when no pro-
ceeding was made to attack it; Murchison v. White, 54 Tex. 82,
83, holding judgment of probate court cannot be collaterally attacked
where its proceedings appear regular; Fowler v. Stagner, 55 Tex.
397, holding decree admitting will to probate of county court having
jurisdiction of probate proceedings cannot be impeached collaterally;
Bobertson y. Johnson, 57 Tex. 64, holding guardian's sale cannot
be set aside so as to defeat jurisdiction of court; Heath v. Layne,
62 Tex. 691, applying rule where suit was brought in district court
to annul judgment of county court; Gill en waters v. Scott, 62 Tex.
673, holding sale valid when confirmed by court having power to
confirm it; Tom v. Sayers, 64 Tex. 343, holding validity of order of
probate court could not be ' collaterally attacked; Neal v. Bartleson,
65 Tex. 486, holding decrees of county court affirming probate sale
cannot be questioned; Martin v. Bobinson, 67 Tex. 374, 3 8. W. 553,
holding decree of county court confirming probate sale cannot be
attacked collaterally; Louder v. Schluter, 78 Tex. 106, 14 S. W. 205,
holding confirmation of sale cannot be impeached where order was
made upon proper application; Weems v. Masterson, 80 Tex. 52,
15 S. W. 591, holding sale by guardian binding upon ward when prop-
erly confirmed; Harris v. Shafer (Tex. Civ.), 21 S. W. 113, holding
agent's authority will be presumed if necessary to support confirma-
tion of administrator's sale made through agent; Chapman v. Brite,
4 Tex. Civ. 511, 23 S. W. 516, holding appointment of administrator
cannot be attacked collaterally; Perry v. Blakey, 5 Tex. Civ. 337, 23
S. W. 807, holding confirmation of probate sale cannot be collaterally
attacked; Halbert v. Carroll (Tex. Civ.), 25 S. W. 1103, holding judg-
ment of probate court having jurisdiction is not collaterally attack-
able; Cassels v. Gileson (Tex. Civ.), 27 8. W. 726, holding adminis-
trator's sale for cash when probate law required sale to be on credit
is not collaterally attackable; Halbert v. De Bode (Tex. Civ.), 28
S. W. 60, holding contract made by administrator and approved by
court cannot be attacked in collateral proceedings; Salmon v. Huff,
9 Tex. Civ. 167, 28 S. W. 1045, holding order admitting will to pro-
bate cannot be collaterally attacked; Dickson v. Moore, 9 Tex. Civ.
518, 30 S. W. 79, holding confirmation of sale of headright cannot
be attacked collaterally; Halbert v. Martin (Tex. Civ.), 30 S. W. 389,
holding acts of person acting and considered as administrator for
long time are not collaterally attackable; Williams v. Howard, 10
Tex. Civ. 533, 31 S. W. 838, holding appointment of administrator
de bonis non cannot be attacked collaterally; Hambel v. Davis (Tex.
Civ.), 33 S. W. 251, holding judgment of court having jurisdiction,
where record is silent, is presumed valid on collateral attack; Bu-
chanan V. Park (Tex. Civ.), 36 S. W. 808, holding probate court has
no jurisdiction to compel specific performance of contract to convey
land in ex parte proceeding; Halbert v. De Bode, 15 Tex. Civ. 623,
40 S. W. 1014, holding appointment of administrator pro tem cannot
be collaterally attacked; Driggs v. Grantham (Tex. Civ.), 41 S. W.
411, upholding admissibility in evidence in trespass to try title
of order of sale not declaring ground of necessity for sale; Strick-
land V. Sandmeyer, 21 Tex. Civ. 353, 52 S. W. 88, holding appoint-
ment of administrator de bonis non cannot be collaterally attacked;
819 NOTES ON TEXAS BEPOBTS. 49 Tez. 748-762
Baker v. De Zavalla, 1 Posey XT. C. 632, holding jurisdiction of pro-
bate court cannot be collaterally attacked if not negatived by record;
Bowser y. Williams, 6 Tez. Civ. 202, 25 S. W. 455, holding district
court could not vacate judgment after jurisdiction was transferred
to county court; Martin v. Bums, 80 Tex, 678, 16 S. W. 1072, hold-
ing judgment rendered upon valid citation cannot be attacked col-
laterally; Lawson v. Moorman, 85 Ya. 886, 9 S. E. 152, holding judg-
ment of court of general jurisdiction not subject to collateral attack;
Loyd V. Waller, 74 Fed. 606, holding order appointing administrator
de bonis non by court of competent jurisdiction cannot be attacked
collaterally; Bradford v. Sogers, 2 Posey U. C. 60, holding judgment
of court having jurisdiction cannot be collaterally attacked where
it recited parties were duly cited. See notes, 21 L. B. A. 682; 11
L. B. A. 158.
Distinguished in Pelham v. Murray, 64 Tez. 481, holding constitu-
tion conferred general jurisdiction on district court in matters of
probate; McNally v. Haynes, 59 Tez. 585, holding jurisdiction of
probate court attaches when estate is properly opened; McNally v.
Haynes, 59 Tez. 586, holding sale of land valid where court did
transcend its jurisdiction; Anderson v. Lockhart, 2 Posey U. C. 70,
holding judgment of probate court subject to revision where it lacks
authority to make sale.
Wlier« a Court of Minor Grade with inferior jurisdiction or a court
of general jurisdiction has special jurisdiction, facts must be averred
to give court jurisdiction.
Approved in Chrisman v. Graham, 51 Tez. 457, applying rule where
petition did not aver facts to give special jurisdiction; Williams
V. Ball, 52 Tez. 607, 608, 36 Am. Bep. 731, holding judgments of
justice of peace cannot be collaterally attacked for not showing
facts to give court jurisdiction; Watkins v. Davis, 61 Tez. 415, hold-
ing no error to ezclude evidence seeking to impeach judgment of
justice of peace; Fannin Go. v. High tower, 9 Tez. Civ. 298, 29 S. W.
189, holding mandamus will not lie to compel district court to try
case over which it has no jurisdiction.
Distinguished in Wakefield v. King, 2 Tez. Ap. Civ. 611, applying
rule where judgment of justice court showed citation was issued
and ezecuted; Williamson v. Wright, 1 Posey XJ. C. 718, holding
judgment of court of competent jurisdiction not limited to pleadings
on collateral attack. See notes, 56 Am. Dec. 48; 56 Am. Dee. 58;
58 Am. Dec. 134; 65 Am. Dec. 186; 67 Am. Dec. 698; 70 Am. Dec.
322; 80 Am. Dec. 649; 86 Am. Dec. 653; 86 Am. Dec. 654; 91 Am. Dec.
347.
49 Tex. 748-762, SO Am. Bep. 116, HOUSTON ETC. BY. ▼. ADAMS.
Where Common Carrier Delivered goods to stranger who had no
receipt or bill of lading for them, consignee can recover for their
loss from the common carrier.
Approved in G. C. etc. Ey. v. Freeman, 4 Tez. Ap. Civ. 420, 16 S.
W. 109, holding no obligation to deliver goods where consignee has
no bill of lading; Gulf etc. By. v. Fowler, 12 Tez. Civ. 688, 34 S. W.
663, holding no obligation to deliver horse when owner and not
consignee demanded it; Tezas etc. By. v. Martin, 2 Tez. Ap. Civ.
297, holding common carrier liable for full amount, when only part
of the goods are delivered; G. C. etc. By. v. Clark, 2 Tez. Ap. Civ.
461, holding consignee not bound to accept goods ezcept at place of
49 Tex. 763-764 NOTES ON TEXAS EEPORTS. 820
delivery; Trice v. Miller, 3 Tex. Ap. Civ. 533, holdings common carrier
liable where he delivered trunk to hotel-keeper where consignee was
stopping; Cleveland etc. Ry. Co. r. C. & A. Potts & Co., 33 Ind.
App. 574, 71 N. E. 689, delivery of goods at wrong place without
fault of consignor constitutes conversion which deprives carrier of
exemption from liability by consignor's failure to present verified
claim for damages within ten days; dissenting opinion in Clegg v.
. Southern Ry. Co., 135 N. C. 155, 47 S. E. 670, 65 L. R. A. 717, majority
holding where railroad refused to deliver goods to owner because
he would not pay amount of freight demanded, which was in excess
of that due and offered, fact that at time of demand bill of lading
not yet transferred by consignee no defense; Little Rock etc. Rail-
way V. Glidewell, 39 Ark. 490, holding consignee can recover where
goods are negligently delivered to stranger. See note, 37 L. R. A.
180.
Distinguished in Houston etc. R. R. r. Hogg, 2 Posey U. C. 548,
holding common carrier liable for difference in value of goods when
received and when delivered, where consignee had no notice of their
arrival.
Where Common Carrier Delivered goods to a stranger, the statute
of limitation would not run against consignee until he had notice
of their conversion.
Approved in Gulf etc. Ry. r. Humphries, 4 Tex. Civ. 335, 336, 23
S. W. 556, 557, holding statute of limitation for conversion of goods
runs from time owner receives notice. See notes, 2 Am. St. Rep. 238;
4 Am. St. Rep. 628; 9 Am. St. Rep. 479; 9 Am. St. Rep. 514; 34 Am.
St. Rep. 556; 17 L. R. A. 696.
49 Tez. 763-764, STATE ▼. BAKEB.
Where State Brought Suit for amount of taxes assessed in bulk,
together with interest, the petition was dismissed, court holding tax
was merely a charge upon each separate piece of property.
Approved in Edmonson y. Galveston, 53 Tex. 161, holding judg-
ment awarding interest upon amount assessed for city taxes against
property invalid; Dallas Title etc. Co. v. Oak Cliff, 8 Tex. Civ. 221,
222, 27 S. W. 1040, holding judgment valid where lots were described
by numbers and blocks; Kerr v. Corsicana (Tex. Civ.), 35 S. W. 697,
holding invalid, street assessment made upon abutting lots en masse;
McCombs V. Rockport, 14 Tex. Civ. 562, 37 S. W. 989, holding judg-
ment invalid where lots had not been assessed separately; Guerguin
V. San Antonio, 19 Tex. Civ. 100, 50 S. W. 141, holding judgment
valid where lots are assessed by numbers and blocks; Harris v.
Houston, 21 Tex. Civ. 433, 52 S. W. 654, majority holding demurrer
to petition properly overruled where petition declared one valuation
for two consecutive lots.
Distinguished in Jodon v. Brenham, 57 Tex. 657, holding judgment
for assessment giving lien on several lots including homestead er>
roneoufiL
Court Intimating, Where Property is Iiisted and assessed by the
owner as a single tract of land, the property is subject to a lien for
AggregsLte tax assessed.
Approved in San Antonio v. Raley (Tex. Civ.), 32 S. W. 184, hold-
ing where owner gives aggregate value of lots assessed, tax sale there-
under is not invalid; Kissimmee v. Drought, 26 Fla. 2, 23 Am. St.
Hep. 547, 7 So. 526, holding party valuing his property in bulk is
821 NOTES ON TEXAS BEPOBTS. 49 Tex. 765-769
estopped from complaining that assessor did same; Parker v. Jack-
sonville, 37 Fla. 351, 20 So. 539, holding judgment valid where lots
were assessed in bulk though numbered consecutively.
49 Tex. 765-767, LOOKABT ▼. STUCKLER.
Suit by Injunction Against a clerk to supersede an execution issued
for costs is to be regarded as a motion to retax costs.
Approved in Wingfield v. Hackney, 30 Tex. Civ. 40, 41, 69 S. W.
447, denying district court's jurisdiction to enjoin execution from
county court because of its invalidity, where there was adequate
remedy by motion to quash in latter c6urt; Ward v. Bees, 11 Wyo.
463, 72 Pac. 582, injunction does not lie to restrain execution where
judgment debtor claimed costs taxed as part of judgment were
illegal; Missouri etc. By. v. Crane (Tex. Civ.), 32 S. W. 13, holding
appellate court will not reconsider retaxation of costs until action
is taken thereon in trial court; Citizens' Nat. Bank v. Interior Land
etc. Co., 14 Tex. Civ. 304, 305, 37 S. W. 448, 449, holding injunction to
prevent sale at execution is in effect motion to quash advertisement;
Lockhart v. Lytle, 51 Tex. 604 (ease is reaffirmed on second appeal);
Wingfield v. Hackney, 95 Tex. 495, 68 S. W. 265, arguendo.
On Injunction to Restrain Execution for Costs, items not complained
of cannot be enjoined nor can auditor be appointed to retax costs.
See note, 30 L. B. A. 139.
49 Tez. 767-769, SO Am. Bep. 122, LACOSTE ▼. DUFFY.
Where Suit for Mandamus was instituted to determine when newly
elected county treasurer took office, it should be dismissed when the
term for which the county treasurer had been elected had expired
before rendering judgment.
Approved in State v. Lyons, 143 Ala. 651, 39 So. 215, where, pend-
ing appeal from denial of mandamus to compel restoration of relator
to office from which he was illegally removed, he was legally re-
moved, appeal dismissed; Bobinson v. State, 87 Tex. 565, 29 S. W.
650, applying rule where term of office of sheriff had expired; Har-
gans V. McClain (Tex. Civ.), 36 S. W. 819, holding suit to remove
person from office properly dismissed on expiration of term of office;
Davis V. San Antonio etc. By., 92 Tex. 648, 51 S. W. 326, holding
sale of all property of corporation does not cancel its stock, and suit
could be brought by such stockholders; McWhorter v. Northcut, 24
Tex. Civ. 22, 57 S. W. 904, applying rule where city marshal was
seeking reinstatement in office; McWhorter v. Northcut, 94 Tex.
87, 58 S. W. 721, applying rule where appellant sought a writ of error
to determine appeal after term of office had expired; Southwestern
etc. Tel. Co. v. Galveston Co. (Tex. Civ.), 59 S. W. 589, holding
appeal from order demanding removal of wires from bridge where
bridge is destroyed; Watkins v. Huff, 94 Tex. 632, 64 S. W. 682,
applying rule in suit for mandamus for payment for services as
teacher when term of service had expired.
Distinguished in Eberstadt v. State, 20 Tex. Civ. 165, 49 S. W.
655, deciding appeal after terms of office have elapsed where peti-
tion charged officers with fraud.
Conrt will not Decide questions of importance after their decision
becomes useless in order to ascertain liability for costs.
Approved in State v. Loomis (Tex. Civ.), 29 S. W. 415, dismissing
appeal where reversal will leave only issue of costs to be deter-
49 Tex. 769-779 NOTES ON TEXAS BEP0ET8. 822
mined; McMeans v. Finiey, 88 Tex. 522, 32 S. W. 525, holding judg-
ment for costs will issue where writs of mandamus are refused;
Bolton y. San Antonio, 4 Tex. Civ. 176, 23 S. W. 280, dismissing ease
without awarding costs after decision became useless.
Distinguished in Schiffer ▼. Fort, 1 Posey U. C. 202, holding party
securing levy which was quashed should pay costs. See note, 89
Am. Dec. 731.
49 Tez. 769-773, THOMPSON t. BIOE.
Motion to Dismiss Writ of error made on ground of laches in not
prosecuting appeal until two* years afterward sustained.
Approved in Swilley v. Blount, 36 Tex, Civ. 584, 82 S. W. 791,
dismissing writ of error where delay of six months after rendition
of judgment in filing petition and further delay of thirteen months
in filing citation; Cotton v. Patterson (Tex. Civ.), 59 S. W. 568,
holding motion to dismiss proper, where no citation in error was
filed until thirteen months after appeal bond.
Distinguished in Overton v. Terry, 49 Tex. 774, overruling motion
to dismiss writ of error where respondent made no objection to delay.
49 Tex. 773-779, OVBETON T. TEBBY.
Where Appellant Failed to Issne citation for one year after judg-
ment, respondent cannot move to dismiss appeal on that gpround
when he has allowed one term of court to intervene.
Approved in Hohenthal v. Turnure, 50 Tex. 4, following rule; First
Nat. Bk. V. Bobertson, 3 Tex. Civ. 153, 24 S. W. 660, applying rule
where appellant has not been guilty of intentional neglect in prose-
cuting writ of error.
Distinguished in Howard v. Malsch, 52 Tex. 61, holding motion to
dismiss appeal on ground bond does not identify judgment can be
filed at ffubsequent term of court when transcript is filed after assign-
ment of case on docket.
NOTES
ONTHB
TEXAS REPORTS.
GASES IN 50 TEXAS.
60 Tez. 1-4, HOHENTHAL ▼. TUBKtJBE.
Jurisdiction of Appellftte Oonrt does not attach for purpose of
adjudicating case until service of citation in error.
Approved in Overton v. Terry, 49 Tex. 776, following rule; Scar-
borough V. Groesbeck (Tez. Civ.), 25 S. W. 687, holding motion to
affirm on certificate will be overruled where certificate shows no
issuance and service of citation; Curlin v. Canadian etc. Mtg. Co.
(Tez. Civ.), 37 S. W. 485, holding court without jurisdiction of case,
unless service of citation made on defendant in error or his repre-
sentative. V
Writ of Error Is Tending" In Appelate Court though appellant
dies before service of citation, so that proper process may issue.
Approved in Western Union Tel. Co. v. Woflford, 32 Tez. Civ. 429,
72 8. W. 621, following rule.
Where Defendant FUed Appeal and bond prior to death and after
administration appellee waived citation of appeal, and no appear-
ance made for plaintiff in error, appellee's* motion to affirm granted.
Approved in dissenting opinion in Bichey v. Seeley, 68 Neb. 137,
97 N. W. 820, majority denying jurisdiction of appellate court
where, after plaintiff's death, defendant appealed and attorneys of
record below filed waiver of summons in error and appeared for
plaintiff.
50 Tex. 5-16, WILSON T. ADAMS.
Where Plaintiff in Error negligently aUows the term of court to
pass, defendant may acknowledge service, and have affirmance on
the certificate.
Approved in Thompson v. Anderson, 82 Tez. 238, 18 S. W. 154,
reaffirming rule; Pickett v. Mead (Tez. Civ.), 25 8. W. 655, overruling
motion to affirm on certificate, where certificate not filed at next
term to which appeal was returnable; Cotton ▼. Patterson (Tez.
Civ.), 59 S. W. 568, where unezcused delay of thirteen months in
issuing citation in error was had after the filing of petition and
bond.
(823)
50 Tex. 17-27 NOTES ON TEXAS BEPOBTa 824
Where More Than Twelve months elapsed before citation issues
on writ of error, defendant cannot invoke jurisdiction of appellate
court.
Approved in Swilley v. Blount, 36 Tex. Civ. 584, 82 S. W. 791,
dismissing writ of error where six months elapsed after rendition
of judgment before filing petition for writ and further delay of
thirteen months in issuing citation; Overton v. Terry, 49 Tex. 776
(case decided at same term), reaffirming rule; Laughlin v. Dabney,
86 Tex. 121, 24 S. W. 259, certificate must be filed at term to which
appeal or writ of error is returnable.
50 Tex. 17-23, SHANKS ▼. CABBOLIk
Failure to Observe prescribed rules for taking appeal to supreme
court is sufficient for dismissal of the appeal or writ.
Approved in Davis v. American Freehold etc. Co., 12 Tex. Giv. 40,
33 S. W. 272, applying rule to appeals to the district court.
Rules of Practice for briefs of appellant or plaintiff in error fully
set forth.
Approved in Vaughn v. G. C. & S. P. By., 3 Tex. Ap. Civ. 279. re-
affirming rule; Cage v. Tucker, 25 Tex. Civ. 50, 60 S. W. 580, holding
assignments of error not in compliance with the rule will not be
considered.
50 Tex. 23-27, PATTEBSON T. AIJ£N.
District Court has jurisdiction of suit against heirs, for ancestor's
debt where there has been no administration or only one debt against
estate, or heirs have by agreement partitioned the estate.
Approved in Solomon v. Skinner, 82 Tex. 347, 18 S. W. 698, Peters
T. Hood, 2 Tex. Ap. Civ. 328, Buchanan v. Thompson, 4 Tex. Civ.
238, 23 S. W. 328, Rogers v. Burbridge, 5 Tex. Civ. 70, 24 S. W.
302, Heard v. McKinney, 1 Posey U. C. 88, and Byrd v. Ellis (Tex.
Civ.), 35 S. W. 1071, all reaffirming rule; Floyd v. Watkins, 34 Tex.
Civ. 6, 79 S. W. 614, though district court judgment against heirs
obtained during time allowed for taking out administration, presumed
on collateral attack that there were no other debts against estate
or necessity for administration existed; McCampbell v. Henderson,
50 Tex. 612, where four years had elapsed from death of testate and
no representative had been appointed to succeed the wife, who had
been sole executrix; Webster v. Willis, 56 Tex. 472, where four years
had elapsed from death of intestate, with no administration there-
on; PuckeH V. Beed, 3 Tex. Civ. 352, 22 S. W. 516, where relief
sought was foreclosure of mortgage on land, which had passed from
intestate during his life; Frost v. Smith (Tex. Civ.), 24 S. W. 41,
holding petition in action against deceased debtor, otherwise proper,,
is not subject to general demurrer because praying for personal
judgment against heirs; Moore v. Moore (Tex. Civ.), 31 S. W. 533,
holding district court may partition estate before expiration of time
for administration, where only one debt against estate.
Verdict Should be Constmed Liberally, so as to stand rather than
fall.
Approved in Dodd v. Gaines, 82 Tex. 432, 18 S. W. 619, reaffirming
rule.
Under the Texas probate system debts are ordinarily collectible
through medium of administration.
Approved in Low v. Felton, 84 Tex. 385, 19 a W. 696, reaffirming
rule. See note in 65 Am. Dec. 140.
825- NOTES ON TEXAS REPORTS. 50 Tex. 27-57
Findings of Jury are presumed to have been with reference to
the pleadings, and the court's charge thereon.
Approved in Marshall v. State, 4 Tex. Ap. 553, and Vincent v.
State, 10 Tex. Ap. 333, both reaffirming rule; Hutto v. State, 7 Tex.
Ap. 47, applying rule to criminal case.
It Seems That Jnrisdictlon may be acquired by supplemental peti-
tion or trial amendment supplying the needed averments.
Approved in Tucker v. Bryan, 1 Tex. Ap. Civ. 659, where defend-
ant dies pending suit, heirs may be made parties by amendment to
the petition.
Under the Statute where there are no creditors, the heirs may
settle the estate without administration.
Cited in Re Higgins, 15 Mont. 502, 39 Pac. 516, 28 L. R. A. 116,
arguendo in case where executor was also acting as tru^ee of testator's
property.
60 Tex. 27-34, MURCHISON ▼. WABBEN.
Failure to Ask Proper instructions does not estop appellant from
complaining of a clearly erroneous verdict.
Explained in Rackley v. Fowlkes (Tex. Civ.), 36 S. W. 76, failure
of court to charge on limitations is not error where no special charge
covering omission was asked.
50 Tex. 34-42, WRIGHT ▼. DOHEBTY.
In Trespass to Try Title, defense of estoppel may be availed of under
plea of not guilty'.
Approved in Scarbrough v. Alcorn, 74 Tex. 360, 12 S. W. 73,
Guest V. Guest, 74 Tex. 666, 12 S. W. 832, and Eddie v. Tinnin, 7
Tex. Civ. 377, 26 S. W. 734, all reaffirming rule; McDow v. Rabb,
56 Tex. 162, defense of estoppel may be availed of without pleading
it specially; Lumkins v. Coates (Tex. Civ.), 42 S. W. 582, holding
all defenses except limitations are available under plea of not guilty
in trespass to try title.
Infants and Married Women are not estopped unless their conduct
has been intentional and fraudulent.
Approved in Bell v. Schwarz, 56 Tex. 357, Armstrong v. Moore,
59 Tex. 648, and Munk v. Weidner, 9 Tex. Civ. 496, 29 S. W. 411,
all reaffirming rule.
Declarations of an Assumed Agent are not generally admissible
to prove such agency.
Approved in Missouri etc. Ry. v. Simons, 6 Tex. Civ. 625, 25 S. W.
998, reaffirming rule.
Children of Deceased Spouse take by inheritance half of homestead
in community property subject to use by survivor.
See note, 56 L. R. A. 46.
60 Tex. 48-48, BBEEN ▼. TEXAS ETC. B. B.
Begulatlon Requiring Stop-orer Checks by passengers on railroad
train is reasonable.
Approved in I. & G. N. R. R. v. Goldstein, 2 Tex. Ap. Civ. 207^
holding regulation requiring passengers to exhibit their tickets rea-
sonable. See notes, 45 Am. Dec. 192; 41 Am. Dec. 480; 61 Am. St.
Rep. 102; 28 L. R. A. 776.
60 Tex. 48-67, IBVIN ▼. OABNEB.
Vendor's Lien Exists for purchase money of land unless expressly
or impliedly waived.
60 Tex. 57-65 NOTES ON TEXAS EEPOETS. «26
Approved in Perry v. Woodson, 61 Tex. 229, Dean ▼. Hudaon, 1
Posey U. C. 370, and Marshall v. Marshall (Tex. Civ.), 42 S. W.
354, all reaffirming rule; Johnson t. Betterton (Tex. Civ.), 25 S. W.
1051, holding waiver of vendor's lien by taking note in place of
vendor's lien must be establiahed by evidence.
Waiter of Vendor's Lien is to be ascertained from facts and cir-
cumstances showing the intention.
Approved in Farmers' etc. Nat. Bank v. Taylor, 91 Tex. 82, 40 S.
W. 880, reaffirming rule; Wilcox v. Hrst Nat. Bank (Tex. Civ.),
52 S. W. 560, holding whether or not vendor's lien has been waived
is question 'of fact for jury; Bice v. Ward (Tex. Civ.), 54 S. W.
321, holding charge that certain acts constitute waiver of equity
of redemption is erroneous as being on weight of evidence.
Vendor's Lien is not Waived by substitution of third pereon as payee
of original purchase money note.
Approved in Glaze v. Watson, 55 Tex. 568, reaffirming rule; Torrey
V. Martin (Tex. Sup.), 4 S. W. 644, holding vendor's lien exists though
note for purchase money given third person instead of vendor. See
note, 99 Am. Dec. 575.
Vendor's Lien is not Waived by subsequent execution of new note
with accrued interest for original note.
Approved in Joiner v. Perkins, 59 Tex. 303, and Dean v. Hudson,
1 Posey U. C. 371, both reaffirming rule.
Vendor's Lien is not Waived by taking deed of trust npon the
land to secure the purchase money note.
Approved dn Taylor v. Fryar, 18 Tex. Civ. 271, 44 S. W. 185, levy
of attachment upon the land by vendor does not waive vendor's lien;
Jackson v. Ivory (Tex. Civ.), 30 S. W. 718, holding vendor's lien
expressly retained by new note is not waived by execution of deed
of trust securing such note.
Verdict Ascertatnlng Principal, rate of interest and date of a note
is sufficiently certain.
Approved in Evans Co. v. Beeves, 6 Tex. Civ. 261, 26 S. W. 222,
reaffirming rule.
Plea That Note Sued on was for different amount and to other per-
son than vendor is a special one placing burden on defendant.
Distinguished in Kansas etc. Ins. Co. v. Coalson, 22 Tex. Civ. 67,
54 S. W. 389, holding plea not necessary where alteration of the in-
strument was apparent.
50 Tex. 67-65, WIGGINS v. FLEISHELL.
Mere Certificate of acknowledgment without statutory filing and
three days' notice to opposite party does not render a deed admissible.
Approved in McFaddin v. Preston, 54 Tex. 407, Golin v. State, 37
Tex. Cr. 101, 38 S. W. 797, and Hogans v. Carruth, 18 Fla. 593, all
reaffirming rule; Allison v. State, 14 Tex. Ap. 426, applying rule to
criminal case.
Grantee cannot Testify to execution of deed without accounting for
absence of subscribing witnesses.
Approved in Texas Land Co. v. Williams, 51 Tex. 59, reaffirming
rule. See note, 35 L. B. A. 323, 324.
Granting of Oontinuance after commencement of trial because of
withdrawal of material witness from courtroom is discretionary.
Approved in Dempsey v. Taylor, 4 Tex. Civ. 130, 23 S. W. 222,
French v. Qroesbeck, 8 Tex. Civ. 20, 27 S. W. 43, and Texas Ex-
S27 NOTES ON TEXAS BEPOBTS. 50 Tez. 65-^8
press Co. v. i^cott, 2 Tex. Ap. Civ. 60, all reaffirming rale; Eldridge
y. State, 12 Tex. Ap. 213, applying role to criminal case.
50 Tex. 65-76, MOODY ▼. AIKSN.
The Intention, When Placing, and relation of article to freehold are
the tests of a removable fixture.
Approved in Harkej v. Cain, 69 Tex. 150, 6 S. W. 639, Missouri
etc. By. V. Cullers, 81 Tex. 389, 17 S. W. 22, 13 L. B. A. 542 j Jones v.
Bull, 85 Tex. 139, 19 S. W. 1032, and Gulf etc. By. v. Dunman, 85 Tex.
182, 19 S. W. 1075, all reaffirming rule; Willis v. Morris, 66 Tex. 632,
59 Am. Bep. 636, 1 S. W. 801, where valuable machinery was placed
on land of small value for purpose of permanent basiness; Copp v.
Swift (Tex. Civ.), 26 S. W. 439, holding intention is controlling test
to determine whether or not personalty attached to realty is fixture;
Menger v. Ward (Tex. Civ.), 28 S. W. 824, holding pre-eminence is
given intention in determining character of fixtures. See note, 42
Am. Bep. 449.
A Fiztnra is not Bemoyable when it is necessary to enjoyment
of the freehold or was erected for the benefit or as an addition to the
inheritance.
Approved in Shelton v. Willis, 23 Tex. Civ. 550, 58 S. W. 178, re-
affirming rule.
A Fixture 1b BemoTable where erected temporarily or for purposes
of trade under agreement or intention not to be a permanent annexa-
tion.
Approved in Phelan v. Boyd (^ex. Sup.), 14 S. W. 294, holding
chattel affixed to realty, removable without consent of land owner,
remains chattel; Ames Iron Works v. Davenport (Tex. Civ.), 24 8. W.
369, holding county court has jurisdiction to foreclose mortgage
on boiler and engine on land, they being removable personalty.
Distinguished ' in Henderson v. Ownby, 56 Tex. 649, 42 Am. Bep.
692, where defendant's tenant claimed superior right to defendant
to remove fixtures erected pending the trespass to try title.
A Oontract for the Sale of a removable fixture, such as a banker's
safe inclosed within walls of vault, is not within statute of frauds.
Approved in Brown v. Boland, 11 Tex. Civ. 650, 652, 33 S. W. 274,
275, reaffirming rule.
50 Tez. 75-77, BBITT ▼. LOWBT.
Where Judgment is for tract of land, two thousand dollars dam-
ages, and one hundred and forty-one dollars costs, an appeal bond
for one thousand dollars is insufficient.
Approved in Piedmont etc. Ins. Co. v. Bay, 75 Ya. 823, reaffirming
rule.
Paschal's Digest, Article 1492, authorizes appeals from district
court on judgments for recovery of land on a bond for costs of suit
and damages on appeal.
Approved in Franklin v. Tiernan, 56 Tex. 622, reaffirming rule.
50 Tez. 77-^8, HOUSTON ETO. B. B. ▼. MEADOB.
Railroad is Liable for failure of construction contractor to place
stock-guards along right of way, so as to preserve inclosures from
damage.
Approved in Texas etc. B. B. v. Dudley, 1 Tex. Ap. Civ. 272, G.
C. A S. F. By. V. Yell, 3 Tex. Ap. Civ. 438, Atlanta etc. B. B. ▼.
50 Tex. 88-99 NOTES ON TEXAS EEPORTS. 82S
Kimberly, 87 Ga. 167, 27 Am. St. Rep. 235, 13 S. E. 278, Taylor etc.
Ry. V. Warner (Tex. Civ.), 31 S. W. 67, and Chicago etc. R. R. t.
Hutchinson, 45 Kan. 187, 25 Pac. 576, all reaflSrming rule; Upham v.
Head, 74 Kan. 20, 85 Pac. 1018, where landlord at tenant's request
undertakes to repair defects in premises, he is liable for injuries to
tenant caused by defective work done by mechanic employed by
landlord; Lasker etc. Assn. v. Hatcher (Tex. Civ.), 28 S. W. 404,
holding lessor liable for damages through negligence of persons sent
by him to repair leased premises; Chicago etc. Ry. v. Yarbrough
(Tex. Civ.), 35 S. W. 423, holding railroad liable for damages caused
by contractor building its railroad in removing fences without con-
structing cattle-guards. See notes, 9 L. R. A. (n. s.) 562; 66 L. R. A.
124, 137; 65 L. R. A. 643; 14 L. R. A. 832.
A Ihity to the PaWc or to an individual cannot be devolved on a
contractor.
Approved in Cunningham v. International R. R., 51 Tex. 513, 32
Am. Rep. 636, Taylor etc. Ry. v. Warner, 88 Tex. 648, 32 8. W. 870,
Texas etc. R. R. v. Johnson, 20 Tex. Civ. 574, 50 S. W. 1045, Gulf
etc. R. R. V. Flake, 1 Tex. Ap. Civ. 100, and G. C. & S. P. Ry. v.
Doran, 2 Posey U. C. 444, all reaffirming rule; Gulf etc. Ry. Co. v.
Chenault, 31 Tex. Civ. 558, 72 S. W. 869, where cattle killed in acci-
dent, railroad liable where its contractor removed carcasses and de-
posited them in such proximity to plaintiff's premises as to become
nuisance; Eberson v. Continental Inv. Co., 118 Mo. Ap. 73, 93 S. W.
299, where lease provided that in event of partial destruction of
building landlord would as speedily as possible restore same, land-
lord liable for contractor's negligence in making necessary repairs;
Woodman v. Metropolitan R. R., 149 Mass. 340, 14 Am. St. Rep. 428,
21 N. E. 483, applying rule to city, ^/Iiere its contractor left an im-
properly guarded excavation while building a sewer. See notes, 76
Am. St. Rep. 409; 14 L. R. A. 832.
Distinguished in East Line etc. Ry. v. Culberson, 72 Tex. 384, 13
Am. St. Rep. 811, 10 S. W. 709, 3 L. R. A. 567, where employee
of lessee of railroad sued the railroad for injuries inflicted by lessee;
Washington v. Texas etc. Ry., 22 Tex. Civ. 191, 54 S. W. 1093, where
the statute authorized railroad to commit the loading of cars to
shippers.
Where a Contractor is employed to commit a trespass, a person
injured thereby may recover damages from either contractor or em-
ployer, or both.
Approved in Cunningham v. International R. R., 51 Tex. 511,
32 Am. Rep. 635, reaffirming rule; Bibb v. Norfolk etc. R. R., 87
Va, 727, 14 S. E. 169, where employee was injured through negligence
of independent construction contractor. See note, 65 L. R. A. 749.
50 Tez. 88-99, BLACK ▼. BOCKMOBK
Sale of Community homestead of insolvent estate, after death of
husband, under power in deed of trust, does not vest title as against
widow's homestead right.
Approved in Tiboldi v. Palms, 97 Tex. 416, 79 S. W. 23, trustee's
sale after administration closed is ineffective as against right of home-
stead in same land set apart by court in such administration; Will-
iams V. Armistead, 41 Tex. Civ. 38, 90 S. W. 926, death of purchaser
of land encumbered by deed of trust revokes trustee's power to sell
pending administration by independent administrator; Texas Loan
€29 NOTES ON TEXAS REPORTS. 50 Tex. 99-113
Agency t. Dingee, 33 Tex. Civ. 120, 75 S. W. 867, where deed of
trust provided power to sell not revoked by grantor's death, sale by
trustee pending administration on grantor's estate is void; Abney v.
Pope, 52 Tox. 293, and Armstrong v. Moore, 59 Tex. 649, both re-
affirming rule. See notes, 55 Am. Dec. 771; 70 L. R. A. 143.
Distinguished in Rogers v. Watson, 81 Tex. 403, 17 S. W. 30, where
over four years had elapsed and no administration had taken place;
also in dissenting portion of opinion, Linberg v. Finks, 7 Tex. Civ.
398, 25 S. W. 791, majority reaffirming rule.
Where Sale Under Power to Sell in trust deed is void, a credit
made on the note secured by such trust deed should be canceled.
Approved in Hardin v. Abbey, 57 Tex. 588, reaffirming rule.
A Deed of Trusty with power of sale for purchase money or improve-
ments, may be enforced against the homestead.
Approved in Western etc. Inv. Oo. v. Ganzer, 63 Fed. 658, reaffirming
rule.
A Deed of Trust, with power of sale by trustee of the homestead,
executed by both husband and wife, is valid if executed during life-
time of husband.
Approved in Moran v. Clark, 30 W. Va. 374, 8 Am. St. Rep. 80, 4
8. E. 312, reaffirming rule.
It Would Seem that the powers of a surviving wife of an insolvent
estate are identical with those of a regular administrator.
Approved in Stevenson v. Roberts, 25 Tex. Civ. 583, 64 S. W. 233,
power of community administrator is same as that of an independent
executor.
50 Tez. 99-105, HUNT ▼. BEILLY.
Damages Lie for violation of articles of partnership, although oc-
casioned by suit and injunction against the violating partner.
Approved in Brown v. Warner, 78 Tex. 545, 22 Am. St. Rep. 69,
14 S. W. 1033, 11 L. R. A. 394, applying rule to breach of contract,
which was caused by the appointment of a receiver. See note, 53
L. R. A. 82.
Profits of the Business are measure of damages for breach of articles
of partnership.
Approved in Henry v. McCardell, 15 Tex. Civ. 501, 40 S. W. 174,
and Waco Water Co. v. Sanford, 1 Tex. Ap. Civ. 77, both reaffirm-
ing rule; Rogers v. McGuflfey, 96 Tex. 567, 74 S. W. 754, damages
for breach of contract leasing land to plaintiff on shares is value
of share of crop which he could have made less proper deductions.
Where Jury was Waived and cause submitted to lower court, ap-
pellate court may render such judgment as lower court should have
rendered.
Approved in Carter v. Roland, 53 Tex. 549, reaffirming rule.
Plaintifl's Estimate of opinion of amount of profits lost to him
is not admissible in measuring damages for breach of partnership
agreement.
Approved in Lee v. Wilkins, 1 Posey U. C. 299, reaffirming rule.
50 Tez. 106-113, EDMUNDSON ▼. SILLIMAN.
Purchaser Who Bought Stock of Goods worth seven hundred dol-
lars for his debt of two hundred and three dollars, and who knew
that seller was paying five per cent per month for money to pay
freight bills, is chargeable with debtor's fraudulent intent in selling to
him.
50 Tex. 113-129 NOTES ON TEXAS BEPOBT& 830
Approved in Blankenship v. Turner, 3 Tex. Ap. CiT. 506, reaflirming
rule. See note, 31 L. B. A. 627.
A Secret and Hasty Bale of Ooods worth seven hnndred dollars to
one creditor for two hundred and three dollars, where seller is
finaneially embarrassed, is evidence of fraudulent intent to hinder
and delay his creditors.
Approved in Fechheimer t. Ball, 1 Tex. Ap. Civ. 422, where deed
of assignment had on its face earmarks of fraud.
Where Becord Shows That the Judgment is not warranted by the
evidence, appellate court will reverse it.
Approved in Block v. Sweeney, 63 Tex. 427, reaffirming rule;
Houston etc. By. v. Schmidt, 61 Tex. 286, where record shows that
verdict is clearly contrary to evidence, appellate court will not sus-
tain it; dissenting opinion in Mutual etc. Ins. Co. v. Hayward, 88 Tex.
327, 31 S. W. 511, majority holding that, where there is any evidence
to sustain, verdict is not reviewable.
60 Tex. 113-117, OVEBTON ▼. CONHEB.
It is Immaterial That Property Beceived in accord and satisfac-
tion reverted to defendant under some other contract and that thereby
plaintiff derived no benefit from the property.
Approved in Burke v. Purifoy, 21 Tex. Civ. 207, 50 8. W. 1092, re-
affirming rule; Whitsett v. Clayton, 5 Colo. 479, where debtor fur-
nished the security agreed upon, but creditor refused to accept.
To be OperatiTe, the Accord and Satisf acticm must be fully consum-
mated and according to its terms.
Approved in Gulf etc. By. v. Gh>rdon, 70 Tex. 87, 7 S. W. 699, and
Johnson v. Portwood, 89 Tex. 239, 34 8. W. 789, both reaffirming
rule. See notes, 100 Am. St. Bep. 451, 455; 20 L. B. A. 793.
Distinguished in Bobertson v. Trammell, 37 Tex. Civ. 62, 83 S. W.
262, where one injured by negligence of employer and two railroads
accepted sum from one company guaranteeing to protect it from
further liability, but contract stipulating that no one released from
liability, he could recover from other joint wrongdoers.
Miscellaneous. — Shelton v. Jackson, 20 Tex. Civ. 447, 49 S. W. 417,
miscited to the point that a money demand cannot be satisfied with
a smaller amount of money, but may be with personal property.
50 Tex. 117-119, COFFEE ▼. BLACK.
Amendment Correcting IkUscalcnlation of Interest in judgment is
permitted after reasonable notice.
Approved in Pennsylvania etc. Ins. Co. v. Wagley (Tex. Civ.), 36
S. W. 998, holding there is no variance between citation and petition
where citation gives true date of filing, and file-marks on petition
are corrected by order of court.
Defendant la Entitled to notice of motion to correct a default judg-
ment, made after term at which the original judgment was ren-
dered.
Approved in Madison v. State, 17 Tex. Ap. 486, reaffirming rule.
50 Tex. 119-120, BAKSOME ▼. BEABDEK.
Petition in Suit by Heir to Set Aside Will as forgery, brought four
years after probate and alleging discovery of fraud within two
years before suit begun, must allege fraud of defendants and exercise
of due diligence to discover fraud and lack of negligence on his part.
831 NOTES ON TEXAS REPORTS. 50 Tex. 129-143
Approved in Boren v. Boren, 38 Tex. Civ. 146, 85 S. W. 52, holding
lapse of twelve years bars suit to cancel deed where plaintiff claimed
he was imposed on as to rights under father's will, which was of
record of county where he lived; Pitman v. Holmes, 34 Tex. Civ.
489, 78 S. W. 963, plaintiff not knowing extent of interest in land,
having been led to believe by mother that it was bought with com-
munity funds, instead of with father's separate funds, not barred
by limitations from contesting partition made on former basis till she
was chargeable with knowledge of interest; Cohen v. Shwarts (Tex.
Civ.), 32 S. W. 821, holding allegations that fraud was not discovered
until commencement of action, without alleging due diligence, insuffi-
cient to remove bar of statute.
Article 5643, Paschal's Digest^ does not excuse suit to set aside
a will for forgery, when by use of reasonable diligence the forgery
could have been discovered.
Approved in Calhoun v. Burton, 64 Tex. 516, reaffirming rule; Texas
etc. Ry. V. Gay, 86 Tex. 608, 26 S. W. 614, 25 L. R. A. 52, fraudulent
concealment of plaintiff's cause of action prevents running of limita-
tions. See notes, 60 Am. Dec. 359, 76 Am. Dec. 114, and 84 Am. Dec.
591.
Petition in Suit to set aside will for forgery should state the facts
relied on as preventing the running of the statute of limitation.
Approved in Vodrie v. Tynan (Tex, Civ.), 57 S. W. 681, reaffirm-
ing rule; Luter v. Hutchinson, 30 Tex. Civ. 513, 70 S. W. 1014, ap-
plying rule in action to recover mare stolen and in possession of
innocent purchaser.
Petition in Suit to set aside will for forgery should state facts
constituting the forgery, so as to enable defendant to rebut or dis-
prove them.
Approved in Western Union Tel. Co. v. Mitchell, 91 Tex. 458, 66
Am. St. Rep. 909, 44 8. W. 275, 40 L. B. A. 209, reaffirming rule.
Donee of Heir is not ^'Person Interested in the estate" within Pas-
ehal's Digest, articles 5542, 5544, providing who shall have privilege
of suing to set aside will as forgery.
See note, 130 Am. St. Rep. 193.
60 Tex. 129-137, EAST LINE ETC. &.£.▼. TEBBT.
In Q-amlshment, burden is on the creditor to rebut answer of gar-
nishee when he denies his indebtedness to defendant.
Approved in Scheuber v. Simmons, 2 Tex. Civ. 674, 22 S. W. 73,
and Winslett v. Bandle, 1 Tex. Ap. Civ. 681, both reaffirming rule;
South Texas etc. Bank v. Texas etc. Lumber Co., 30 Tex. Civ. 414,
70 S. W. 769, where judgment debtor who owned corporate stock
transferred certificates to A for debts due A's wife and child, but
transfer not entered on corporation's books, creditor subsequently gar-
nishing corporation has burden of showing beneficiaries' want of con-
sent to assignment; Smith v. Merchants' etc. Bank (Tex. Civ.), 40
S. W. 1040, holding burden on garnishment plaintiff to impeach truth
of garnishee's answer.
50 Tex. 137-143, WTLLIAMS ▼. TURNER.
Separate Property of Wife remains such during whatever changes
it may undergo, so long as it can be dearly and indisputably traced
as such.
See note, 62 Am. Dec. 479.
50 Tex. 143-169 NOTES ON TEXAS EEPOBTS. 832
50 Tex. 14S-148, FINDLEY ▼. MITCHELL.
Defendant in Sequestration Suit, denied privilege of replevying,
may recover from the officer and his sureties all actual damages re-
sulting from such denial.
Approved in Burgee v. Phiney (Tex. Civ.), 42 S. W. 591, holding, in
suit for damages for wrongful levy of distress warrant, evidence
that plaintiff was thereby prevented from raising crop next year is
inadmissible. See note, 84 Am. Dec. 607.
Attorney's Fees made necessary by denial of privilege to replevy ,
sequestered property form part of plaintiff's damages in suit against
the officer denying such right.
Approved in Sherrick v. Wyland, 14 Tex. Civ. 300, 37 S. W. 345,
and Anderson v. Larremore, 1 Tex. Ap. Civ. 532, both reaffirming rule.
Miscellaneous. — Anderson v. Larremore, 1 Tex. Ap. Civ. 533, mis-
cited as authority for proposition that plaintiff is not liable for acts
of his attorney in causing a malicious levy of execution, where he
did not sanction it.
60 Tex. 148-152, TOWNSEND ▼. RATCLIFF.
When Citation was for "J. A. Townsend," sheriff's return showing
service on '*J. A. Townsen" is sufficient as idem sonans.
Approved in Booth v. Holmes, 2 Posey U. C. 233, reaffirming rule;
Dunn V. Hughes (Tex. Civ.), 36 S. W. 1085, holding officer's return
sufficiently shows service of writ, though name misspelled, where de-
livery of writ on person named therein is shown; Scblacks v. John-
son, 13 Colo. Ap. 133, 56 Pac. 674, where return showed service on
"Schlack," instead of "Schlacks." See note, 100 Am. St. Rep. 350.
50 Tex. 153-155, MAWTHE ▼. CBOZIEB.
Where Amount Involyed Is Less Than Five Hnndred I><^ars and
record shows no order transferring the case from the county court,
district court has no jurisdiction to hear and determine it.
Approved in Chrisman v. Graham, 51 Tex. 457, where record did
not show jurisdictional facts; Conally v. Gambull, 1 Tex. Ap. Civ.
38, where appeal bond was not filed within prescribed time; Heiden-
heimer v. Marx, 1 Tex. Ap. Civ. 68, where want of jurisdiction was
apparent on the record, although not questioned by parties at trial.
50 Tex. 165-159, BIDDLE ▼. BIOEXBSTAFF.
Under Section 14, Article 12, Constitution of 1869, minors could
sue for lands within seven years after removal of disability.
Approved in Trammell v. Neal, 1 Posey U. C. 56, applying rule to
married woman.
60 Tex. 161-169, THOBNTON ▼. MIJBBAY.
Articles 4710 and 6023 of Paachal's Digest, regarding registration
of judgments relating to land, does not prohibit admission of such
judgments where parties agree to their admission, or where substan-
tially admitted in their pleadings.
Approved in Russell v. Farquhar, 55 Tex. 364, reaffirming rule. See
note, 28 L. R. A. 637.
Failure of Actual Settler to Cause Field-notes, after survey, to be
returned to general land office within prescribed time, does not aban-
don the pre-emption claim.
Approved in Vance v. Lindsey, 60 Tex. 290, and Gardner v. Bnrk-
hart, 4 Tex. Civ. 593, 23 S. W. 710, both reaffirming rule.
833 NOTES ON TEXAS REPORTS. 50 Tex. 169-203
Sabseqaant Pre-amptloii Olaimaat^ who finds unpicked cotton, some
in crib, and stock on premises, when entering in possession, and
who also knew of prior claimant's claim, is not a bona fide claim-
ant.
Distingnished in Young y. O'Neal, 54 Tex. 550, where claimant was
chargeable with laches.
50 Tez. 169-175» KEYBS ▼. HOUSTON ETC. &. B.
Plaintiff may Defeat Defendant's Plea by purchasing outstanding
tills pending suit.
Approved in Sinsheimer y. Kahn, 6 Tex. Ciy. 149, 24 S. W. 535,
reaffirming rule.
Issnanoe of Patent to Hein of Original Grantee of certificate as-
signed to another confers naked legal title only as against purchasers
of the certificate.
Approved in Hermann v. Reynolds, 52 Tex. 395, Renick v. Dawson,
55 Tex. 110, Lindsay v. Jaffray, 55 Tex. 634, Hearne y. Gillett, 62
Tex. 27, Abernathy y. Stone, 81 Tex. 434, 16 S. W. 1103, and Culmell
y. Burroum, 13 Tex. Civ. 461, 35 S. W. 943, all reaffirming rule.
£0 TOL 175-181, HUGHES ▼. DBIVEB.
Order Directing Sale for Gold and ten per cent interest on the
judgment, where judgment called for dollars and eight per cent in-
terest, is a mere irregularity.
Approved in Collins v. Hines, 100 Tex. 307, 99 S. W. 401, justice
court execution leaving blank -in body of instrument name of plain-
tiff, but was indorsed with style of suit showing name of plaintiff and
of defendant, is not void; Fitch v. Boyer, 51 Tex. 345, where judgment
which bore no interest was against "Ben and Ann Hubert," while
execution describing it as bearing ten per cent interest and being
against "Ben and Anna Hubert"; Williams y. Ball, 52 Tex. 611,
where execution misdescribed amount of judgment by variance of
less than one dollar.
Distinguished in Battle v. Guedry, 58 Tex. 115, where execution
recited the judgment as rendered on the 9th, while it had been ren-
dered on the 6th of the month; Barnes y. Nix (Tex. Civ.), 56 S. W.
204, holding return on execution containing recital of date of judg-
ment, which is clearly clerical error, will not invalidate sale.
60 Tex. 181-203, HOUSTON ETC. &.&.▼. GRAVES.
Plea in Abatement raising only personal privilege of venue should
anticipate and exclude all matters which would defeat plea.
Approved in Callender etc. Co. v. Short, 34 Tex. Civ. 366, 78 8. W.
367, Masterson v. Ashcom, 54 Tex. 327, Stark v. Whitman, 58 Tex.
376, Carothers v. Mcllhenny, 63 Tex. 147, Crawford v. Carothers,
66 Tex. 200, 18 8. W. 500, Johnson ▼. Stratton, 6 Tex. Civ. 435, 25
S. W. 684, Idndheim v. Davis, 2 Tex. Ap. Civ. 97, Turman v. Robert-
son, 3 Tex. Ap. Civ. 263, and Kels ▼. Adams, 2 Posey IT. C. 376, all
reaffirming rule; State v. Snyder, 66 Tex. 695, 18 S. W. 107, holding
right to venue in certain county may be waived; Burchard v. Record
(Tex. Sup.), 17 S. W. 242, holding plea in abatement must exclude
every exception which would give court jurisdiction; Gardner v.
Hudgins (Tex. Civ.), 29 S. W. 69, holding plea of privilege that ac-
tion is not brought in county of defendant's residence must negative
fact that case is within exception allowing it to be so brought.
2 Tex. Notes— ^3
50 Tex. 203-211 NOTES ON TEXAS BEPOBTa 834
Act of Marcb 21» 1874, prescribing yenue in suits against corpora-
tionSy applies to a pending action, where petition was amended, after
its passage, by setting np facts within its provisions.
Approved in Lewis ▼. Davidson, 51 Tex. 257, reaffirming rule.
Distinguished in Baines v. Jemison, 86 Tex. 120, 23 S. W. 640,
where no amendment was made to the petition subsequent to the act
enlarging the venue.
Petition is not Mnltifarlons where its allegations are connected
with, or grow out of, same action, transaction, or subject matter.
Approved in Milliken v. Callahan Co., 69 Tex. 209, 6 S. W. 683^
Moody V. Smoot, 78 Tex. 125, 14 S. W. 287, Pinegan v. Read, 8 Tex.
Civ. 36, 27 S. W. 262, and San Antonio etc. By. v. Griffin, 20 Tex.
Civ. 95, 48 S. W. 544, all reaffirming rule; Harris v. Cain, 41 Tex.
Civ. 144, 91 S. W. 869, applying rule in action against maker and
vendor of purchase money notes to recover amount of same and to
foreclose vendor's lien; Jackson v. Missouri etc. By. Co. (Tex. Civ.),.
78 S. W. 725, upholding joinder of action against railroad for dam-
ages to land caused by overflow due to construction of road across
spring with action for damages to grass land caused by locomotive
sparks.
50 Tex. 20S--209, ICABSH ▼. HXTBBABD.
Land Oonveyed in Trust by Maker, to secure beneficiary against
loss, because of his suretyship on his note, may be sold on failure of
maker to pay note at maturity.
Approved in Morton v. Lowell, 56 Tex. 645, reaffirming rule; Butler
V. Sanger, 4 Tex. Civ. 416, 23 S. W. 489, surety may foreclose before
maturity if principal is insolvent.
Beneficiary, Who Is also Trustee, in deed of trust with power to
sell, may purchase at his own sale.
Approved in Connolly v. Hammond, 51 Tex. 647, Shappard v. Cage,
19 Tex. Civ. 208, 46 S. W. 840, Wade v. Odle, 21 Tex. Civ. 662, 54 S.
W. 789, and Bandolph v. Allen, 73 Fed. 37, all reaffirming rule;
Maulding v. Coffin, 6 Tex. Civ. 420, 25 S. W. 482, mortgagee may be-
come purchaser at his mortgage sale.
Purchaser at Execution Sale of Eqnity of Bedemption cannot com-
plain because surety, who was trustee and purchaser at trust sale,
failed to pay bid to holder of the note.
Approved in Chase v. First Nat. Bank, 1 Tex. Civ. 599, 20 S. W.
1029, reaffirming rule.
50 Tex. 209-211, HEATH ▼. FBALEY.
Facts Sufficient as a Defense are not necessarily grounds for arrest
of judgment.
Approved in De Perez v. De Everett, 73 Tex. 433, 11 S. W. 389,
mere inconsistencies in petition, if it is sufficient to authorize relief
granted, will not support arrest of judgment.
An Omission of One of the Plaintiffs in the citation is fatal on sp-
peal.
Approved in Durham v. Betterton, 79 Tex. 224, 14 S. W. 1060,
Guinan v. Waco, 22 Tex. Civ. 446, 54 S. W. 611, and Owsley v. Paris
Exchange Bank, 1 Posey U. C. 97, all reaffirming rule; Delaware etc.
Co. v. Farmers' etc. Nat. Bank, 33 Tex. Civ. 659, 77 S. W. 629, in
action against two defendants, a citation naming but one of them
as defendant does not support default judgment; Hunt v. Atchison
etc. By, (Tex. Civ.), 28 S. W. 401, holding court not warranted i»
835 NOTES ON TEXAS EEPOBTS. 50 Tex. 212-242
rendering judgment where citation does not contain names of all
parties.
50 Tex. 212-216, 32 Am. Bep. 602, JOHNSON ▼. MITOHBIiK
Po88e68i<m in Coimactlon With Indor8em«nt» in full, of negotiable
note payable to bearer is evidence of title as against maker.
Approved in Grant v. Ennis, 5 Tex. Civ. 44, 23 S. W. 998, and
Garrett v. Pindlater, 21 Tex. Civ. 637, 53 8. W. 840, both reaffirming
rule; Shaw v. Jacobs, 89 Iowa, 717, 48 Am. St. Bep. 414, 55 N. W.
335, 21 L. B. A. 440, applying rule to a check. See notes, 70 Am.
Dec. 330; 1 Am. St. Bep. 807; 36 L. B. A. 233.
It Soems That an Indorsement in Full by payee of note payable
to payee or bearer operates in making indorser guarantor to bearer.
Approved in Halbert v. Elwood, 1 Kan. Ap. 99, 41 Pac. 68, reaffirm-
ing rule.
50 Tez. 216-224, SNOW ▼. NASH.
Judgment Lien is Lost where execution is not issued thereon
within one year from date of judgment.
Approved in Hart v. McDade, 61 Tex. 211, where record failed to
show that execution had ever been issued on the judgment.
60 Tex. 224-242, TITUS ▼. JOHNSON.
Legal or Equitable Owner may maintain trespass to try title
against an adverse claimant who has never been in possession of the
land.
Approved in New York etc. Land Co. v. Hyland, 8 Tex. Civ. 614,
25 S. W. 211, Cates v. Alston, 26 Tex. Civ. 445, 61 S. W. 980, and
Stanley v. Schwalby, 162 U. S. 272, 16 Sup. Ct. Bep. 761, 40 L. 966,
all reaffirming rule; Texas Land Co. v. Turman, 53 Tex. 623, holding
petition sufficient to maintain trespass to try title; Edringrton v.
Butler (Tex. Civ.), 33 S. W. 144, holding trespass to try title main-
tainable by one in possession against one out of possession.
Effect of Record of Duly Acknowledged Deed cannot be attacked
by showing that officer taking acknowledgment had an interest in
the land.
Approved in Southwestern Mfg. Co. v. Hughes, 24 Tex. Civ. 642,
60. S. W. 687, reaffirming rule; Coflfey v. Hendricks, 66 Tex. 679, 2
S. W. 48, parol is not admissible to show official character of person
making certificate where it does not appear en face of certificate;
Bank v. Hove, 45 Minn. 43, 47 N. W. 450, where acknowledgment of
deed to bank was taken by its cashier; Boswell v. First Nat. Bank,
16 Wyo. 182, 92 Pac. 629, where acknowledgment of mortgage to
bank was regular on face, its record was constructive notice to bank,
though officer taking acknowledgment was stockholder in bank.
See notes, 56 Am. St. Bep. 801; 33 L. B. A. 337.
Admission of Immaterial Testimony not calculated to mislead jury
is harmless error.
Approved in Chicago etc. By. v. Porterfield, 92 Tex. 444, 49 S. W.
362, and Texas etc. By. v. Talley, 2 Tex. Ap. Civ. 671, both reaffirm-
ing rule; Hittson v. State Nat. Bank (Tex. Sup.), 14 S. W. 993,
refusing to reverse for erroneous admission of testimony where
appellant voluntarily testified on same subject.
Admissions of Vendor Adverse to Himself are admissible againnt
parties claiming legal title under him, without notice, in suit by
equitable owners.
50 Tex. 243-264 NOTES ON TEXAS REPORTS. 836
Approved in Galbraith v. Howard, 11 Tex. 243, 32 S. W. 808,
reaffirming rule.
50 Tex. 243-264, MARCH ▼. HUTTEB.
Deed by Tenant in Common of distinct portion of the estate does
not prejudice rights of his co ten ants, but operates as an estoppel to
grantor's interest in the specified land.
Approved in Fitch v. Boyer, 51 Tex. 348, Saunders ▼. Silvey, 55
Tex. 48, Glasscock v. Hughes, 55 Tex. 470, Rutherford v. Stamper,
60 Tex. 449, Maverick v. Burney, 88 Tex. 561, 32 S. W. 512, Dohoney
V. Womack, 1 Tex. Civ. 362, 20 S. W. 951, Cook v. International etc.
Ey., 3 Tex. Civ. 128, 22 S. W. 1013, and Wells v. Heddenberg, 11
Tex. Civ. 9, 30 S. W. 705, all reaffirming rule. See notes, 100 Am. St
Rep. 653; 11 L. R. A. 278.
Judgment of Probate Court admitting will to probate is conclusive
upon collateral attack.
Approved in Halbert v. De Bode (Tex. Civ.), 28 S. W. 59, holding
will duly admitted to probate admissible in evidence, and not subject
to attack in trespass to try title.
Husband and Wife may Execute a joint and mutual will, which
may be probated on death of either party.
Approved in Betts v. Harper, 39 Ohio St. 641, 48 Am. Rep. 479,
holding that tenants in common may dispose of their interest in
lands so held by will by uniting in a single instrument. See notes,
68 Am. Dec. 408; 38 L. R. A. 290; 10 L. R. A. 95.
Devisee Takes Under Terms of the Will regardless of its proba-
tion, which merely establishes its genuineness.
Approved in Welder v. McComb, 10 Tex. Civ. 89, 30 S. W. 824, re-
affirming rule.
Probation of Will, after sale of devisee's interest therein, merely
gives vitality to the previous conveyance, except as against innocent
purchaser from the heir.
Approved in Mills v. Hemdon, 60 Tex. 356, and Ryan v. Texas etc.
R. R., 64 Tex. 242, both reaffirming rule; Slay ton v. Singleton, 72
Tex. 212, 9 S. W. 877, holding foreign probation of will not to affect
bona fide purchaser from heir before its probate in Texas; Hale y.
Hollon, 14 Tex. Civ. 108, 35 S. W. 849, where heir conveyed his mere
expectancy of inheritance, while testator was still living.
Before Adoption of New Rules of Practice, court could take case
under advisement and render judgment at subsequent term.
Approved in Cameron v. Thurmond, 56 Tex. 26, and Schintz T.
Morris, 13 Tex. Civ. 588, 35 S. W. 519, both reaffirming rule.
60 Tex. 254-264, HOUSTON ETC. B. R. v. RANDAIJi.
Whether Defendant Railroad was Negligent in constructing its
roadbed; and whether plaintiff was guilty of negligence under cir-
cumstances, are questions of fact for jury.
Approved in St. Louis etc. Ry. t. Doyle (Tex. Civ.), 25 S. W. 461,
holding refusal to give charge not error where evidence to support
charge is not conclusive; Campbell v. Goodwin (Tex. Civ.), 26 S. W.
865, holding charge that particular state of facts will constitute
negligence is error; Galveston etc. Ry. v. Gormley (Tex. Civ.), 27
S. W. 1052, sustaining charge that negligence is measured by char-
acter, risk, and exposure of business, and degree of care ia higher
where lives are considered.
837 NOTES ON TEXAS BEPORTS. 50 Tex. 254-264
One Wlio is Injured by Ordinary Negligence of another cannot
recover therefor, if by his own ordinary negligence he proximately
contributed thereto, so that it would not have happened, but for his
own fault.
Approved in International etc. B. Co. ▼. Edwards, 100 Tex. 24,
93 S. W. 106, holding one walking across railroad crossing at night
without looking for train, though its light visible for mile before it
reached crossing, guilty of negligence which is not excused by show-
ing statutory signals not given; in H. ft T. C. By. v. Bichards, 59
Tex. 375, where section-hand traveling along track at night knew
that approaching train was due, he was guilty of contributory negli-
gence; Missouri etc. By. v. Lee, 70 Tex. 501, 7 S. W. 859, holding such
care in crossing railroad track as a man of ordinary prudence under
similar circumstances would use, suflcient; Houston etc. By. v. Milam
(Tex. Civ.), 58 S. W. 737, holding negligence to be failure to exercise
such care as a prudent person would exercise under the circumstances.
Where Verdict Appears to be Palpably and manifestly excessive,
it should be set aside or reversed on appeal.
Approved in H. ft. T. C. By. v. McNamara, 59 Tex. 259, reaffirming
rule.
Distinguished in Willis v. McNeill, 57 Tex. 480, where case was
one of both actual and exemplary damages.
Where Plaintiff was Permanently and Painfully Injured, and had
undergone extremely critical surgical operation therefor, verdict of
twelve thousand dollars is not excessive.
Approved in Chicago etc. By. Co. v. Jones, 39 Tex. Civ. 483, 88
8. W. 447, upholding verdict for six thousand three hundred and
seventy-five dollars where strong woman of thirty-nine permanently
injured, and woman's system so impaired as to prevent performance of
usual household duties; H. ft T. C. By.^v. Marcelles, 59 Tex. 338,
holding verdict of eighteen hundred dollars not excessive; H. ft T.
C. By. V. Pinto, 60 Tex. 518, verdict of five thousand dollars, for loss
of hand of switchman, held not excessive; T. ft P. By. v. Lowry, 61
Tex. 155, verdict of two thousand dollars for loss of use of arm, and
other pain, held not excessive; Gulf etc. By. v. Silliphant, 70 Tex. 632,
see 8 S. W. 676, holding verdict of ten thousand dollars not excessive
for permanent and painful internal and external injuries to young
man; Galveston etc. By. v. Porfert, 72 Tex. 353, 10 S. W. 213, circum-
stances where verdict of fourteen thousand one hundred and sixty-,
seven dollars was held not excessive; Houston etc. By. v. Kelley, 13
Tex. Civ. 25, 34 S. W. 821, verdict of ten thousand dollars, for loss of
leg of switchman, twenty-three years of age, held not excessive; Gal-
veston etc. By. V. Slinkard, 17 Tex. Civ. 588, 44 S. W. 36, holding ver-
dict for ten thousand dollars for loss of right arm and other perma-
nent injuries of brakeman, with life expectancy of twenty-three
years, not excessive; Gulf etc. By. v. Warner, 22 Tex. Civ. 172, 54 S.
W. 1067, holding verdict of ten thousand dollars not excessive, where
young switchman, annually earning one thousand and eighty dollars,
lost leg, and was otherwise rendered unable to support himself;
Missouri etc. By. v. Nail, 24 Tex. Civ. 116, 58 S. W. 166, verdict of
eight thousand four hundred and thirty dollars was not excessive for
permanent injuries to wife's spine and nervous system; H. ft T. C.
B. B. V. Shaw, 2 Posey U. C. 556, holding eleven thousand dollars not
excessive for death of robust man of middle age earning three thou-
sand dollars a year; Boss v. Texas etc. By., 44 Fed. 49, holding
50 Tex. 264-269 NOTES ON TEXAS BEPOBTS. 83S
verdict of two thousand five hundred dollars, for killing of healthy
five year old child on railroad track, as not excessive; Trinity Co.
Lumber Go. v. Denham (Tex. Civ.), 29 S. W. 556, holding judgment is
not reversible as excessive, unless so large as to evidence prejudice or
misconduct of jury; Galveston etc. B. Go. v. Bohan (Tex. Civ.), 47 S.
W. 1052, holding verdict for fourteen thousand dollars, for loss of
arm, not excessive where plaintiff was earning one hundred and
fifteen dollars per month.
Mental and Fbysical Soffaring caufled by railway injuries form
an element of recoverable damages.
Approved in So Belle v. Western Union Tel. Co., 55 Tex. 311, 40
Am. Bep. 806, reaffirming rule; Stuart v. Western Union Tel. Co., 66
Tex. 585, 59 Am. Bep. 628, 18 S. W. 353, holding, in case against
telegraph company, injury to feelings to form an element of actual
damages. See note, 7 Am. St. Bep. 535.
Distinguished in International etc. Tel. Co. ▼. Saunders, 32 Fla.
439, 14 So. 149, 21 L. B. A. 810, where plaintiff sued telegraph com-
pany for mental suffering resulting from failure to deliver funeral
message; Western Union Tel. Co. v. Ferguson, 157 Ind. 67, 60 N. El
675, 54 L. B. A. 846, where through defendant's failure to deliver
message announcing death of plaintiff's grandmother, he was unable
to attend funeral, he cannot recover for mental anguish; Connelly v.
Western Union Tel. Co., 100 Va. 56, 93 Am. St. Bep. 919, 40 S. E.
620, 56 L. B. A. 663, denying damages for mental suffering for delay
in delivery of telegram when no negligent failure charged nor special
damage claimed; Western Union Tel. Go. v. Bogers, 68 Miss. 755, 24
Am. St. Bep. 304, 9 So. 824, 13 L. B. A. 859, holding mental suffering
disconnected from physical injury not recoverable in action against
telegraph company; Kester v. Western Union Tel. Co., 8 Ohio C. C.
240, holding mere mental suffering, unaccompanied by pecuniary loss
or physical injury, not r0coverable against telegraph company for
simple negligence.
Qaastioa of Oontrilmtory VegHgeaoB is for the jury.
Approved in Hobson v. New Mexico etc. B. B. Co., 2 Aris. 179,
11 Pac. 548, Eames v. T. & N. O. By., 63 Tex. 665, and Missouri etc.
By. V. Jones, 75 Tex. 154, 16 Am. St. Bep. 882, 12 S. W. 974, both
reaffirming rule.
MMsnre of Damages for Fenonal Injuries is value of time lost
while disabled, fair compensation for the mental and physical suf-
fering, and probable effects on future ability to pursue natural
course of the person's life.
Approved in Carpenter ▼. Mexican Nat. B. Co., 39 Fed. 318, Sal-
dana v. Galveston etc. By., 43 Fed. 867^ Texas etc. By. Co. ▼. Kelly,
34 Tex. Civ. 30, 80 S. W. 1078, and Davidson ▼. Southern Pac. Co.,
44 Fed. 481, all reaffirming rule; Northern Texas Traction Co. v.
Yates, 39 Tex. Civ. 118, 88 S. W. 284, upholding charge allowing
damages for impairment of nervous system and memory in addition
to physical and mental suffering and impairment of earning power.
Miscellaneous. — Rose v. Winn, 51 Tex. 549, 550, miscited to point
of sustaining validity of statutory bond, apparently refers to an un-
reported case.
50 TeaL 264-269, HEATH ▼. OABBETT.
Where Becord Shows Notice of Appeal and fixing of amount of
bond of appeal from probate to district court, and no objection
thereafter raised, giving of appeal bond will be presumed.
^9 NOTES ON TEXAS BEPORTS. 60 Tex. 269-287
Approved in Shiner v. Shiner, 14 Tex. Civ. 491, 40 S. W. 440, and
Shiner t. Shiner, 15 Tex. Civ. 669, 40 S. W. 440, both reaffirming
rule; Osborne v. Ayers (Tex. Civ.), 32 S. W. 74, holding record on
appeal of ease begun in justice court should contain transcript and
appeal bond from justice to county court.
Miscellaneous. — Gulf etc. By. v. Silliphant, 70 Tex. 632, see 8 8.
W. 676, erroneously cited.
£0 TOL 269-276, THOMAS ▼. WILUABiS.
BemoTal ftom Homestead to educate children and contracting for
new homestead does not operate ipso facto as an abandonment.
Approved in Birdwell v. Burleson, 31 Tex. Civ. 33, 72 S. W. 448,
following rule; Bollins v. OTarrel, 77 Tex. 94, 13 S. W. 1023, holding
that abandonment of homestead must clearly appear from acts of
owner; Lyttle v. Harris, 2 Posey IT. G. 28, holding temporary removal
from homestead does not constitute abandonment; Cantine v. Dennis
(Tex. Civ.), 37 6. W. 187, holding to establish abandonment of home-
stead, proof must show abandonment, with intention not to return.
See notes, 60 Am. Dec. 609; 70 Am. Dec. 295; 102 Am. St. Bep. 405.
Mere FnmdQlait Declarations of Husband or Third Persons do not
«6top assertion of homestead exemption by husband and wife.
Approved in Boss v. McGowen, 58 Tex. 608, and Seay v. Fennell,
15 Tex. Civ. 264, 39 S. W. 182, both reaffirming rule; Black v. Gar-
ner (Tex. Civ.), 63 S. W. 920, husband cannot by deed or by estoppel
charge the homestead without consent of wife.
Neither Declarations nor Written Batlfications of husband's pre-
vious deed, not in conformity with statutes, will estop wife from her
homestead rights.
Approved in Morris v. Montgomery, 2 Posey U. C. 387, reaffirming
rule; Hostetler v. Eddy, 128 Iowa, 405, 104 N. W. 487, actual occu-
pation of land by family as dwelling place is sufficient declaration
of its homestead character.
50 Tex. 276-279, POIJLND ▼. DAVENPOBT.
Purchaser of Lands at Judgment Sale who goes into possession is
not affected by probate proceedings to enforce another lien thereon
where he is not made party to proceedings.
Approved in Mayers v. Paxton, 78 Tex. 199, 14 8. W. 569, holding
sale of homestead pending attachment proceedings is not affected by
subsequent order of court, for its sale in such proceedings, where no
issue of homestead was made.
60 Tez. 279-287, DAVI8 ▼. RANKIN.
Much Liberality is Extended in upholding proceedings in justice's
courts. r
Approved in Williams v. Ball, 52 Tex. 609, 36 Am. Bep. 733, hold-'
ing justice's judgment, when apparently within scope and jurisdic-
tion, not subject to collateral attack, because not showing affirma-
tively jurisdiction; Davis v. Bargas, 12 Tex. Civ. 64, 33 S. W. 549,
holding the intelligibility of a judgment of justice to be test of its
validity.
Where Levy and Sale is Made by a Deimty Sheriff, he may ac-
knowledge the deed personally.
Approved in Burrow v. Brown, 59 Tex. 458, reaffirming rule; Hern-
don V. Beed, 82 Tex. 652, 18 S. W. 666, holding deputy district clerk
50 Tex. 287-302 NOTES ON TEXAS REPORTS. 840
entitled to take acknowledgment as such deputy in his own name.
See note, 65 Am. Dec. 79.
When Vendor's Foredosnra Proceedings were commenced on same
daj sheriff's deed under judgment sale was placed on record, it was
not conclusive against such purchaser without making him a party.
Approved in Black v. Black, 62 Tex. 298, reaffirming rule; Latti-
more v. Pro vine, 29 Tex. Civ. 114, 69 S. W. 224, where purchaser on
land on which vendor's lien is retained plats it for town lot purposes,
recording of plat and subsequent conveyances charges his vendor with
notice thereof; Ballard v. Carter, 71 Tex. 164, 9 S. W. 94, subsequent
purchaser, whose deed is of record, should be made party to fore-
closure of a vendor's lien; Nix v. Cardwell, 2 Posey U. G. 268,
subsequent encumbrancers, of whose claim notice is given by either
possession or registration, must be made parties.
50 Tez. 287-291, MoCABTT ▼. MOOBEB.
Vendee cannot be Ousted without an adjustment of his equities*
under the contract for sale.
Approved in Moore v. Giesecke, 76 Tex. 549, 13 S. W. 292, Oriental
▼. Barclay, 16 Tex. Civ. 215, 41 S. W. 127, and Simms v. Wright (Tex.
Civ.), 56 S. W. Ill, all reaffirming rule; Lytle ▼. Scottish American
etc. Co., 122 Oa. 471, 50 S. £. 408, arguendo.
Distinguished in State ▼. Snyder, 66 Tex. 698, 18 S. W. 109, hold-
ing tender of purchase money not necessary in suit by the state to
recover school lands fraudulently purchased.
Wliere Vendor InsolTent, court must withhold writ of possession
till plaintiff deposit with clerk amount due vendee on rescission of
sale.
Approved in McCord v. Hames, 38 Tex. Civ. 247, 85 S. W. 508,
where amount of unpaid purchase money not ascertainable by vendee,
who pleaded payment of notes, but offered to pay amount found due,
tender in open court unnecessary to defeat recovery of land.
60 Tez. 291-<302, TAYIiOB ▼. IffUBPHY.
Opinions of Military Supreme Court are not regarded as authorita-
tive expositions of the law.
Approved in Peck v. San Antonio, 51 Tex. 492, Cooper v. Austin,
58 Tex. 503, and Barbee v. Stinnett, 60 Tex. 167, all reaffirming rule;
American Cotton Co. v. Phillips, 31 Tex. Civ. 80, 71 S. W. 321, fol-
lowing rule of opinion of military court where it announced correct
doctrine; Howard v. Galbraith (Tex. Civ.), 30 S. W. 692, holding
void, judgment rendered at special term of district court ordered by
military authority.
Oonunnnity Property is Liable for antenuptial debts of wife.
Approved in Moody v. Smoot, 78 Tex. 124, 14 S. W. 287, reaffirming
rule; Lee v. Henderson, 75 Tex. 193, 12 S. W. 981, holding it liable
for debts of husband; Evans v. Breneman (Tex. CTiv.), 46 S. W. 81,
holding judgment for services for benefit of wife's separate estate
should order payment out of community estate or wife's separate
estate. See note, 19 L. R. A. 235.
It Seems That the Husband is a Necessary Party to any judgment
rendered against the wife.
Approved in Steinback v. Weill, 1 Tex. Ap. Civ. 526, husband is
necessary party to any judgment rendered against the wife.
841 NOTES ON TEXAS REPORTS. 50 Tex. 302-324
50 Tex. 302-310, BOND ▼. DHJiABD.
UMar Statutes of 1870 and 1876, court mnst appoint a special
guardian for minor plaintiffs or defendants in suits pending or to be
commenced.
Approved in Smith y. Redden, 1 Posey U. C. 365, reaffirming rule;
Brooke v. Clark, 57 Tex. 110, holding suit by next friend, and not by
special guardian, reversible error; Ivey v. Harrell, 1 Tex. Civ. 230,
20 S. W. 776, applying rule where minors came into the suit by inter-
vention; Long V. Behan, 19 Tex. Civ. 328, 48 S. W. 556, holding such
appointment to apply to plaintiffs also; Hawkins v. Forrest, 1 Posey
U. C. 173, holding such nonappointment fatal to the judgment.
Distinguished in Brooke v. Clark, 57 Tex. 112, holding suit by
next friend and not by special guardian as a nonreversible irregu-
larity.
50 Tex. 811-^17, BAWLE8 ▼. PEBKEY.
Bona Fide Pnrcliaser is Protected to extent of purchase money paid,
as against prior vendor's lien.
Approved in Russell v. Kirkbride, 62 Tex. 460, and Taylor v. Cal-
laway, 7 Tex. Civ. 471, 27 S. W. 939, both reaffirming rule; McAfee
V. Wheelis, 1 Posey U. C. 71, holding burden is on holders of tacit
lien to prove notice or want of consideration in subsequent pur-
chasers.
Negotiable Note for Bona Fide Purchase of Land charged with a
vendor's lien, assigned before maturity in due course of trade, is a
payment protected as against the vendor's lien.
Approved in Houston t. Dickson, 66 Tex. 81, 1 S. W. 376, reaffirm-
ing rule.
50 Tex. 817-824, BOBEBTSON ▼. OUBBIN.
Fraud is Admissible as a Defense to suit on note for land where
the holder has notice of the fraud.
Approved in Taylor v. Merrill, 64 Tex. 497, reaffirming rule; Turner
V. Grobe (Tex. Civ.), 44 S. W. 906, holding parol evidence admissible
to show fraud and false representations in securing writing.
Becitals in Deeds are Notice to all holding under them.
Approved in Delespine v. Campbell, 52 Tex. 12, Gaston ▼. Dash-
iell, 55 Tex. 517, Crews v. Taylor, 56 Tex. 467, Stiles v. Japhet, 84
Tex. 98, 19 S. W. 453, Elmendorf v. Beirne, 4 Tex. Civ. 190, 23 S.
W. 316, Christian v. Hughes, 12 Tex. Civ. 626, 36 S. W. 300, Graham
V. Hawkins, 1 Posey U. C. 519, and Hubbard v. Knight, 52 Neb. 403,
72 N. W. 474, all reaffirming rule.
Fact That New Note is Given to Different Party for original pur-
chase money note does not affect the vendor's lien therefor.
Approved in Torrey v. Martin (Tex. Sup.), 4 S. W. 644, Neese v.
Riley, 77 Tex. 351, 14 S. W. 66, Clements v. Neal, 1 Posey U. C. 47,
and Dean v. Hudson, 1 Posey IT. C. 371, all reaffirming rule^ Meyer
V. Smith, 3 Tex. Civ. 41, 21 S. W. 996, fact that purchase price is to
be paid in personal property does not waive vendor's lien; dissenting
opinion in Douglass v. Blount, 95 Tex. 389, 67 S. W. 494, 58 L. R. A.
699, majority holding owner of unassigned notes could not redeem
from foreclosure of other enc^umbrance to which he was not party.
The Several Purchase Money Notes for same land in hands of
different parties have all equal rights to satisfaction out of the land.
Approved in Delespine v. Campbell, 52 Tex. 11, Salmon v. Downs,
55 Tex. 247, Glaze v. Watson, 55 Tex. 570, Stell v. Lewis, 2 Posey
50 Tex. 329-349 NOTES ON TEXAS REPORTS. 842
U. C. 533, Douglass v. Blount (Tex. Civ.), 62 S. W. 431, and Lewis
V. Ross (Tex. Civ.), 65 8. W. 505, all reaffirming rule; McAfee v.
Wheelis, 1 Posey U. C. 71, burden is on party asserting taeit lien
against holders of legal title to prove facts constituting their equity.
See notes, 37 L. R. A. 751; 24 L. R. A. 800; 13 L. R. A. 298.
Distinguished in Douglass v. Blount, 22 Tex. Civ. 495, 496, 55 S.
W. 527, 528, holding assignee of one purchase money note entitled
to priority as against the other notes still held by vendor.
Prior Foreclosure on Porcliase Money Note does not bar foreclosure
by holder of another such note where he was not party to prior
proceedings.
See note, 37 L. R. A. 753.
50 Tex. 32»-330, 1CATHIA8 ▼. OBEBTHIE&.
Verdict on Conflicting ETldence, and especially where fraud is
alleged, will not be reversed except from manifest error of law.
Cited generally among large list of pro and con authorities in dis-
senting opinion in Mutual etc. Ins. Go. v. Hayward, 88 Tex. 327, 31
S. W. 511, majority reaffirming rule.
Judgment of Oonrt on Ocmfllctlng Evidence is as conclusive as ver-
dict thereon.
Approved in Willie v. Morris, 63 Tex. 460, York v. Le Gierse, 1
Tex. Ap. Civ. 776, and Lichtenstein v. Loewenstein, 2 Posey U. C.
384, all reaffirming rule. See note, 59 L. R. A. 877.
50 Tez. 330-349, HOUSTON ETC. &. S. ▼. PARSER.
In Action Against Bailroad for Damages^ because of backwater
caused by insufficient culvert in an embankment, charge on law ap-
plicable to adjacent land owners is proper.
Approved in St. Louis etc. Ry. v. Craigo, 10 Tex. Civ. 244, 31 S.
W. 210, reaffirming rule where injury was caused by insufficient em-
bankment.
Bailroad in Constmcting a Calvert is required to provide against
ordinary rains, but not against extraordinary floods.
Approved in Houston etc. Ry. v. Fowler, 56 Tex. 458, O. C. & S.
F. Ry. V. Holliday, 65 Tex. 520, and Ohio etc. Ry. v. Thillman, 143
HI. 138, 36 Am. St. Rep. 365, 32 N. E. 532, all reaffirming rule.
Ordinary Care in Constmcting a Bailroad Culvert requires those
floods to be guarded against which ordinary prudence would antici-
pate.
Approved in Dallas etc. Ry. v. Dunlap, 7 Tex. Civ. 474, 26 S. W.
878, reaffirming rule; Barstow Irr. Co. v. Black, 39 Tex. Civ. 85, 86 S.
W. 1039, applying rule to construction of irrigation ditches and em-
bankments; Gulf etc. Ry. Co. v. Steele, 29 Tex. Civ. 332, 69 S. W.
173, statute with reference to construction of railroads across streams
does not affect railroad's liability for obstruction of waters of stream
to another's injury. See note, 6 L. R. A. (n. s.) 252.
In Absence of Statute or Settled Rule defining acts which consti-
tute negligence, such question is for jury.
Approved in Dargan v. Pullman Palace Car Co., 2 Tex. Ap. Civ.
610, reaffirming rule; Ghilf etc. Ry. v.. Calhoun (Tex. Civ.), 24 S.
W. 363, holding whether or not defendant is negligent under facts
of case is question for jury; Ohio etc. Ry. v. Thillman, 143 111. 137,
36 Am. St. Rep. 364, 32 N. E. 532, holding question of what was an
extraordinary flood was for the jury.
843 NOTES ON TEXAS BEPOBTS. 50 Tez. 350-357
That Damageg by Orerflow of Water was caused bj city bridge,
and not from defendant's culvert, is available under general issue.
Approved in Murray v. Gulf etc. By., 73 Tex. 6, 11 S. W. 126, hold-
ing defense of contributory negligence to be in the nature of avoid-
ance. See note, 59 L. B. A. 869.
That Building Injured by OYerflo<w from backwater encroached on
street is no defense where railroad constructed embankment with in-
sufficient culverts.
See note, 56 L. B. A. 901.
50 Tex. 360-367, FABBI8 ▼. OIUBEBT.
Probate Sale is SaAcieQt where there was application for the order
to sell part of land certificate, certain land, report, and confirma-
tion of sale of half interest in the certificate..
Approved in Corley v. Anderson, 5 Tex, Civ. 219, 23 8. W. 842,
where certificate was partly located, and order of sale authorized
sale of realty as well as personalty; Tezarkana Clothing Co. v. Bisco
(Tez. Civ.), 40 S. W. 560, holding formal transcript of order of sale
not necessary to authorize officer to make sale ordered by probate
court.
An Application may be Looked to, to explain a sale of property
made upon it.
Approved in Santana etc. Land Co. v. Pendleton, 81 Fed. 791, re-
affirming rule.
0<mYeyance la not Invalid for misdescription, if, from the whole
instrument, the thing sold can be identified with certainty.
Approved in Chalk v. Foster, 2 Posey U. C. 705, applying rule to
power of attorney which identifies the land by reference to the deed
named therein.
Under Sale of a Definite Part of Land Certificate, vendee may locate
the interest conveyed for himself.
Approved in Glasscock v. Hughes, 55 Tex. 479, Parker v. Spencer,
61 Tex. 165, Wilson v. Simpson, 68 Tex. 310, 4 S. W. 842, Kirby v.
Estill, 78 Tex. 430, 14 8. W. 696, Boiler v. Beid, 87 Tex. 77, 26 S. W.
1062, Smith v. Estill, 87 Tex. 270, 28 S. W. 804, Myers v. Jones, 4
Tex. Civ. 332, 23 S. W. 563, and Pool v. Greer, 23 Tex. Civ. 426, 58
S. W. 172, all reaffirming rule; Hall y. Beese, 24 Tex. Civ. 229, 58
S. W. 979, where independent executors of estates having certain
interests in land certificates by agreement and inventory partitioned
off the location and right thereunder.
Where Defendant Knew of PlalntUTs Title before taking posses-
sion, he cannot recover for improvements as being in good faith.
Approved in Anderson v. Lockhart, 2 Posey U. C. 72, reaffirming
rule.
Title to Land Oertiflcate passes by deed identifying it, although
neither its number or date is mentioned.
Approved in Benick v. Dawson, 55 Tex. 107, description of the
land located under a certificate identifies the certificate.
One Having Only an Interest In a Land Oertiflcate cannot bind his
co-owner by a location of the entire certificate.
Approved in Jones v. Lee, 86 Tex. 44, 22 S. W. 895, reaffirming
rule.
50 Tex. 357-370 NOTES ON TEXAS REPOBTa 844
50 Tex. 357-365, PITMAN ▼. HENBY.
Foreclosure Proceedings, to which party in possession of portion
of land foreclosed was not made party, are not admissible in tres-
pass to try title agaiD&t such party.
Approved in Langdon ▼. M'Canless, 2 Posey U. C. 664, reaffirming
mle; Silliman v. Gammage, 55 Tex. 371, where there was a fore-
closure decree without subsequent vendee having been made party
thereto.
Purchaser at Execution Sale under foreclosure of vendor's lien
may enforce lien against person in possession under deed from
original vendee prior to foreclosure proceedings to which he was
not made party.
Approved in Owens v. Heidbreder (Tex. Civ.), 44 S. W. 1087,
holding mortgagee unaffected by foreclosure of mechanic's lien if
not party to suit, but mortgage is subject to mechanic's lien on
improvements.
Miscellaneous. — Glaze v. Watson, 55 Tex. 571, cited arguendo
where pleadings did not raise respective equities and ask for new
sale.
50 Tex. 865-370, WILSON ▼. SMITH.
Sheriff's Deed is not Void where it does not appear from face
of deed that land conveyed cannot be identified by aid of extrinsic
evidence.
Approved in Myers v. Maverick (Tex. Civ.), 27 S. W. 1083, hold-
ing, where defect in description is latent, it may be aided by ex-
traneous evidence; Minor v. Lumpkin (Tex. Civ.), 29 S. W. 799,
holding party may explain deed where presenting no patent am-
biguities; Benson v. Cahill (Tex. Civ.), 37 S. W. 1090, holding levy
sufficiently describes land if description sufficient to identify land.
Defendant In Execution waived irregularities of sale by pointing
out excess over homestead to be sold, and by being present and
assenting to the sale.
Approved in Willis v. Nichols, 5 Tex. Civ. 160, 23 S. W. 1028,
reaffirming rule. See notes, 65 Am. Dec. 79, and 70 Am. Dec. 318.
Court will not Presume that a deed for "one hundred and sixty
acres of land, being part of the homestead tract of James Blank-
ston, excluding two hundred acres exempt by law," cannot be ex-
plained by extrinsic circumstances.
Approved in Giddinga v. Day, 84 Tex. 608, 19 S. W. 683, Smith
V. Crosby, 86 Tex. 20, 40 Am. St. Rep. 822, 23 8. W. 11, Aldridge
V. Pardee, 24 Tex. Civ. 260, 60 S. W. 793, Blackburn v. McDonald,
1 Posey U. C. 359, and Cox v. Hart, 145 U. S. 388, 12 Sup. Ct. Kep.
967, 36 L. 746, all reaffirming rule; American etc. Land Co. v. Pace,
23 Tex. Civ. 259, 56 S. W. 397, upholding sufficiency of description
of land intended to be embraced in trust deed to warrant reforma-
tion for mistake; Echols v. Jacobs Mercantile Co. (Tex. Civ.), 84
S. W. 1083, description of land in petition to recover it, as one
hundred acres "now occupied" by defendant and on "which is situ-
ated mill formerly owned" by him, followed by statement of prem-
ises by which same bounded, is sufficient; Rainbolt v. March, 52
Tex. 251, instance where deacription was sufficient; Steinbeck v.
Stone, 53 Tex. 386, where county, name of tract, and three recorded
deeds were recited; Bowles v. Beal, 60 Tex. 324, Goldman v. Doug-
lassj 81 Tex. 650, 17 S. W. 235, Smith v. Crosby, 86 Tex. 19, 40
845 NOTES ON TEXAS BEPOBTS. 50 Tex. 371-378
Am. St. Bep. 822, 23 S. W. 11, all instances where description was
held sufficient; Vineyard y. O'Connor, 90 Tex. 63, 36 S. W. 425,
instance where description referring to certain purchase at adminis-
trator's sale was sufficient; Hermann v. Likens, 90 Tex. 454, 39 S.
W. 284, instance where description in administrator's deed, aided hy
inventory and other probate records, was sufficient; Pierson y. San-
ger, 93 Tex. 164, 53 S. W. 1013, where deed conveyed part of a
larger tract; McWhirter v. Allen, 1 Tex. Civ. 651, 20 S. W. 1008,
instance where description referring to the headright certificate and
the survey as between certain points was sufficient; Edling y.
Burnett, 19 Tex. Civ. 288, 46 S. W. 907, description, in judgment
foreclosing lien, of specified tract "less six acres sold to" certain
railroad company is sufficient; Frazier v. Waco etc. Assn., 25 Tex.
Civ. 480, 61 S. W. 134, parol is admissible to explain a latent am-
biguity in a sheriff's deed; Bichards v. Snider, 11 Or. 199, 3 Pac.
179, where premises were described as "lot 81, section 19." See note,
60 Am. Dec. 223.
Distinguished in Wooters v. Arledge, 54 Tex. 897, where sale un-
der execution was of an undesignated part of a larger tract with no
means of identifying portion sold; Brown v. Chambers, 63 Tex. 135,
where sheriff's deed referred generally to county records for de-
scription and identification of the land.
00 Tex. 371^78, BUFOBD ▼. BOSTIOK.
Oertiflcate of Commissioner of laand Office is not admissible to
prove date of return of field-notes, or that they were withdrawn.
Approved in Oaither y. Hanrick, 69 Tex. 97, 6 S. W. 622, reaffirm-
ing rule.
Where Qroes Injustice will result from refusal, new trial may be
granted for surprise occasioned by a correct ruling of the court, al-
though negligence might be imputable to his attorney.
Approved in Chinn v. Taylor, 64 Tex. 389, and Alexander v. Solo-
mon (Tex. Sup.), 15 S. W. 909, both reaffirming rule; Keeter v. Case
(Tex. Civ.), 41 S. W. 530, holding refusal of new trial for surprise
is error where injustice probably resulted; Beck v. Avondino, 20 Tex.
Civ. 335, 50 S. W. 210, where defendants were advised by their at-
torneys that the case had been discontinued; Pullman Palace Car Co.
V. Dargan, 1 Tex. Ap. Civ. 197, where apparent laches was excusable,
and grievous injustice would result from such refusal; Sheppard v.
Avery (Tex. Civ.), 32 S. W. 794, holding court of civU appeals will
not grant new trial on unverified averment of surprise where lower
court has already refused it; Springer v. Gillespie (Tex. Civ.), 56 S.
W. 370, allowing new trial where nonresident defendant placed de-
fense in hands of local attorneys, one of whom became sick, and
other, through mistake, allowed default, where defendant had meri-
torious defense.
Distinguished in Dotson v. Moss, 58 Tex. 156, holding refusal of
new trial no abuse of discretion, where party exercised no pru-
dence in ascertaining the surprising testimony.
A Call In Snrvej not Appearing on County Map or surveyor's books
may be shown by parol to have been known as called for.
Approved in Buford v. Bostick, 58 Tex. 70, reaffirming rule.
Miscellaneous. — Buford y. Bostick, 58 Tex. 66, referring to former
appeal of same case.
50 Tex. 379-^04 NOTES ON TEXAS REPORTS. 846
50 .Tez. 879-383, FI^ANAGAN ▼. OBEBTHIEB.
Bona Fide Porcbaser of "Legsl Title ie not affected by any latent
equity founded on trust, fraud, or otherwise.
Approved in Hill v. Moore, 62 Tez. 613, and Ranney v. Hogan, 1
Posey U. C. 257, both reaffirming rule.
Under Article 3963, Paachal's Digest, failure to reinscribe judg-
ment in records of deeds destroyed its lien.
Approved in Terry v. Cutler, 14 Tex. Civ. 528, 39 S. W. 156, re-
affirming rule.
Judgment of the Court on questions of facts is conclusive.
Approved in Blackburn v. Knight, 81 Tex. 330, 16 S. W. 1077, re-
affirming rule.
50 Tex. 383-389, FLANAGAN ▼. FEAB80N'.
One Who has Assigned His Interest in lands need not be made a
party to proceedings by claimant under sheriff's sale against his
vendee, alleging fraudulent assignment.
Approved in Hill v. Moore, 62 Tex. 613, holding bona fide pur-
chasers of legal title protected against claims of equitable interests
therein; Wintz v. Gordon, 2 Posey U. C. 215, holding no equity can
be set up against bona fide purchaser of negotiable note; Carpenter
V. Sanborn (Tex. Civ.), 25 S. W. 86, holding equity will not enjoin
sale at suit of creditor without showing debtor's insolvency or in-
jury to himself.
Sheriff's Sale may be Attacked for fraud by parties having inter-
est in the land who were not parties to sale.
Approved in Pearson v. Hudson, 52 Tex. 359, reaffirming rule;
Park V. Johnson, 23 Tex. Civ. 49, 56 S. W. 761, where deed of tru-t
for benefit of certain creditors attacked as fraudulent by another cred-
itor but upheld and trustees sold property, latter creditor could not
attack sale.
Miscellaneous. — ^Miscited in Hill v. Moore, 62 Tex. 613, for pre-
ceding case; Carter v. Roland, 53 Tex. 544, cited to the point that
assignments of error made in general terms will not be reviewed.
50 Tez. 389-396, CUSHMAN ▼. FLANAGAN.
Jury Trial is Properly Refused where no demand for jury had been
made prior to discharge of the juries for the term.
Approved in Nalle v. City of Austin, 41 Tex. Civ. 429, 93 8. W.
144, and Cole v. Terrell, 71 Tex. 552, 9 S. W. 669, both reaffirming
rule.
50 Tex. 397-404, BUBQESS ▼. MILUOAN.
Where a Mortgage for Purchase Money is executed simultaneously
with deed, vendor has, until purchase money is paid, the superior
right to the land.
Approved in Baker v. Compton, 52 Tex. 261, Thompson v. West-
brook, 56 Tex. 267, Hale v. Baker, 60 Tex. 219, McPherson v. John-
son, 69 Tex. 487, 6 S. W. 799, Huffman v. Mulkey, 78 Tex. 562, 22
Am. St. Rep. 75, 14 S. W. 1030, and White v. Cole, 9 Tex. Civ. 280,
29 8. W. 1149, all reaffirming rule; Shotwell v. McCardell, 19 Tex.
Civ. 176, 47 S. W. 40, applying rule to administrator's sale. See notes,
62 Am. Dec. 512; 107 Am. St. Rep. 723.
Criticised in Summerhill v. Hanner, 72 Tex. 227, 9 S. W. 882. and
Stitzle V. Evans, 74 Tex. 598, 12 S. W. 326, but both reaffirming rule.
847 NOTES ON TEXAS REPORTS. 50 Tex. 404-427
Distinguished in Crow ▼. Fiddler, 3 Tex. Civ. 582, 23 S. W. 20,
where vendoY elected to sue vendee and his surety, but dismissed
as to vendee, and took personal judgment against the surety; Mc-
Afee V. Wheelis, 1 Posey U. C. 69, where purchaser at execution
sale was notified of equitable, but unrecorded, lien, he nevertheless
took good title; Williamson v. Wright, 1 Posey U. C. 719, where
conveyance was by warranty deed reciting full payment and note
executed same day was not shown to include purchase price.
Where Administrator's Deed and Mortgage of Vendee are executed
simultaneously, the superior right to the land remains in adminis-
trator's estate until purchase money is paid.
Approved in Crow v. Fiddler, 3 Tex. Civ. 581, 23 8. W. 20, reaf-
firming rule; Foote v. O'Roork, 59 Tex. 216, arguendo.
Where Deferred Purchase Money is Paid, the seisin will be re-
garded as having been in vendee from date of purchase.
Approved in. Liverpool etc. Ins. Co, v. Ricker, 10 Tex. Civ. 268,
31 S. W. 250, reaffirming rule.
Instruments Executed Simultaneously are construed together as
*part of one transaction.
Approved in Mexican Nat. Coal etc. Co. v. Frank, 154 Fed. 231,
power of attorney limited by letter written contemporaneously to
agent inclosing same and containing instructions as to use of power.
50 Tbx. 404-412, BiABBY ▼. WARD.
Allowance in Lieu of Homestead is not affected by ownership of
separate estate sufficient for support.
Approved in Ball v. Lowell, 56 Tex. 589, reaffirming rule; Clift
V. Kaufman, 60 Tex. 66, where children from a former marriage,
residing at home, owned portion of the home.
Allowance in Lieu of Homestead takes precedence of all obliga-
tions of deceased save vendor's liens.
Approved in Jackson v. Ivory (Tex. Civ.), 30 8. W. 718, Champion
V. Shumate, 90 Tex. 599, 39 S. W. 129, and Toullerton v. Manchke,
1 Tex. Civ. 150, 32 S. W. 239, both reaffirming rule. See note, 56
L. R. A. 59.
Failure of Probate Judge to Make Family Allowance in lieu of
homestead at time required does not affect right.
Approved in King v. Battaglia, 38 Tex. Civ. 37, 84 S. W. 843,
following rule.
Miscellaneous. — Clift v. Kaufman, 60 Tex. 65, cited to the point
that combined occupation of premises as residence and place of busi-
ness constituted it a homestead.
60 Tez. 412-416, LAIRD ▼. BASS.
Fact That Defendant's Counsel was Misled by answers of witness
previous to trial to believe that there was no written evidence of
certain contract is ground for new trial.
See note, 78 Am. Dec. 520.
Conveyance may be Made to Trustees for benefit of unincorporated
church.
See note, 5 L. R. A. 42.
50 Tex. 417-427, OVERTON ▼. BLUM.
New Trial is Never in Fact Qranted after adjournment of term at
which judgment was rendered.
60 Tex. 427-145 NOTES ON TEXAS EEPOETS. £48
Approved in Eddleman v. McGlathery, 74 Tex. 280, 11 8. W. 1100,
Luther v. Western etc. Tel. Co., 25 Tex. Civ. 37, 38, 60 8. W. 1029,
and Hartzell v. Jones, 2 Posey IJ. C. 563, all reaffirming rule.
Behearixig on the Merits may be had where judgment was obtained
by fraud, accident, or mistake without want of diligence on part of
injured party.
Approved in Baymond v. Conger, 51 Tex. 540, McMurray ▼. Me-
Murray, 67 Tex. 669, 4 S. W. 359, and Harris ▼. Haveman, 1 Tex.
Ap. Civ. 454, all reaffirming rule; Brown v. Dulton, 38 Tex. Civ. 298,
85 8. W. 455, method of appeal from judgment in proceeding under
Bev. Stats., art. 1375, to set aside judgment rendered on service by
publication governed by judgment rendered in such proceeding ir-
respective of judgment in original action; Graham v. Coolidge, 30
Tex. Civ. 276, 70 8. W. 233, upholding denial of motion and petition
in intervention seeking to reform foreclosure decree; Harn v. Phelps,
65 Tex. 597, applying rule in. separate proceeding to set aside judg-
ment; Proctor V. Wilcox, 68 Tex. 220, 4 8. W. 376, holding that in
such proceeding party appealing should be held to strict diligence
in preparing case for appellate court; Bowden v. Crow, 2 Tex. Civ.
596, 21 8. W. 614, applying rule to proceeding to vacate an award
by arbitrators; Babcock v. Marshall, 21 Tex. Civ. 148, 50 S. W. 729,
holding fraudulent foreign judgments entitled to no greater faith
and credit in suit upon such judgment than obtain in state where
rendered. See note, 67 Am. Dec. 653.
To Warrant an Injunction pending petition for rehearing, applicant
must show merits in his case.
Approved in Batto v. Levy, 63 Tex. 281, and McGloin v. McGloin,
70 Tex. 636, 8 8. W. 305, both reaffirming rule. See note, 54 Aul
St. Bep. 243.
Distinguished in Galveston etc. By. v. Dowe, 70 Tex. 4, 6 8. W.
793, holding that injunction will not lie to correct errors of an in-
ferior court, even where no appeal is allowed.
Failure to File Statement of Facts upon which proceedings in er-
ror are to be taken is not ground for injunction where meritorious
defense not shown.
See note, 30 L. B. A. 561.
50 Tex. 427-445, WEAVEB v. ASHCBOFT.
Charge is Erroneous WMch Instructs Jury that fraud will not be
presumed, but must be proved, and burden is on party alleging fraud.
Approved in Smith v. Eastham (Tex. Civ.), 56 8. W. 219, holding
erroneous charge that instrument apparently a deed is mortgage
must be proved "clearly" to "satisfaction" of jury.
Assignment of Interest in Partnership Stock by one partner de-
stroys preference of partnership creditors in the firm assets so trans-
ferred.
Approved in Johnston v. Standard Shoe Co., 5 Tex. Civ. 401, 24
8. W. 582, Batchelor v. Sanger, 15 Tex. Civ. 113, 38 8. W. 360, Stan-
sell V. Fleming, 81 Tex. 298, 16 8. W. 1035, and Wiggins v. Black-
shear, 86 Tex. 669, 26 8. W. 940, all reaffirming rule; Morris v. Willi-
ford (Tex. Civ.), 70 S. W. 229, applying rule to execution sale of ^
exempt property.
Charge That "Fraud will not be Presumed, but must be proved
like any other fact, and the burden of such proof rests on party who
«49 NOTES ON TEXAS REPORTS. 50 Tex. 446-467
alleges such fraud/' should explain, in addition, the character of
evidence establishing such fraud.
Approved in Schmick v. Noel, 72 Tex. 5, 8 S. W. 85, and Rider v.
Hunt, 6 Tex. Civ. 241, 25 S. W. 315, both reaffirming rule; Baxter
V. Howell, 7 Tex. Civ. 200, 26 S. W. 454, charge should go to question
whether assignment is to defraud creditors, and not to whether one
or several debts were fraudulent; Granrud v. Rea, 24 Tex. Civ. 300,
59 S. W. 842, fraud may be presumed hj jury from facts and cir-
cumstances proved.
Distinguished in Button v. Clear, 26 Tex. Civ. 551, 65 S. W. 72,
in action to cancel deed as in fraud of creditors, charge that burden
of proving fraud is on one alleging it, but that this only means that
to find transaction fraudulent there must be evidence of positive fraud
or circumstances from which fraud may be reasonably inferred, is
proper.
In Suit Against Sheriif for wrongful attachment, exemplary dam-
ages are not recoverable where no ill-feeling or improper motive ex-
isted on part of sheriff.
Approved in Anderson v. Larremore, 1 Tex. Ap. Civ. 532, and
I^tzpatrick v. Small, 1 Tex. Ap. Civ. 645, both reaffirming rule.
Partnership Ooods may be Levied on for individual debts of a mem-
ber to extent of his interest therein.
Approved in Meyberg v. Steagall, 51 Tex. 354, reaffirming rule.
See note, 46 L. R. A. 481.
Tort is not Cured by Temdi&r without acceptance.
Approved in Hofschulte v. Panhandle etc. Co. (Tex. Civ.), 50 S.
W. 608, holding unaccepted offer to restore property does not defeat
action for conversion nor mitigate damages.
Measnra of Damages for Dlegal Seizure of Goods by sheriff is
their value at time of seizure, with eight per cent interest there-
after.
Approved in Blum v. Thomas, 60 Tex. 161, Willis v. Lowry, 66
Tex. 541, 2 S. W. 450, Blum v. Martindale, 1 Tex. Ap. Civ. 638,
and Shattuck v. McCartney, 1 Tex. Ap. Civ. 280, all reaffirming rule;
Norwood V. Inter-State Nat. Bank, 92 Tex. 271, 48 S. W. 4, applying
rule to wrongful sequestration, but limiting interest to six per cent.
It Seems That Action of Trespass against sheriff is proper remedy
for unlawful levy on property of one not party to the writ.
Approved in Ryan v. Goldfrank, 58 Tex. 359, action of trespass
against sheriff is proper remedy for an unlawful levy by him on
property of one not party to the writ; Jordan v. Meyer, 90 Tex.
646, 39 S. W. 1081, cause of action against principal and sureties
on attachment bond arose at instant of the unlawful seizure.
50 Tex. 446-467, BAOBY ▼. BATEMAN.
Section 23, Article 12, of Oonstltation of 1869 does not prohibit
issuance of bonds payable within ten years for public improvements.
Approved in Dean v. Lufkin, 54 Tex. 270, holding limitation in
section 9, article 8, of constitution to apply to erection of public
buildings, and not to previous debts.
60 Tex. 457-467, MULUNS v. WIMBEBLY.
Purchasers are Oharged With Notice of claim of tenant or oc*
cupant in possession of land purchased.
2 Tex. Notes — 54
50 Tex. 467-491 NOTES ON TEXAS BEP0ET8. 850
Approved in Mainwarring y. Templeman, 51 Tex. 213, Cameron t.
Bomele, 53 Tex. 243, Wimberly y. Bailey, 58 Tex. 226, Hawley y. Geer
(Tex. Sup.), 17 S. W. 916, League v. Snyder, 5 Tex. Civ. 15, 23 S. W.
826, Smith y. James, 22 Tex. Civ. 156, 54 S. W. 43, and Bamirez y.
Smith, 94 Tex. 190, 59 S. W. 260, aU reaffirming rule; Texas Land
etc. Co. y. Cooper (Tex. Ciy.), 67 S. W. 175, determining priorities
between homestead and vendor's lien; Le Doux y. Johnson (Tex. Civ.),
23 S. W. 906, holding subsequent purchasers and attaching cred-
itors charged with notice of attaching officer's possession of lease-
hold and landlord's rights therein; Bumpas y. Zachary (Tex. Civ.),
34 S. W. 672, holding continued possession by grantor notice to pur-
chaser from grantee of grantor's claim; Bamirez y. Smith (Tex. Civ.),
56 S. W. 259, holding purchaser charged with notice of title or in-
terest of person in possession of land; Davidson v. Green, 27 Tex.
Civ. 396, 65 S. W. 1111, purchaser from husband of community real
estate is charged with notice where it is occupied by several heirs
of the deceased wife. See notes, 104 Am. St. Bep. 354; 13 L. B. A.
(n. s.) 53.
Posseesioii is No Notice to Purchaser where tenant is knowingly in
default in recording bis title or has voluntarily assisted in mislead-
ing the purchaser.
Approved in Eylar v. Eylar, 60 Tex. 319, reaffirming rule. See note,
13 L. B. A. (n. 8.) 135.
50 Tex. 467-483, 32 Am. Bep. 606, STEELE ▼. BENN.
Purchaser in Oood Faith under forged will, duly probated, is not
affected by subsequent attacks on its validity.
Approved in Orr v. O'Brien, 55 Tex. 156, and Fowler v. Stagner,
55 Tex. 397, both reaffirming rule; Glover v. Coit, 36 Tex. Civ. 110,
81 S. W. 139, where will duly probated in county court, one purchas-
ing property conveyed by it during time in which appeal to district
court by certiorari could be taken is not purchaser pendente lite;
Zeigler v. Storey, 220 Pa. 477, 69 Atl. 897, 17 L. B. A. (n. s.) 878,
where letters of administration granted to husband showed decedent
was resident of county at time of death and left estate therein, pay-
ment of mortgage debt to administrator is valid though will is sub-
sequently discovered and probated; Miller v. Foster (Tex. Sup.),
12 S. W. 123, holding judgment in proceeding to set aside will is
judgment in rem, binding upon all persons; Halbert v. De Bode
(Tex. Civ.), 28 S. W. 59, holding will duly probated by competent
court cannot be attacked collaterally; Davis v. Gaines, 104 IJ. S.
396, 26 L. 762, holding sale under a probate will not to be affected
by subsequent discovery and probate of a later will. See notes, 60
Am. Dec. 353, 354, 357; 21 L. B. A. 152, 155, 686.
Distinguished in Hughes v. BurrisSy 85 Mo. 667, holding a contrary
rule under the Missouri statute.
60 Tex. 483-491, BOOO ▼. GREEN.
Family Belations are Deduced ftom Social Status, legal or moral
obligation of one to support other members, and their corresponding
dependency.
Approved in Hall v. Fields, 81 Tex. 558, 17 S. W. 84, reaffirming
rule; Wolfe v. Buckley, 52 Tex. 648, holding childless widow head of
family where she, in pursuance of previous intention, adopted an
orphaned grandchild who was living with her; Andrews v. Hagado%
851 NOTES ON TEXAS REPORTS. 50 Tex. 492-494
54 Tex. 577, where married children not living on the homestead and
not dependent were held not part of family entitled to homestead;
Ramey ▼. Allison, 64 Tex. 700, where family consists merely of daugh-
ter and her children, their dependency must be shown to constitu,te
the grandmother a head of family; Barry y. Hale, 2 Tex. Civ. 670, 21
S. W. 784, single man who supports his mother and sister on his
own place is head of a family; Clark ▼. Goins (Tex. Civ.), 23 S. W.
703, holding grandchild living with grandmother is constituent of
family entitled to use of homestead on grandmother's death; Mul-
lins V. Looke, 8 Tex. Civ. 143, 27 8. W. 928, a surviving childless
husband who has taken an orphan boy to raise is not head of a fam-
ily; Phillips V. Price, 12 Tex. Civ. 410, 34 8. W. 785, grandchild whose
parents are living, but who is living temporarily with widowed
grandmother, is not a constituent of her family; Birch v. Birch, 112
Mo. Ap. 164, 86 8. W. 1108, considering whether decedent, in action
for services in caring for and nursing decedent, was member of
plaintiff's family; Relator v. King, 13 Okl. 39, 73 Pac. 292, one resid-
ing with widowed mother and two sisters who are wholly dependent
on him for support is head of family within exemption laws; Mun-
zenberger v. Boehme, 2 Posey U. C. 390, son not considered head of
a family because of widowed mother living with him; Bybee v. Wad-
lington, 2 Posey U. C. 467, holding single man head of a family
where he supports dependent parents and infant nephews living with
him. See notes, 61 Am. Dec. 587; 4 L. R. A. (n. Sw) 366; 6 L. R. A.
813.
Distinguished in American Nat. Bank v. Cruger, 31 Tex. Civ. 24,
71 S. W. 788, unmarried woman residing in her home and there car-
ing for nephews and nieces is entitled to homestead exemption,
though children owned property; Grand Lodge A. O. TJ. W. v. Mc-
Kinstry, 67 Mo. Ap. 87, where child raised but not formally adopted
was held included in term "family" as used by insurance association.
Family Belatloiis Cease as older members grow up, marry, or leave
parental roof.
Approved ih Goode v. State, 16 Tex. Ap. 415, and Trammell v. Neal,
1 Posey TJ. C. 54, both reaffirming rule; Stames v. Atlantic etc. Assn.,
2 Ga. Ap. 243, 58 S. E. 484, applying rule in construing word "fam-
ily" in constitution of benefit society to designate to which bene-
ficiaries must belong.
Under Probate Law of 1870, married daughter with her children,
residing with her mother, could not succeed to the homestead on
death of her mother.
See notes, 32 Am. Rep. 31; 61 Am. Dee. 588; 4 L. R. A. (n. s.), 395;
56 L. R. A. 54, 56.
It Seems That a Separated Family Relation may spring into ex-
istence again by becoming reunited.
Approved in Trammell v. Neal, 1 Posey IJ. C. 54, reaffirming rule.
50 Tez. 492-494, BRADSHAW ▼. BUCHANAN.
Pnnitofy Damages Should not be Allowed unless the wrongful acts
were done through malice or with intent to harass, injure, or oppress
plaintiff.
Approved in G. H. ft S. A. Ry. v. Dunlavy, 56 Tex. 261, Vance v.
Lindsey, 60 Tex. 291, Wright v. Jones, 14 Tex. 430, 38 8. W. 252,
Lesk V. Pollard, 1 Tex. Ap. Civ. 47^ and Anderson v. Larremore, 1
Tex. Ap. Civ. 532, all reaffirming rule.
50 Tex. 495-521 NOTES ON TEXAS EEPOBTS. 852
Miscellaneous. — ^Pegram v. Stortz, 31 W. Va. 270, 6 S. E. 512, cited
arguendo while discussing exhaustive line of authorities cited as re-
affirming rule.
50 Tex. 495-511, 32 Am. Sep. 609, BAINS ▼. SIMPSON.
Judicial Offloers are not Liable Personally for official acts within
their jurisdiction.
Approved in Smith v. Holland, 4 Tex. Ap. Civ. 439, 16 S. W. 426,
Elmore v. Overton, 104 Ind. 550, 54 Am. Bep. 345, 4 N. E. 198, and
Johnston v. Moorman, 80 Va. 143, all reaffirming rule; Gaines v.
Newbrough, 12 Tex. Civ. 469, 34 S. W. 1049, applying rule to mem-
bers of county commissioners' court; Taylor v. Goodrich (Tex. Civ.)y
40 S. W. 519, holding judge not liable for injuries resulting from
act in exercise of judicial discretion. See note, 37 Am. Bep. 189.
Distinguished in Smyth v. State, 51 Tex. Cr. 413, 103 S. W. 901,
holding judge of election liable for false imprisonment of elector
whom he arrested and held in custody because elector was using mem-
orandum in making out his ticket.
Where the Law Preecribee the Duties to be performed with abso-
lute precision and certainty, the act is ministerial.
Approved in Harkreader v. State, 35 Tex. Cr. 255, 60* Am. St. Bep.
46, 33 S. W. 119, reaffirming rule; Hamma v. People, 42 Colo. 409,
94 Pac. 328, 15 L. B. A (n. s.) 621, holding one publishing article
reflecting on conduct of county judge in performance of duty of
keeping accounts of his office not in contempt, as duty is ministe-
rial; State V. Brooks, 14 Wyo. 411, 84 Pac. 490, mandamus lies to
compel governor to grant certificate of election to state officer after
canvassing board has filed certificate showing him to have been
elected. See note, 55 Am. Dec. 806.
Ministerial Acts may be Defined by the rules governing issuance of
mandamus.
Approved in Grider v. Tally, 77 Ala. 426, 54 Am. Bep. 67, reaffirm-
ing rule.
The Approval of a SherilTs Bond is a judicial act.
Approved in Wyatt v. Banner e, 5 Tex. Ap. 335, reaffirming rule.
Members of Conntj Conrt are not personally liable for official acts.
Approved in Wright v. Jones, 14 Tex. Civ. 430, 38 S. W. 252, county
commissioners are not personally liable to one whose property wrong-
fully taken by tax collector pursuant to order of court to collect tax
levied by them in wrong district.
50 Tex. 511-521, PIEDMONT ETC. LIFE INS. Oa ▼. BAY.
Where Conrt has Jurisdiction of Subject Matter, fact that defend-
ant is entitled to be sued in another county must be pleaded or spe-
cially excepted to.
Approved in McKie. v. Simpkins, 1 Tex. Ap. Civ. 114, reaffirming
rule.
Privilege of Being Sued in Another County is waived by answer
to the merits.
Approved in Meade v. Jones, 13 Tex. Civ. 324, 35 S. W. 311, re-
affirming rule.
Payment of Insurance Premium by Draft is valid, notwithstanding
contrary rule of the company.
Approved in Texas etc Ins. Co. v. Munson, 2 Posey U. C. 650,
reaffirming rule; Swearingen v. Buckley, 1 Posey U. C. 427, holding
863 NOTES ON TEXAS REPORTS. 50 Tex. 521-538
receipt of raQroad "time-check" in satisfaction of a debt as pay-
ment.
Failure to Appoint Special Onardian in suit bj infant is ground
for reversal.
Approved in Hawkins v. Forrest, 1 Posey XT. C. 173, and Smith v.
Redden, 1 Posey IT. C. 365, both reaffirming rule.
Qualified in Brooke v. Clark, 57 Tex. 110, where rule was re-
affirmed on first hearing, but qualified on rehearing by holding non-
appointment of such guardian, when not objected to, a mere irregu-
larity. Rule changed by statute, see Hays v. Hays, 66 Tex. 608, 1 S.
W. 896.
Insurance Payable to Widow, half for herself and balance for nse-
of her children, is collectible at suit of widow.
Approved in Texas etc. Ry. v. Gentry, 69 Tex. 631, 8 8. W. 101^
holder of legal title to chose in action may sue in his own name, al-
though equitable right may be in another.
It Seems Inmiaterial by What Name party by whom an infant sues
is called if his authority is recognized.
Approved in Long v. Behan, 19 Tex. Civ. 328, 48 S. W. 556, reaffirm-
ing rule.
Miscellaneous. — ^Mutual etc. Ins. Co. v. Walden (Tex. Civ.), 26 S.
W. 1013, cited in general way while holding Revised Statutes, article
2953, constitutionsX
60 Tex. 621-638, JOHNSON ▼. TIMMONS.
The Power Under Which the Deed was executed is presumed where
the deed is admissible as an ancient deed.
Approved in Storey v. Flanagan, 57 Tex. 654, Harrison v. McMur-
ray, 71 Tex. 129, 8 8. W. 615, Garner v. Lasker, 71 Tex. 436, 9 S.
W. 334, McCoy v. Pease, 17 Tex. Civ. 307, 42 S. W. 659, Batchellar
v. Besancon, 19 Tex. Civ. 141, 47 S. W. 298, and Renter v. Stuchart,
181 m. 541, 54 N. E. 1018, all reaffirming rule; Williams v. Hardie
(Tex. Civ.), 21 S. W. 269, holding recital in deed admissible in evi-
dence as ancient deed, if facts equivalent to power of attorney are
given such effect.
Criticised in Stooksbury v. Swan, 85 Tex. 574, 22 S. W. 967, hold-
ing such presumption one of fact and not of law.
Deed Executed in 1840, being over thirty years old at time of its
production, is an ancient instrument.
Approved in Bass v. Sevier, 58 Tex. 569, it is sufficient if ancient
instruments are thirty years old at time of their production; Cox v.
Cock, 59 Tex. 524, instance where deed was held an ancient instm-
ment.
Charge mast be Applicable to the particular facts of the case.
Approved in Veramendi v. Hutchins, 56 Tex. 420, reaffirming rule;
Randall y. Collins, 52 Tex. 442, holding absence of entry in sheriff's
fee-book of charge for service of citation no presumption of law, but
a mere inference of fact.
In Trespass to Try Title, defendant mnst show connection with out-
standing equity to plead it as a defense.
Approved in Fitch v. Boyer, 51 Tex. 348, Qnllett v. O'Connor, 64
Tex. 417, Lindsay v. Jaffray, 55 Tex. 634, Cox v. Cock, 59 Tex. 525,
Tapp v. Corey, 64 Tex. 596, Capt v. Stubbs, 68 Tex. 224, 4 S. W.
468, Goode v. Jasper, 71 Tex. 52, 9 S. W. 134, Boone v. Miller, 73
Tex. 562, 11 S. W. 553, and Donovan v. Ladner, 3 Tex. Civ. 206, 22
& W. 62, all zeaffirming rule.
50 Tex. 538-562 NOTES ON TEXAS BEPOBTS. 854
BiBtinguished in Philipowski y. Spencer, 63 Tez. 610, where one
defendant held legal title charged with a constructive trust.
60 Tex. 638-^53, PALESTINE ▼. BABNES.
Under Cleneral Charter Law, city may grant exclusive market privi-
leges and exemption from taxes for certain period in consideration
of the erection of buildings therefor.
Approved in Newson v. Galveston, 76 Tex. 564, 13 S. W. 369, 7
L. B. A. 797, and State v. Natal, 41 La. Ann. 890, 6 So. 723, both re-
affirming rule; Waterbury y. Laredo, 60 Tex. 522, holding a city, un-
der its charter power to establish ferries, may contract with an attor-
ney to represent its interests in the ferry for a portion of the rev-
enue thereof; Coit v. Grand Bapids, 115 Mich. 497, 73 N. W. 812,
holding city may exempt owner of land over which it constructs a
sewer from taxation for its construction or maintenance in consider-
ation for such right; dissenting opinion in Coit v. Grand Bapids, 115
Mich. 502, 73 N. W. 814, majority holding city common council has
power to exempt owner of land from taxes under certain circum-
stances. See notes, 24 L. B. A. 584; 9 L. B. A. 70.
Franchise Ib not Passed by Sale of Pnoiierly of the corporation
owning it under an execution.
Approved in Overton Bridge Co. v. Means, 33 Neb. 859, 29 Am.
St. Bep. 515, 51 N. W. 240, holding property of a public bridge com-
pany cannot be sold, in absence of statutory authority, under ordi-
nary execution; dissenting opinion in State v. Austin etc. By. (Tex.
Civ.), 60 S. W. 887, majority holding situs of intangible property
of railroad to be distributed wherever its tangible property is located.
See note, 35 Am. St. Bep. 402.
If Franchise can Only be Exercised on a particular lot, such lot
cannot be sold under execution.
See notes, 35 Am. St. Bep. 405, 406; 20 L. B. A. 73d.
50 Tex. 555^62, POBCHELEB v. BBONSON.
In Absence of Averment of Different Law or Procednre, foreign
judgment will be construed as having same effect as domestic judg-
ment.
Approved in International etc. B. B. v. Moody, 71 Tex. 618, 9 S.
W. 466, James v. James, 81 Tex. 378, 16 S. W. 1088, J. B. Bosenthal
Millinery Co. v. Lennox (Tex.), 50 S. W. 401, Blcthen v. Bonner,
93 Tex. 143, 53 S. W. 1016, Hilburn v. Harris, 2 Tex. Civ. 398, 21 S.
W. 573, Burnham v. McMlchael, 6 Tex. Civ. 499, 26 S. W. 888,
Southern Pacific Co. v. Graham, 12 Tex. Civ. 572, 34 S. W. 138, Hern-
don V. Vick, 18 Tex. Civ. 586, 45 S. W. 853, Gill v. Everman, 94 Tex.
214, 59 S. W. 532, and Drane v. Gunymere, 2 Posey U. C. 501, all
reaffirming rule.
Want of Material Averments as to foreign judgments cannot be
supplied by evidence at the time.
Approved in Peet v. Hereford, 1 Tex. Ap. Civ. 502, facts not al-
leged cannot constitute basis for a judgment.
Correct Judgment is not Beversible because judge assigned wrong
reason for judgment.
Approved in Wassenick v. Ireland (Tex. Sup.), 9 S. W. 204, re-
affirming rule.
855 NOTES ON TEXAS BEPOBTS. 50 Tex. 562-583
50 Tez. 662^73, PONOE ▼. MeWHOBTSR.
Where One Contracting Pijrty hM been induced to alter his position
because of the parol contract to that it would be fraud to set up
its invalidity, equity will take it out of statute of frauds.
Approved in Hibbert v. Aylott, 52 Tex. 533, where tenant contracted
by parol with landlord for purchase of the leased premises at expi-
ration of lease, and placed valuable improvements in meantime, but
landlord died before lease expired; Westfall v. Perry (Tex. Civ.),
23 S. W. 741, holding statute of frauds is no defense to action for
damages for breach of contract where consideration has been paid.
Possession Taken Together With Improvements made constitute
notice, where it was of such character as to be notorious, irrespective
of actual notice.
See note, 13 L. B. A. (n. s.) 65.
50 Tex. 678-678, GATLOBD ▼. LOUaHBIDOE.
An Express Lien for Money advanced for purchase of material used
on homestead executed by husband is of no effect as against his
widow.
Approved in Miner v. Moore, 53 Tex. 228, and Blevins v. Cameron,
2 Posey U. G. 463, both reaffirming rule.
The Mechanic's Lien Law does not give a lien to one who loans
money for purchase of materials.
Approved in Ellerman v. Wurz (Tex. Sup.), 14 S. W. 333, reaffirm-
ing rule; Warner etc. Mfg. Co. v. Houston (Tex. Civ.), 28 S. W. 407,
holding mechanic's lien can be fixed only in manner prescribed by
statute; Campbell v. McCampbell (Tex. Civ.), 34 S. W. 973, holding
no mechanic's lien is created by loan of money to improve homestead;
Cadenasso v. Antonelle, 127 Cal. 387, 59 Pac. 766, holding sureties
in construction bond not liable for moneys advanced by third par-
ties to pay for labor and material furnished. See note, 79 Am. Dec.
277.
Distinguished in Hawkins v. Haney, 1 Tex. Ap. Civ. 395, holding
subcontractor not entitled to judgment on facts alleged.
The Word ''Material," as Used In Mechanic's Lien Law, means some
character of material entering into construction of the building and
forming component part thereof.
Approved in Huck v. Gaylord, 50 Tex. 581, reaffirming rule; Van
Calvert v. McKinney, 2 Posey U. C. 347, construing "paint" to be ma-
terial.
60 Tex. 578^83, HUOK ▼. GATLOBD.
Section 47, Article 12, of constitution of 1869, gave lien only to
"mechanics and artisans," and not to "materialmen."
Approved in Caulfield v. Polk, 17 Ind. Ap. 435, 46 N. E. 934, re-
affirming rule; American Badiator Co. v. American Bonding etc. Co.,
72 Neb. 102, 100 N. W. 138, contractor's bond for erection of public
building conditioned for payment of laborers and materialmen is
merely common-law bond as to latter subject; Erath v. Allen, 55 Mo.
Ap. 115, holding "subcontractor" is not a "mechanic" or "laborer."
See note, 79 Am. Dec. 269.
Section 37, Article 16, constitution of 1876, gave liens not only to
mechanics and artisans, but also to "materialmen."
Approved in Van Calvert v. McKinney, 2 Posey, 347, one furnishing
paint for building is entitled to lien; Farmers' Loan Co. y. Canada
50 Tex. 583-598 NOTES ON TEXAS REPORTS. 855
etc. Ry., 127 Tnd. 257, 26 N. E. 785, 11 L. R. A. 740, holding laborer
or materialman ia not subcontractor.
Distinguished in Hawkina ▼. Hanej, 1 Tex. Ap. Civ. 395, holding
subcontractor not entitled to judgment under facts pleaded.
Under Act of November 17, 1871, claim for lien could be fixed and
secured by filing contract or account with district clerk for record
within six months after its maturity.
Approved in Fagan v. Boyle etc. Machine Co., 65 Tex. 331, fact
of appointment of receiver before fixing lien does not affect lienor's
rights if he fixes his lien within prescribed time; Trammell v. Mount,
68 Tex. 215, 2 Am. St. Rep. 483, 4 S. W. 379, lien when fixed relates
back to time when work or material was furnished.
50 Tex. 583-598, MILLEB ▼. BB0WN80N.
In Trespass to Try Title, a patent to plaintiff is prima facie evi>
dence of title.
Approved in Roach v. Fletcher, 11 Tex. Civ. 227, 32 S. W. 586,
and De Cordova v. Bliss, 12 Tex. Civ. 533, 34 S. W. 147, both reaffirm-
ing rule.
Authority to Patent npon First-class Headlight Clainui is based on
traveling board's report of its genuineness, or if adverse, by suit es-
tablishing such genuineness.
Approved in Pope v. Anthony, 29 Tex. Civ. 300, 68 S. W. 522^
holding headright certificate was duly examined and recommended
by traveling board, though number and date as given in board's re-
port did not correspond with its true number and date; Spofford v.
Bennett, 55 Tex. 302, holding finding by traveling board that certifi-
cate is genuine and legal validates it, although they have not rec-
ommended it for patent; Winsor v. O'Connor, 69 Tex. 579, 8 S. W.
523, location on "titled" lands is void notwithstanding a patent is-
sued thereon by mistake was canceled.
PoBsessicm by One Having No Title or Claim will not presume a
grant to someone else.
Approved in French v. Grenet, 57 Tex. 279, reaffirming rule; Mc-
Kinney v. Brown, 51 Tex. 97, where the certificate was neither rec-
ommended nor established by suit; White v. Martin, 66 Tex. 341,.
17 S. W. 728, void land certifi<;ate cannot be the basis of a right.
Distinguished in Int. & G. N. Ry. v. Timmermann, 61 Tex. 663,
where the facts were different.
Title Through Tax Title on Land surveyed under void certificate
forms no basis for improvements in good faith.
Approved in Armstrong v. Oppenheimer, 84 Tex. 368, 19 S. W.
521, reaffirming rule; House v. Stone, 64 Tex. 683, 685, 686, a tax
deed void on its face will not support improvements made in good
faith; Greenwood v. M'Leary (Tex. Civ.), 25 S. W. 711, holding
person does not make improvements in good faith if knowing of
claim of another at time of taking deed; Settegast v. O'Donnell,
16 Tex. Civ. 57, 41 S. W. 85, to support improvements in good
faith defendant must have believed his title superior to any ether
who might be a claimant to the property.
To Preclude Recovery of Bents by plaintiff in trespass to try title
because of nonpayment of taxes, such nonpayment must be shown by^
direct evidence.
Approved in Clark v. Smith, 59 Tex. 280, reaffirming rule.
857 NOTES ON TEXAS BEPOETS. 50 Tex. 598-614
50 Tex. 508-601, KAMISEZ ▼. McCI^NE.
Under Probate Act of 1870, petition for review of probate pro-
ceedings was sufficient if it set out substance of order to be re-
viewed.
Approved in Ward v. Ward, 1 Posey XT. 0. 125, rule approved, but
holding petition seeking to revise proceedings in itdministration
should be accompanied by a copy of such proceedings.
Bin of Beview of probate proceedings is maintainable under pro-
bate act and constitution.
Approved in Young v. Gray, 60 Tex. 545, where bill of review was
in regard to the final account and settlement of deceased ward's
guardian.
Petition to Bevoke Order granting administration on ground of
fraud is within time if filed within two years from date of order.
Approved in Williams v. Pollard (Tex. Civ.), 28 S. W. 1022, rec-
ogniziiig two years as proper limitation for bill of review in probate
matters. See note, 49 L. B. A. 228.
50 Tex. 601-614, McCAMPBELL v. HENDEB80N.
Death of Defendant in Action for Debt does not ipso facto abate
the suit.
Approved in Heard v. Busby, 61 Tex. 14, reaffirming rule.
Where There has Been, and can be, Ko Administration, and heirs
are in possession of ancestor's property, they may be sued as his per-
sonal representatives.
Approved in Webster v. Willis, 56 Tex. 472, Low v. Felton, 84
Tex. 385, 19 S. W. 696, Byrd v. Ellis (Tex. Civ.), 35 S. W. 1071,
Fleming v. Ball, 25 Tex. Civ. 211, 60 S. W. 986, Turman v. Bobert-
son, 3 Tex. Ap. Civ. 264, and Peters v. Hood, 2 Tex. Ap. Civ. 327,
all reaffirming rule; Blinn v. McDonald, 92 Tex. 613, 50 S. W. 931,
holding that possession by heirs without administration does not
subject them to personal liability beyond such lien as may be en-
forced against the property so held; Buchanan v. Thompson, 4 Tex.
Civ. 238, 23 S. W. 328, reaffirming rule where there is only one debt
against the estate and heirs are in possession without lapse of four
years; Middleton v. Pipkin (Tex. Civ.), 56 S. W. 242, holding per-
son converting property having died, recovery may be had against
legal representatives or heirs.
In Snlt Against Heirs on a demand against their ancestor, plain-
tiff cannot testify to any transaction with or statement by the an-
cestor.
Approved in Parks v. Caudle, 58 Tex. 221, and Barttlingck v.
Harriman, 16 Tex. Civ. 463, 41 S. W. 885, both reaffirming rule;
Edelstein v. Brown, 100 Tex. 405, 123 Am. St. Bep. 816, 100 S. W.
130, where children of one who had lived with defendant and passed
as his wife sued him for her interest as such in community property,
he cannot testify that they were never married at common law or
otherwise; Baugh v. Geiselman, 23 Tex. Civ. 144, 55 S. W. 615, de-
fendant cannot testify to transaction between him and decedent in
action by administrator; Johnson v. Lockhart, 16 Tex. Civ. 35, 40
S. W. 641, not allowing defendant in suit by administrator to cancel
note reserving vendor's lien to testify that the note was unpaid.
Distinguished in Lewis v. Whitworth (Tex. Civ.), 54 S. W. 1079,
holding deed being formally executed and acknowledged cannot be
impeached by circumstances attending execution in absence of fraud.
50 Tex. 614-^37 NOTES ON TEXA^ BEPOBTS. 858
It Seems That Hein are Bntt ^'Bepresentatlvea'' of their ancestor
that a pending suit may be revlTed or original brought against
them.
Approved in Willoughby v. St. Paul etc. Ins. Co., 80 Minn. 436,
83 N. W. 378, the word "representative," used in connection with
an estate, includes those who succeed to his rights and liabilities.
50 Tez. 614-630, 32 Am. Bap. 613, ITRTJiTSIl ▼. COBPITS OHBISTL
Cltj is not Liable for Negligent Performance by ite officers of an
ordinance for the public benefit.
Approved in Wallace v. Dallas, 2 Posey IJ. C. 426, city is not
liable for injuries because of unsJLillfulness of its officers in grad-
ing a street. See notes, 73 Am. Dec. 264; 46 Am. St. Bep. 765.
A Public is One Which Ckmcems the whole community.
Cited in Lenzen v. New Braunfels, 13 Tez. Civ. 354, 35 S. W.
350, arguendo, while discussing numerous authorities on question
of liability of city for its failure to supply water for extinguishing
fires.
Olty is not Liable for Destruction of Property by its fire depart-
ment to prevent spread of the fire.
Approved in Livingston v. Ellis County, 30 Tex. Civ. 21, 68 S. W.
724, upholding statute authorizing destruction of animals having
glanders, and providing for compensation of owner if animal has any
value; Whitfield v. Paris, 84 Tex. 433, 31 Am. St. Bep. 71, 19 S. W.
567, 15 L. B. A. 783, holding city not liable where policeman, in shoot-
ing at unmuzzled dog, pursuant to ordinance, injured plaintiff; Givens
V. Paris, 5 Tex. Civ. 708, 24 8. W. 974, city is not liable for in-
juries from being gored by cow chased by policeman while attempt-
ing to impound it pursuant to ordinance; Bates v. Houston, 14
Tex. Civ. 289, 37 S. W. 384, city is not liable for acta of its health
officers in quarantining a citizen because of alleged smallpox; Dal-
las V. Allen (Tex. Civ.), 40 S. W. 325, holding city- may destroy
property when necessary for promotion of health or to prevent spread
of disease. See notes, 47 Am. Dec. 207, 208, 210; 16 Am. St. Bep.
615; 102 Am. St. Bep. 812; 38 L. B. A. 171; 19 L. B. A. 197.
The Remedy Provided by Charter for destruction of property to
prevent spread of fire must be strictly pursued.
Approved in Hamilton Co. v. Garrett, 62 Tex. 605, holding that
where a statute creates a liability against a county and points out
a remedy, that remedy alone can be pursued; Umatilla Irr. Co. v.
Umatilla Imp. Co., 22 Or. 388, 30 Pac. 37, holding that to obtain
franchise rights a party must strictly perform all the statutory re-
quirements.
Miscellaneous. — Galveston v. Posnainsky, 62 Tex. 133, cited ar-
guendo in noting authorities in action for personal injuries sustained
from defective street.
50 Tex. 630-637, EUHLMAK ▼. BAKER.
Fraud will Only Prevent Running of Limitations until by reason-
able diligence it might have been discovered.
Approved in Alston v. Bichardson, 51 Tex. 6, Kennedy v. Baker,
59 Tex. 160, Calhoun v. Burton, 64 Tex. 516, Bass v. James, 83
Tex. Ill, 18 S. W. 336, and Gillespie v. Cooper, 36 Neb. 786, 55 N.
W. 305, all reaffirming rule; Pitman v. Holmes, 34 Tex. Civ. 489, 78
S. W. 963, where plaintiff, not knowing extent of interest in realty,
859 NOTES ON TEXAS BEPOBTS. 50 Tex. 638-650
induced by mother to believe it was bought with community funds
instead of with separate funds of deceased father, limitations did
not run against suit to set aside partition made on that basis until
she was chargeable with knowledge; Gerfers ▼. Mecke, 28 Tex. Civ.
273, 67 S. W. 146, applying rule to action by heirs for conversion by
stepfather of deceased father's interest in community personalty.
See note, 76 Am. Dec. 114.
Rnnning of Llmitatloiis will not bo Provontod where petition shows
that failure to discover the alleged fraud was due to laches.
Approved in Beissner v. Texas Express Co., 1 Tex. Ap. Civ. 458,
reaffirming rule; Luter v. Hutchinson, 30 Tex. Civ. 513, 70 S. W.
1014, holding owner of stolen animal could not recover it from in-
nocent purchaser after two years, where latter had used it openly;
Cohen v. Shwarts (Tex. Civ.), 32 S. W. 821, holding allegation that
fraud was not discovered until commencing action, without alleging
due diligence, is insufficient to remove bar of statute; Vodrie v.
Tynan (Tex. Civ.), 57 S. W. 681, holding that the facts relied on,
and not a general allegation that plaintiff could not discover the
fraud by reasonable diligence, are necessary.
Failure to Inyestigate OontontB of Bocorded Dood for seventeen
years is such laches as will not prevent running of statute of fraud.
Approved in Boren v. Boren, 38 Tex. Civ. 146, 85 S. W. 52, apply-
ing rule to cancel deed for alleged fraudulent misrepresentations as to
rights under father's will which was of record in county of plaintiff's
residence; Bowe v. Horton, 65 Tex. 93, because plaintiff's lands were
situated partly in woods and partly in river bottoms is no excuse
for ten years' failure to know their boundaries; Cooper v. Lee, 75
Tex. 122, 12 S. W. 487, instanee of dealings between attorney anf
client in which client was held guilty of laches in not examining
deeds in his possession; Bass v. James, 83 Tex. 112, 18 S. W. 336,
vendee's eonfidence in vendor's veracity is no excuse for failure to
have land surveyed; Williamson v. Wright, 1 Posey TJ. C. 719, ap-
plication to correct a judgment by parol twenty-six years after ren-
dition ia too late where no ignorance is shown.
60 Tez. 638-660, 32 Am. Bep. 621, PEISEB v. PETIOOLA&
A Sequestration Doos not Create a lien.
Approved in Peters Furniture Co. v. Dickey, 2 Posey XT. C. 238,
holding that subsequent attaching creditor cannot intervene in pre-
vious attachment suit on ground of mere irregularities.
The Begistration of a Fraudulent Mortgago does not make it prima
facie valid.
Approved in Bettes v. Weir Plow Co., 84 Tex. 547, 19 8. W. 706,
reaffirming rule. See note, 18 L. B. A. 611, 624.
Whero Well-defined Fraud is shown on face of the instrument with-
out extrinsic testimony, the court should declare its legal effect.
Approved in Scott v. Alford, 53 Tex. 93, and Eicks v. Copeland,
53 Tex. 589, 37 Am. Bep. 761, both reaffirming rule.
A Becordod Mortgage on Stock of Goods with power in mortgagor
to sell in usual course of trade without applying proceeds to mort-
gage debt is fraudulent.
Approved in Cook v. Halsell, 65 Tex. 7, and Parker v. American
etc. Bank (Tex. Civ.), 27 S. W. 1074, both reaffirming rule; McCor-
mack V. Bignall, 1 Tex. Ap. Civ. 418, applying rule to fraudulent
50 Tex. 650-654 NOTES ON TEXAS REPORTa 860
assignment where business was allowed to be continued by assignor^
See notes, 6 Am. St. Rep. 34; 15 Am. St. Rep. 914; 18 L. R. A. 62.3.
Distinguished in Crow v. Red River Co. Bank, 52 Tex. 368, 369,
where mortgage was in usual form, but mortgagor remained in pos-
session selling the goods as agent of mortgagee; Scott v. Alford, 53
Tex. 94y where possession was to be retained merely until default
while the amount of goods was largely in excess of the debt.
All Qne8ti<»is of Fraud In Fact are to be determined by the jury.
Approved in Perea ▼. Colorado Nat. Bank, 6 N. M. 11, 27 Pae.
825, reaffirming rule; Van Bibber v. Ma this, 52 Tex. 409, where
fraud is not apparent it is for the jury. See note, 75 Am. Dec. 819.
It Seems That Where the Court has Jurisdiction of the subject mat-
ter, it may adjust the rights of all parties having an interest therein.
Approved in Templeman v. Gresham, 61 Tex. 53, where district
court has jurisdiction of subject matter, it may adjust rights of all
claimants to property subject to lien.
Miscellaneous. — Peticolas v. Carpenter, 53 Tex. 27, referring to
former appeal arising out of the same case.
60 Tex. 650-654, SWAN ▼. HOUSE.
Under Probate Act of 1848, the allowance and approval of a claim
amounted to a judgment not subject to collateral attack.
Approved in Williams v. Robinson, 63 Tex. 580, 581, and Yeatman
T. Yeatman, 35 Neb. 425, 53 N. W. 386, both reaffirming rule. See
note, 65 Am. Dec. 121, 122, 125, 126.
NOTES
ON THE
TEXAS REPORTS.
GASES IN 51 TEXAS.
51 Tez. 1-7, ALSTON ▼. BICHASDSON.
Money Paid Under Mistake of Fact may be recovered, thougli
party may have had means of knowledge.
Approved in San Antonio Nat. Bank v. MeLane, 96 Tex. 55, 70 S.
W. 203, one whose mistake in pleading description of land on which
foreclosure songht has misled other party into same error cannot
deny tatter's right to have mistake corrected; Zieschang v. Helmke
(Tex. Civ.), 84 S. W. 440, construing instrument purporting to release
vendor's lien, together with note and deed of trust, as transferring
vendor's lien; Sullivan v. Owens (Tex. Civ.), 78 8. W. 374, where
defendant contracted with plaintiff to make draft for advances, with
statement attached, payment of draft made without statement no bar
to collection of overcharges contained in draft; Clack v. Taylor
County, 3 Tex. Ap. Civ. 247, permitting county to recover money
paid for damages incurred by taking land for road; Douglas Co. v.
Keller, 43 Neb. 648, 62 N. W. 62, purchaser at sale of public property
is not charged with constructive notice that proposition to sell was
defeated. See note, 55 Am. St. Bep. 517.
Limitation in Oases of Fraud Begins to Bun from time when, by
due diligence, it could have been discovered.
Approved in Pitman v. Holmes, 34 Tex. Civ. 489, 78 8. W. 963,
applying rule in suit to set aside partition made under fraudulent
representations by another that land was community property and
not separate property of plaintiff's deceased father; Luter v. Hutchin-
son, 30 Tex. Civ. 513, 70 S. W. 1014, holding holder of stolen mare
cannot recover same from innocent purchaser after two years where
latter has openly used mare; Kennedy v. Baker, 59 Tex. 160, applying
principle to case of implied trust; Brown v. Brown, 61 Tex. 49, vacat-
ing judgment in partition procured by fraud; Calhoun v. Burton, 64
Tex. 516, refusing to set aside deed as fraudulent where creditors
had constructive knowledge of contents for many years; Bass y.
James, 83 Tex. Ill, 18 S. W. 336, holding suit for deficiency in
number of acres falsely given by vendor is barred two years after
sale; Beissner v. Texas Express Co., 1 Tex. Ap. Civ. 459, applying
principle to suit on surety bond; Vodrie v. Tynan (Tex, Civ,), 57
(861)
51 Tex. 7-46 NOTES ON TEXAS BEPOBTS 862
S. W. 681, instance where facts were held sufficient to give yendee
notice of vendor's fraudulent intent; Williamson v. Wright, 1 Posey
U. C. 719, refusing correction of judgment by parol twenty-six
years after entry, where no proof of ignorance of mistake at time of
entry is made.
When Facts in Petition Show Action Barred, statute of limitation
may be pleaded by special demurrer.
Beaffirmed in Gathright v. Wheat, 70 Tex. 742, 9 8. W. 77.
51 Tez. 7-14, BCULUNS ▼. THOlflPSON.
Insorance Policy Payable to Heira of Inaared is policy for their
benefit, unless there is something on its face to show different inten-
tion.
Approved in Martin v. Moran, 11 Tex. Civ. 510, 32 S. W. 905, pro-
ceeds of insurance taken out by husband are community property
where premiums paid out of community estate; Northwestern etc.
Assn. Y. Jones, 154 Pa. 106, 35 Am. St. Bep. 813, 26 AtL 254, hold-
ing proceeds of certificate in benefit society go to heirs, and not to
executor; dissenting opinion in Estate of Breitung, 78 Wis. 39, 47
N. W. 18y majority holding insured may dispose of proceeds of pol-
icy by will.
life Insurance Policy, Payable to Heirs of Aasarod, does not form
part of his estate for payment of debts.
Approved in White v. Smith, 2 Tex. Ap. Civ. 350, Hubbard v. Tur-
ner, 93 Oa. 756, 20 S. E. 642, 30 L. B. A. 593, both following rule;
White V. White, 11 Tex. Civ. 115, 32 S. W. 49, executrix need not
inventory life insurance policy; Dulaney v. Walsh (Tex. Civ.), 37 S.
W. 616, holding probate court has jurisdiction to determine to whom
proceeds of insurance policy belong; Martin v. McAllister, 94 Tex.
569, 63 S. W. 624, 625, 56 L. B. A. 585, proceeds of insurance policy
on life of wife, payable to husband, is his separate property. See
notes, 44 Am. St. Bep. 409; 30 L. B. A. 594.
Insurance Policy Payable to Heirs or Assigns of assured is assign-
able, and not being assigned, heirs are entitled to it upon his death.
Approved in New York Life Ins. Co. v. Ireland (Tex. Sup.), 17
S. W. 619, holding where party insures for benefit of wife and chil-
dren, he cannot withdraw accumulations.
51 Tex. 14-22, OUFFT ▼. WADE.
Becelpt Given by Heir to Executor for Spedflc Amount of Money,
in full of his share in estate, is not binding upon heir as to any resi-
due coming to him as heir.
Cited in 45 Am. St. Bep. 271, note.
51 Tex. 23-26, 8ANDEB8 ▼. HOWABD.
Where Allowance in Lien of Homestead was Paid to Widow, in
suit by her to annul sale of property claimed to have been home-
stead, and improperly sold, she should tender such allowance.
Approved in Stephenson v. Marsalis, 11 Tex. Civ. 171, 33 S. W.
378, holding heirs who are parties to proceedings on final settle-
ment are estopped from recovering homestead sold by administrator
without tendering proceeds.
51 Tex. 42-46, JOHNSON ▼. GRANGER.
Under Statute of Frande, Memorandum of Sale of Lands should be
so reasonably certain within itself, or by reference to other writings.
863 NOTES ON TEXAS BEP0BT8. 51 Tex. 46-i8
that eontraet ean be made out as to parties, consideration, and subject
matter.
Approved in Watson v. Baker, 71 Tex. 747, 9 8. W. 868, following
rule; Penn v. Texas etc. Lumber Co., 35 Tex Civ. 184, 79 S. W. 844,
contract for sale of land, describing it as "the six thousand one hun-
dred acres under consideration in Tyler county," does not comply
with statute of frauds; Norris v. Hunt, 51 Tex. 614, 615, holding
where ambiguity in marshal's deed is patent, it is void for uncer-
tainty; King V. Maxey (Tex. Civ.), 28 S. W. 403, holding letters
showing alternative offer are insufficient; Bondies v. Ivey (Tex. Civ.),
31 S. W. 244, applying principle where alleged contract contained in
letters; Bondies v. Ivey, 15 Tex. Civ. 294, 39 S. W. 158, holding
proof of parol sale of land insufficient; Munk v. Weidner, 9 Tex. Civ.
493, 29 8. W. 410, holding receipt given by heirs in full satisfaction
of amount due from mother's estate insufficient. See note, 70 Am.
Dee. 322.
Where Allegatioiui of Complaint are Iiumfflcient to entitle plaintiff
to judgment, question of sufficiency of pleading should be raised by
demurrer.
Approved in Ashcroft v. Stephens, 16 Tex. Civ. 345, 40 S. W.
1038, failure to verify affidavit of plea of failure of consideration is
waived by going to trial without exception.
Failure to Instmct Jury upon Issnee Biade by Pleadings is not
reversible error unless proper instructions are asked at the time to
supply such deficiency.
Approved in Hawkins v. Cramer, 63 Tex. 102, Myer v. Fruin
(Tex. Sup.), 16 8. W. 870, Templeton v. Green (Tex. Civ.), 25 S. W.
1074, all following rule; Black well v. Hunnicutt, 69 Tex. 277, 9 8.
W. 318, refusing to reverse when charge is abstractly correct, and
no instructions requested; Silberberg v. Pearson, 75 Tex. 290, 12
S. W. 851, holding if party thinks charge insufficient, he should
request additional instructions; Texas etc. By. v. Bobinson, 4 Tex.
Civ. 125, 23 8. W. 435, holding requested instructions should state
proposition of law, and not merely indicate point; Davis v. Wheeler
(Tex. Civ.), 23 8. W. 435, request in general terms that charge be
given on certain issue is insufficient; Dawson v. Sparks, 1 Posey IT.
C. 757, where charge could not have worked injury, judgment will
not be reversed.
61 Tez. 46-48, ABNOLD ▼. HOOKNET.
BUI of EzceptionB to Oyermling of Application for Oontinnanco
should show whether it was first or second application.
Approved in City Nat. Bank v. Stout, 61 Tex. 570, Philipowski
T. Spencer, 63 Tex. 605, Land v. State, 34 Tex. Cr. 341, 30 8. W.
791, Halliburton v. State, 34 Tex. Cr. 411, 31 8. W. 297, Washing-
ton V. State, 35 Tex. Cr. 155, 32 8. W. 693, all following rule; Barth
T. Jester, 3 Tex. Ap. Civ. 268, holding affidavit for second continu-
ance need not show that absent witnesses were present at first
continuance; Coleman v. Beardslee (Tex. Sup.), 16 8. W. 1012, hold-
ing court will not presume that continuance was the first; Missouri
etc. By. V. Wright, 19 Tex, Civ. 48, 47 8. W. 57, application for con-
tinuance is addressed to sound discretion of court; Massie v. State,
30 Tex. Ap. 71, 16 8. W. 773, diligence used to obtain testimony of
absent witness must appear.
61 Tex. 48-64 NOTES ON TEXAS REPORTS. 664
Legislative Intent Governs in construction of statutes.
Approved in Ellis County v. Thompson, 95 Tex. 32, 66 S. W. 50,
construing act of 1897, relative to fees allowed to be retained hj
county officers.
61 Tex. 48-61, RUNNELS v. BEL0EN.
Defendant is Competent Witness to prove acts and declarations
of plaintiff, since deceased, whose deposition relative thereto had
been admitted in evidence.
Approved in Heard ▼. Busby, 61 Tex. 14, refusing to admit evi-
dence by plaintiff of details of transaction with intestate claimed
to have resulted in contract sued onj O'Neill v. Brown, 61 Tex. 38,
applying principle on second trial; Simpson v. Brotherton, 62 Tex.
171, wife not competent to testify relative to transactions between
husband and plaintiff's decedent when she had community interest
in subject matter; Moores ▼. Wills, 69 Tex. 112, 5 S. W. 676, per-
mitting testimony to show land claimed under deed to deceased
creditor was homestead.
Distinguished in Ivey v. Bondies (Tex. Civ.), 44 S. W. 918, refus-
ing testimony on second trial to contradict deposition of deceased
taken at first trial.
61 Tex. 61-64, TEXAS LAND CO. v. WILLIAMS.
Ceitiflcate of Acknowledgment of Deed must be authenticated by
seal of officer taking same in order to entitle it to record under act
of May 12, 1846.
Approved in Settegast v. Charpiot (Tex. Civ.), 28 S. W. 580, ap-
plying principle to deed certified by judge; Uhl v. Musquez, 1 Posey
IT. C. 657, refusing to admit in evidence copy of title, original of
which was not authenticated by land commissioner. See notes, 41
Am. Dec. 173; 108 Am. St. Rep. 554.
Supreme Court will not Revise Action of District Court in giving
or refusing instruction, unless, when applied to facts, manifest injury
is done complaining party.
Approved in Dotson v. Moss, 58 Tex. 155, following rule; Ford-
tran v. Ellis, 58 Tex. 252, refusing to reverse for refusal to give
charge abstractly correct, but not applicable to evidence; Commer-
cial etc. Assur. Co. ▼. Meyer, 9 Tex. Civ. 15, 29 S. W. 96, applying
principle to refusal to charge as to partial loss where building
practically destroyed; Dawson v. Sparks, 1 Posey U. C. 757, apply-
ing principle in suit to recover land given in consideration of cattle;
Galveston etc. By. v. Worthy (Tex. Civ.), 27 S. W. 429, applying
principle in suit for damages caused by injuries; Texas etc. Ry. v.
Johnson, 2 Tex. Civ. 155, refusing to reverse where erroneous charge
caused no manifest injury.
Where Entry upon Land is made under color of title, whether by
owner or by a tenant, party entering acquires constructive possession
to extent of boundaries in title entered under, if there is no conflict-
ing possession.
Approved in Peden ▼. Crenshaw (Tex. Civ.), 81 S. W. 372, applying
rule to possession of alley; Read y. Allen, 63 Tex. 158, upholding
instruction which followed the rule; Craig v. Cartwright, 65 Tex. 424,
possession of land not included in tract claimed under limitation
does not stop statute; Rushing v. Chandler, 2 Posey U. C. 604, pos-
session by tenant is sufficient to sustain possession by limitation;
865 NOTES ON TEXAS BEPOBTS. 61 Tex. 65-81
Hall T. Clountz, 26 Tex. Civ. 354, 63 S. W. 944, ten years' adverse
possession hy inclosing thirty-five acres of a tract of two hundred
and seven acres does not constitute adverse possession of the two
hundred and seven acre tract. See note, 88 Am. St. Bep. 712.
Distinguished in Bowles v. Brice, 66 Tex. 730, 2 S. W. 733, hold-
ing party in whose favor statute of limitations is running does not
lose adverse possession by leasing part.
Limited in Anderson v. Jackson, 69 Tex. 347, 6 S. W. 576, holding,
in case of conflict of grants, claimant under junior title can only
avail himself of limitations as to part actually occupied.
A Lease of Land not Positiye tn Its Terms as to amount leased
does not necessarily cover whole tract, but naturally includes premises
occupied.
Distinguished in Puryear v. Priery, 16 Tex. Civ. 325, 326, 40 S.
W. 449, 450, holding where lands are uninclosed and grantee had no
constructive notice of limits he has title to limits prescribed by his
deed.
Orantea may Proye Examined Copy of Deed to him where original
lost and subscribing witnesses are dead or out of state.
See note, 35 L. B. A. 339, 343.
51 Tex. 65-81, JOHNSON ▼. BBOWN.
Evidence of Statements contradictory to testimony of witness is
admissible, though witness testified he did not remember the state-
ments.
Approved in Pitman v. Holmes, 34 Tex. Civ. 491, 78 S. W. 964,
following rule; Fuller v. State, 30 Tex. Ap. 564, 17 S. W. 1109, ap-
plying principle in murder case; Allen v. Conn (Tex. Civ.), 37 S. W.
193, applying principle where party testifies that certain word in
partnership dissolved was intentionally inserted.
Fact of Witness Making Contradictory Statements, and not his
recollection of them, is the basis of their introduction.
Approved in Long v., State, 17 Tex. Ap. 130, arguendo.
Where Impeachment of Witness was Attempted by showing con-
tradictory statements, and where his testimony was supported by
testimony of general good character, rebutting evidence of bad
character is admissible.
Approved in Harris v. State, 49 Tex. Cr. 340, 94 S. W. 229, uphold-
ing introduction before state closed of testimony of state's witness'
good reputation, where he had been put through rigid cross-examina-
tion tending to bring him into disrepute; Thomas v. State, 18 Tex.
Ap. 223, admitting proof of good character where witness attempted
to be impeached by proof of contradictory statements; Ledbetter v.
State (Tex. Cr.), 29 S. W. 480, admitting evidence of good character
where witness for prosecution was shown to have made contradictory
statements. See note, 82 Am. St. Bep. 65.
Limited in Phillips v. State, 19 Tex. Ap. 164, admitting testimony
of good character of witness sought to be impeached as to isolated
facts on cross-examination.
Introduction of Bebuttal Evidence to impeach witness is in dis-
cretion of court.
Approved in Bowles v. Glasgow, 2 Posey IT. C. 719, holding court
may limit number of witnesses to sustain good character of person.
A Witness can be Impeached by Evidence of his general reputa-
tion only, and not of particular facts.
2 Tex. Notes— 55
61 Tex. 65-81 NOTES ON TEXAS REPORTS. 866
Approved in Holbert v. State, 9 Tex. Ap. 226, 35 Am. Bep. 741^
impeaching witness cannot testify as to whether or not he would
believe party impeached; Bluitt v. State, 12 Tex. Ap. 41, holding
party knowing reputation of witness may be asked whether he is
worthy of belief; Wolf v. Ferryman, 82 Tex. 121, 17 8. W. 776, up-
holding refusal to charge that reputation of having killed negro
should be considered in suit for false imprisonment; Gulf etc. By.
V. Johnson, 83 Tex. 633, 19 S. W. 153, witness cannot be impeached
by being asked whether or not he is army deserter; Mayes v. State,
33 Tex. Or. 42, 24 S. W. 422, permitting witness who knows another's
reputation to testify as to whether or not he is worthy of belief;
Hill V. Dons (Tex. Civ.), 37 S. W. 639, witness cannot be asked
whether or not he has been indicted for crime; People v. Adams,
137 Cal. 582, 70 Pac. 663, where self-defense pleaded in murder ease^
negative evidence of good reputation of deceased for peaceableness
is proper. See note, 22 L. B. A. (n. s.) 650; 14 L. B. A. (n. s.) 702.
In Impeaching Witness by Proving Bad Bepntation, after impeach-
ing witness prima facie qualifies to general reputation of other wit-
ness, opposite party should have right to cross-examine as to means of
knowledge.
Beaffirmed in Olapp v. Engledow, 72 Tex. 256, 10 S. W. 464.
Mere Declarations, or Written Instructions to destroy will, unac-
companied with some act of revocation, do not amount to revocation.
Cited in McElroy v. Phink (Tex. Civ.), 74 S. W. 63, following rule.
See note, 84 Am. Dec. 631.
Declarations of Testator cannot be received to impeach will for
duress, unless made at time of execution of wUl.
Approved in Kennedy v. Upshaw, 64 Tex. 419, refusing to admit
declarations of testator made three days after execution of codicil.
Limited in Estate of Gregory, 133 Cal. 136, 65 Pac. 317, declara-
tions of testator made at about date of will that persons charged
with procuring will were hounding her to death trying to get her
to make such will are inadmissible.
In Contest as to Oenalneness of Will, proof of testator's feelings
toward principal legatees in alleged will before and after its date is
admissible.
Approved in McElroy v. Phink, 97 Tex. 157, 76 S. W. 755, on issue
of revocation of lost will, last shown to be in hands of husband of
testatrix who had called on custodian for it, declarations of testatrix
that she had sent for and destroyed it are admissible; Bobinson v.
Stuart, 73 Tex. 270, 11 S. W. 276, admitting testator's letters to
show state of feeling toward beneficiary; Hoppe v. Byers, 60 Md.
394, admitting rebutting evidence of genuineness of will after evi-
dence of forgery.
Limited in Swope v. Donnelly, 190 Pa. 421, 70 Am. St. Bep. 638,.
42'At]. 882, declarations of testator are insufficient to establish execu-
tion of will.
Miscellaneous. — Cockrill v Cox, 65 Tex 673, cited to point that
will contest must be tried by jury if demanded; Tipton v. Thomp-
son, 21 Tex. Civ. 144, 50 S. W. 641, holding evidence of chastity
immaterial in suit by wife for sale of intoxicants to husband;
Missouri etc. By. v. De Bord, 21 Tex. Civ. 702, 53 S. W. 593, witness
in civil action is not disqualified by conviction for felony; McElroy
T. Phink, 97 Tex. 159, 76 S. W. 755.
867 NOTES ON TEXAS BEPOBTS. 61 Tex. »l-»4
61 Tex. 81-83, STATE ▼. TUKSTALU
JnrlBdiction of Snpreme Court is Bestricted by section 3, article
5, of the constitution of 1876 to civil suits, of which district courts
have appellate or original jurisdiction.
Distinguished in State v. De Gross, 53 Tex. 398, upholding jurisdic-
tion of district court in quo warranto wher'e value of office is over
five hundred dollars.
Proceedings Against Attorney, charging him with fraudulent or
dishonorable conduct, with object of disbarment, is a criminal or
quasi criminal case.
Beaffirmed in Scott v. State, 31 Tex. Cr. 406, 20 S. W. 832; Ex
parte Mason, 29 Or. 25, 54 Am. St. Bep. 775, 43 Pac. 653. See notes,
95 Am. Dec. 335; 2 Am. St. Bep. 848; 2 Am. St. Bep. 862.
No Appeal Lies to Snpreme Conrt from judgment in district court
for defendant, in proceeding against attorney, charging him with
fraudulent or dishonorable conduct.
Distinguished in Scott v. State, 6 Tex. Civ. 346, 348, 25 S. W.
338, 339, arguendo; Scott v. State, 86 Tex. 322, 24 S. W. 789, appeal
lies to court of civil appeals from district court judgment disbarring,
an attorney. See note, 95 Am. Dec. 341.
61 Tex. 84r-88, OASTLEMAN ▼. PONTON.
The Line of Comer Established In Fact by Surveyor controls the
erroneous call for the survey.
Approved in Webb v. Brown, 2 Posey IT. 0. 42, Shelton v. Bone
(Tex. Civ.), 26 S. W. 225, Busk v. Manghum, 14 Tex. Civ. 627, 37
S. W. 461, all following rule; Sloan v. King,. 33 Tex. Civ. 543, 77
S. W. 51, where uncertainty in calls in deed arises only where effort
made to apply them to land, parol admissible to dispel uncertainty;
Koepsel v. Allen, 68 Tex. 447, 4 S. W. 856, holding question of loca-
tion of survey is for jury where there is discrepancy between field-
notes and calls; Webb v. Brown, 2 Posey U. C. 39, holding distances
are cgntrolled by boundaries as described in deed. See note, 129
Am. St. Bep. 1006.
Distinguished in McAnineh v. Freeman, 69 Tex. 447, 4 S. W. 370,
holding marked corners control without regard to distance.
The Conrt will not Presume that surveyor did not actually run
the lines of his survey, in absence of testimony.
Beaffirmed in Webb r. Brown, 2 Posey U. C. 40.
61 Tex. 89-94, GALVESTON INS. 00. ▼. LONG.
Where Insurance Policy specifies that it is to beeome void if
premises become vacant, it is error to charge that no recovery can
be had unless the risk was increased by vacancy.
Approved in East Texas Fire Ins. Co. v. Smith, 3 Tex. Ap. Civ.
344, and Sun Fire Office v. Hodges, 3 Tex. Ap. Civ. 326, both up-
holding stipulation as to forfeiture of policy if premises become
vacant.
Distinguished in Eakin v. Home Ins. Co., 1 Tex. Ap. Civ. 156, hold-
ing that it is incumbent on insurer to show increase of risk due te
vacancy under stipulation.
When, In Transcript^ Statement of Facts Proper is followed by
what purport to be interrogatories and answers not embodied in
such statement, they form no part of record, and appellant is taxed
with cost of their insertion.
51 Tex. 94-109 NOTES ON TEXA.8 BEPOBTS. 868
I
Beaffirmed in Stephenson y. ChappeU, 12 Tex. Civ. 303, 36 S. W.
485.
Where Tenns of Contract of Insurance are dear, eourts mast en-
force the contract as made by the parties.
Approved in East Texas Fire Ins. Go. v. Kempner, 87 Tex. 236,
47 Am. St. Bep. 100, 27 S. W. 122, holding forfeiture by temporary
vacancy is not revived by later occupancy; Palatini Ins. Co. ▼.
Brown (Tex. Civ.), 34 S. W. 465, 466, holding warranty in policy to
comply with iron-safe clause is broken where books are not locked
in safe.
61 Tex. 94-97, McKINNET ▼. BBOWN.
Where an Unrecommended Certificate is Void, a special statute
granting a certificate in lieu thereof is a gratuity, and grantee therein
named takes benefits.
Approved in Balston ▼. Skerrett (Tex. Sup.), 17 S. W. 239, holding
where soldier died prior to passage of General Laws of 1883, page
38, heirs took title; Leonard v. Bives (Tex. Civ.), 33 S. W. 292, hold-
ing donation by special legislative grant to heirs of husband and wife
vests in heirs.
Distinguished in Bogers v. Kennard, 54 Tex. 35, holding land cov-
ered by bounty warrant issued to heirs of soldiers killed in battle,
and upon which patent issued, goes to administrator; Hines v. Thorn,
57 Tex. 102, construing act for relief of colonist; Balston v. Skerrett,
82 Tex. 489, 17 S. W. 844, holding under act of March 31, 1870, heirs
of person holding under warranty deed take nothing.
51 Tex. 98-103, FIAEE ▼. NUSE.
Where Trust Deed is Ezecated on Two Lots to secure two notes,
and lots are sold to different persons, each purchaser assuming pay-
ment of one note, tender of payment on one note, when other note is
unpaid, does not entitle purchaser to release.
Cited in notes in 77 Am. Dec. 477, 485.
61 Tex. 103-109, DEWITT ▼. OPPENHEIMER.
Sheriff in Levying an Attachment should exercise such caution and
discretion as would influence conduct of prudent and discreet men
in managing their own affairs.
Approved in Fatheree v. Williams, 13 Tex. Civ. 433, 35 S. W. 326,
applying principle to sufiSciency of petition in suit against sheriff
for wrongful levy; Everhart v. O'Bannon, 1 Tex. Ap. Civ. 748, ap-
plying principle to attachment levy. See note, 95 Am. St. Bep. 102.
In Making a Levy there should be proper allowance for deprecia-
tion in value incident to property seized and forced sale, and amount
should cover costs and expenses.
Approved in Atcheson v. Hutchison, 51 Tex. 234, upholding levy
as not excessive.
The Measure of Damages in Suit Against Sheriff for failure to
attach sufficient property to satisfy judgment is actual damage sus-
tained.
Reaffirmed in Jacobs v. Shannon, 1 Tex. Civ. 400, 21 8. W. 388.
Indemnity Bond Executed After Levy to protect levying officer Is
valid.
Approved in Hines v. Norris (Tex. Civ.), 81 S. W. 792, indemnity
bond given constable, after illegal levy of execution to induce him.
not to return property, is enforceable against sureties.
869 NOTES ON TEXAS BEPOBTS. 51 Tex. 109-121
61 Tex. 109-111, OOKaDON ▼. MONROE.
Wbere Two Alleged Partaen are Sued on aa Account, under prayer
for general relief, recovery may be had against defendant, against
whom aeeount is proven.
Approved in Sabin v. Mitchell, 27 Or. 70, 39 Pae. 636, following
rule; Keithley v. Seydell, 60 Tex. 82, allowing judgment on lost note
against defendants proved to have executed it, though others joined.
61 Tex. 112-116, OHUNN ▼. QBAT.
In Suit upon Foreign Judgment, record of such judgment may be
contradicted as to jurisdictional facts, notwithstanding recital therein
that they exist.
Approved in Bedua v. Burnett, 59 Tex. 581, following rule; South-
em Ins. Go. V. Wolverton Hardware Go. (Tex. Sup.), 19 S. W. 615,
applying principle to suit on judgment against insurance company
where process was served on agent; Morgan v. Morgan, 1 Tex. Giv.
317, 21 S. W. 155, admitting evidence of residence to show that
divorce granted in another state was void; S. A. Wood Machine Go.
V. Brown (Tex. Giv.), 26 S. W. 308, admitting testimony as to service
of process in suit upon which judgment herein sued on was based;
Babcock v. Marshall, 21 Tex. Giv. 147, 50 S. W. 728, judgment of
sister state is attackable for fraud. See note, 75 Am. Dec. 150.
61 Tex. 115>121, McLOUTH v. HURT.
Registration of Trust Deed is constructive notice only of what
appears on face of deed as registered.
Approved in Lyon v. Plankinton Bank, 15 S. D. 409, 89 N. W. 1020,
recorded deeds calling for land in Minnesota cannot be extended by
parol to cover land in South Dakota as against one acquiring title
since date of. deed; Graham v. Hawkins, 1 Posey U. G. 519, purchaser,
under deed reciting certain conditions, is not bound by such recitals
to take notice of prior unrecorded deed; Gulf etc. By. v. Gill, 5 Tex.
Giv. 501, 23 S. W. 144, holding deed reciting land as in certain block
in certain addition, without stating dimensions, is not notice to
purchaser of part under different description; Laughlin v. Tips, 8
Tex. Giv. 653, 28 S. W. 552, holding record of deed of certain tract
containing certain number of acres is not notice to grantee under
deed granting less acres and giving more particular description;
Gulf etc. Ry. v. Gill, 86 Tex. 286, 24 S. W. 503, applying principle
where deed was made under unrecorded railroad map; Hart v. Pat-
terson, 17 Tex. Giv. 593, 43 S. W. 546, holding, though record of trust
deed omit clause relative to appointment of trustee, it is notice of
lien to attaching creditor; White v. McGregor, 92 Tex. 560, 71 Am.
St. Bep. 880, 50 S. W. 566, holding sheriff's deed is not notice of
character of claim under which sale was made; Neyland v. Texas
etc. Lumber Go., 26 Tex. Giv. 421, 64 S. W. 698, arguendo while
holding party chargeable with ascertainable facts only where he has
actual knowledge of the deed or its record.
Distinguished in Garter v. Hawkins, 62 Tex. 395, holding pur-
chaser has notice where description is ambiguous on its face.
Limited in Saunders v. Hartwell, 61 Tex. 688, holding, where
description in recorded purchase money notes and deed are so sim-
ilar as to put person on inquiry, purchaser is charged with notieo
of lien; and in Hudson v. Randolph, 66 Fed. 220, holding error of
recorder in copying description does not nullify effect of notice.
61 Tex. 121-129 NOTES ON TEXAS BEPOETS. 870
51' Tex. 121-129, BRANDON ▼. GULF OITT ETC. MFO. OO.
NegUffence Ib Qnestioii of Fact for the jury under proper instnie-
tions from court.
Approved in Galvoston etc. B. B. t. Le Gierse, 51 Tex. 202, hold-
ing failure of train to stop statutory time at station does not justify
getting aboard while train in motion; International etc. By. y. Bob-
ertson (Tex. Giy.), 27 S. W. 565, holding passenger crossing railroad
track at only crossing accessible to him is not necessarily negligent.
Party Seeking Bedxess for Breach of Contract cannot recover for
injurious consequences of breach unless he used due diligence to pre-
vent loss thereby.
Approved in O'Neil ▼. Davis, 1 Tex. Ap. Civ. 184, following rule;
H. & T. etc. By. v. Bichards, 59 Tex. 375, holding section-hand, walk-
ing on track upon which he knew train was due, is guilty of
contributory negligence.
Damages mast be Both the Natural and proximate consequences
of act complained of.
Approved in Waco Water Co. v. Sanford, 1 Tex. Ap. Civ. 77, fol-
lowing rule; Greenwood v. Pierce, 58 Tex. 133y holding purchaser
of lots in depot town cannot recover value of improvements put on
lots made on representations that railroad would be built; Harmon
V. Callahan (Tex. Civ.), 35 S. W. 706, refusing damages for time
spent in hunting hogs through fear that defendant would kill them;
Jones V. George, 61 Tex. 361, 48 Am. Bep. 293, arguendo.
Intervention of Independent Act between wrong complained of and
injury, which act was immediate cause of injury, is test of remote-
ness forbidding recovery.
Approved in H. & T. etc. By. v. Sympkins, 54 Tex. 620, 38 Am.
Bep. 634, party falling in fit on track is not guilty of contributory
negligence, though he wrongfully went on track; Seale v. Gulf etc.
By., 65 Tex. 278, 57 Am. Bep. 603, holding railroad not liable for
death of person while putting out fire caused by sparks from its en-
gine; Bryant v. Burge, 3 Tex. Ap. Civ. 445, holding contractor not
liable for injuries due to stumbling over iron stob when someone
else had removed brace covering it; Texas etc. By. v. Doherty, 4 Tex.
Ap. Civ. 233, 15 S. W. 45, holding railroad not liable for injury,
through collision, to passenger riding on platform of street-ear neg-
ligently driven; Gonzales v. Galveston, 84 Tex. 7, 31 Am. St. Bep.
20, 19 S. W. 285, holding city liable for damages if It was negligent
in leaving lumber piled on street, and it was knocked down by
draymen, and person thereby injured; Mexican etc. By. Co. v. Mu-
sette, 7 Tex. Civ. 179, 24 S. W. 525, holding act of fireman in causing
engine to move, while engineer absent from it, not proximate cause
of injury to conductor while tightening brakes; Galveston etc. By.
V. Sweeney, 6 Tex. Civ. 178, 24 S. W. 949, holding railroad not liable
for injuries to employee caused by negligence of fellow-servant,
though appliances defective; Eads v. Marshall (Tex. Civ.), 29 S. W.
171, where proximate cause of injury was failure of city to have
rail on bridge, it is not relieved from liability because plaintiff's
horse was scared by engine; Texas etc. By. v. Beckworth, 11 Tex.
Civ. 155, 32 S. W. 348, holding, where train failed to stop statutory
time at station, company not liable for injuries to child by being
dropped from train by stranger at instigation of mother. See notes,
36 Am. St. Bep. 822; 12 L. B. A. 283.
«71 NOTES ON TEXAS BEPORTS. 51 Tex. 129-146
Question of Bemoteness of Damage is one of law for the court to
decide.
Approved in St. Louis Cattle Co. v. Gholson (Tex. Civ.), 30 S. W.
270, applying principle where division fence torn down; Gulf etc.
Ry. Co. V. Phillips, 32 Tex. Civ. 240, 74 S. W. 794, arguendo.
£1 Tex. 129-134, JOGKUSCH v. T0W8ET.
Money CoUected by Bank in course of business for customer is
held payable on demand or placed to customer's account, the bank
becoming simply contract debtor for amount, less commissions.
Approved in Bowman v. First Nat. Bank, 9 Wash. 618, 43 Am.
St. Bep. 873, 38 Pac. 212, holding bank receiver is not trustee of
funds collected by bank on paper left with it for collection. See
notes, 34 Am. Dec. 313; 39. Am. Bep. 726.
51 Tex. 134-142, BOSEKBBBG ▼. flHAPEB.
Act of April 4, 1874, gave landlords in towns and cities a lien
on goods, wares, and merchandise in rented premises, to secure rents
due.
Approved in Marsalis v. Pitman, 68 Tex. 626, 6 S. W. 404, argu-
endo.
Distinguished in Meyer v. O'Dell, 18 Tex. Civ. 211, 44 8. W. 546,
and Rush v. Hendley, 4 Tex. Ap. Civ. 300, 301, 15 S. W. 202, both
holding improvements put on by tenant not subject to landlord's lien.
Landlord's Iiien on Ctoods on rented premises, being statutory, is
prior to rights of assignee for benefit of creditors, independent of
levy of distress warrant.
Approved in Templeman v. Gresham, 61 Tex. 53, York v. Carlisle,
19 Tex. Civ. 271, 46 S. W. 259, both following rule; Bourcier v. Ed-
mondson, 58 Tex. 679, holding landlord's lien is preserved by suit
to foreclose; Lehman v. Stone, 4 Tex. Ap. Civ. 184, 16 S. W. 784,
purchaser of property on rented premises has constructive notice
of landlord's lien; Berkey etc. Furniture Co. v. Sherman Hotel Co.,
81 Tex. 142, 16 S. W. 810, holding landlord's lien superior to un-
recorded chattel mortgage.
51 Tex. 142-146, HAMILTON ▼. BB00K8.
Promissory Note Given Wife in payment for her separate prop-
erty, and payable to her order, is her separate property; and par-
ties with notice of her rights acquire no valid title to note through
unauthorized act of husband.
Approved in -Morris v. Edwards, 1 Tex. Ap. Civ. 276, following rule;
Kempner v. Comer, 73 Tex. 200, 11 S. W. 195, holding holder of
notes payable to order of married woman which are indorsed by
husband without her knowledge cannot prevail as against wife;
Coleman v. First. Nat. Bank, 17 Tex. Civ. 138, 43 S. W. 940, holding
husband may check out community funds deposited in wife's name;
Linn v. Willis, 1 Posey U. C. 164, arguendo. 'See notes, 62 Am. Dec.
479; 126 Am. St. Rep. 114.
It is not Error to Instruct that an allowance by wife, of accounts
against husband's estate, in which note, which is wife's separate
property, may be included, cannot be regarded as a ratification of
his act in transferring the note.
Approved in Owen v. New Tork etc. Land Co., 11 Tex. Civ. 294,
32 S. W. 1060, holding receipt by wife of proceeds of illegal sale of
«1 Tex. 147-165 NOTES ON TEXAS BEPOBTS. 872
her separate property does not estop her from recovering property
without refunding proceeds. See note, 84 Am. Dec. 614.
Charge That Allowance by Wife of Acconnts against husband's
estate, in which note, which is wife's separate property, may be in-
cluded, cannot be regarded as ratification of his act in transferring
note, is not charge on weight of evidence.
Approved in Anderson v. Martindale, 61 Tex. 190, holding charge
virtually instructing jury to look to whole evidence is not charge on
weight of evidence.
61 Tez. 147-150, SEUGSON ▼. HOBBY.
Petition Should State Cause of Action by distinct averments, and
not leave existence of material facts to be deduced from other facts
alleged.
Approved in Dibrell v. Ireland, 1 Tex. Ap. Civ. 123, petition in
suit on note must show that plaintiff is owner, holder, or bearer;
Texas Trunk B. B. v. Elain, 1 Tex. Ap. Civ. 203, applying principle
in suit for injuries to land from careless or improper use of railroad
roadbed.
Distinguished in Willis v. Mooring, 63 Tex. 341, affidavit on at-
tachment need not show what part of claim due, and what part not
due, if, taken in connection with petition, this is shown.
61 Tex. 160-165» CLEMBMTS ▼. LACY.
Domicile of Husband, Being Domicile of Family, absence of wife
from state with husband's consent, and with intent to return to his
domicile, works no forfeiture of her homestead rights.
Approved in Birdwell v. Burleson, 31 Tex. Civ. 33, 72 6. W. 448,
where husband and children occupying land of deceased wife as
homestead inherited small interest on child's death and temporarily
quit land to educate children, and land partitioned and he rented
land, it was exempt from execution; Luhn v. Stone, 65 Tex. 441,
holding contiguity of land upon which homesteader lives, in con-
nection with intent to make it part of homestead, is sufficient to
clothe undivided tract with homestead rights; McDannell v. Bags-
dale, 71 Tex. 26, 10 Am. St. Bep. 730, 8 S. W. 625, holding home-
stead rights not lost where wife and children remain, though husband
leaves state and desires them to follow; Linares v. Linares (Tex.
Civ.), 51 S. W. 511, wife forced by cruelty to abandon husband Vs
entitled to homestead on his lands after his death; Kircher v. Mur-
ray, 54 Fed. 621, holding wife is citizen of same state as husband,
though she resides elsewhere. See notes, 60 Am. Dec. 609; 96 Am.
Dec. 414.
Distinguished in Linares v. Linares, 93 Tex. 87, 53 S. W. 580, pur-
chase by husband after separation from wife does not make land
a family homestead.
Homestead is not Acquired Against Partiee holding prior equities
and encumbrances until purchase price paid; all liens accruing be-
fore homestead must be raised, or it is subject to forced aale for
their satisfaction.
Approved in Baker v. Collins, 4 Tex. Civ. 524, 23 S. W. 495, fol-
lowing rule; Cahill v. Dickson (Tex. Civ.), 77 S. W. 289, where plain-
tiff borrowed money to pay liens on land and few hours prior to
executing note and deed of trust securing same was secretly married,
homestead not assrertable against debt; Baird v. Trice, 51 Tex. 559,
execution sale takes priority over homestead rights, assigned sub-
873 NOTES ON TEXAS REPOBTS. 51 Tex. 150-165
Bcquent to levy; Gillum v. Colli bt, 53 Tex. 599, holding husband
seeking to avoid new lien which he has substituted for prior encum-
brances, he must show that prior encumbrances did not exist; Reed
V. Howard, 71 Tex. 206, 9 8. W. 110, holding contract to acquire land
to be used as homestead does not require assent of wife; Williams
V. Meyer (Tex. Civ.), 64 S. W. 71, owner cannot defeat lien of trust
deed by designating the property as his homestead, where the lien
had attached previously, and trustee was in possession; Be Bruhl
V. Maas, 54 Tex. 473, 474, 475, permitting foreclosure of purchase
money lien on land claimed as homestead; Joiner v. Perkins, 59 Tex.
303, and Cummins v. Benton, 1 Posey U. C. 185, both arguendo.
Husbaad iiui7» in Absence of Fraud, renounce lands against which
encumbrances exist and wife cannot claim homestead rights thereto.
Approved in Billon v. Kauffman, 58 Tex. 707, Hicks v. Hicks (Tex.
Civ.), 26 S. W. 229, and Investor's Mortgage etc. Co. v. Loyd, 11
Tex. Civ. 453, 33 8. W. 752, all following rule; Johnston v. Arren-
dale, 30 Tex. Civ. 508, 71 8. W. 47, where owner of homestead, prior
lien on which has gone to judgment, arranges with another who dis-
charges debt, buys in land and reconveys it to owner, taking latter's
note secured by mortgage on land, homestead is subordinate to lat-
ter lien; Hicks ▼. Morris, 57 Tex. 662, holding note stating that it
la for purchase money of homestead subrogates holder to rights of
original vendor; Boy v. Clarke, 75 Tex. 32, 12 S. W. 847, holding no
homestead rights are acquired against person paying purchase money;
Oury V. Saunders, 77 Tex. 281, 13 8. W. 1031, holding party paying
purchase money on land homesteaded is subrogated to vendor's rights;
McNeil V. Moore, 7 Tex. Civ. 538, 27 8. W. 164, holding machinery
attached to homestead may be attached' for purchase money; Arch-
enhold v. Evans Co., 11 Tex. Civ. 141, 32 8. W. 796, holding husband
may in good faith convey homestead for payment of purchase money
without consent of wife; Mitchell v. Nix, 1 Posey U. C. 142, holding
until patent issues pre-emptor alone may contract with reference
to homestead. See note, 95 Am. St. Rep. 932.
In Absence of Fraud, homestead rights of wife are subject to sale
by husband to discharge prior encumbrances on land.
Approved in McCarty v. Brackenridge, 1 Tex. Civ. 180, 20 8. W.
1001, arguendo.
Bistinguished in Wheatley v. Griffin, 60 Tex. 212, assignment of
* school land certificate, by husband alone, does not devest wife's
homestead rights; Phelan v. Boyd (Tex. Sup.), 14 8. W. 293, holding
fixtures attached to homestead are not subject to deed of trust.
Qualified in Morris v. Geisecke, 60 Tex. 635, holding husband can-
not, in fraud of wife, alienate homestead under pretense of satis-
fying claim for unpaid purchase money.
A Homestead may be Established on Property held by tenancy in
common, but not to prejudice rights of a eotenant.
Approved in Gilliam v. Null, 58 Tex. 304, following rule; Griffin
T. Harris, 39 Tex. Civ. 590, 88 S. W. 495, holding lunatic having
undivided interest in land on which he lived had homestead interest
therein, irrespective of failure of guardianship proceedings to show
property adjudged homestead; Griffie v. Maxey, 58 Tex. 214, holding
where partners execute trust deed on land and afterward one buys
other's interest therein, his widow can claim homestead rights on
interest owned prior to deed; Clift v. Kaufman, 60 Tex. 65, giving
widow allowance in lieu of homestead; Swearingen y. Bassett, 65
51 Tex. 165-178 NOTES ON TEXAS BEP0BT8. 874
Tex. 273, homestead may be pat on partnership interest in firm's
realty; Lewis v. Sellick, 69 Tex. 382, 7 8. W. 676, arguendo; St.
Louis Type Foundry v. International etc. Co., 74 Tex. 652, 15 Am.
St. Bep. 871, 12 S. W. 843, holding under Bevised Statutes, article
2337, property therein mentioned is exempt though it be partnen^ip
property; Pace v. Sparks, 1 Posey U. 0. 402, head of family residing
on fifty acre tract may claim it and part of tract, mile distant, held
jointly as a homestead. See notes, 63 Am. Dec. 125; 1 Am. St. Bep.
594.
Limited in Brown ▼. McLennan, 60 Tex. 44, holding homestead
interest in undivided tract extends to undivided interest in entire
tract.
Homestead Establlslied on Land held in common may be sold by
order of equity court, where it is incapable of partition, and pro-
ceeds divided.
Approved in Hertz v. Buchmann, 177 111. 557, 53 N. E. 68, following
rule; Lewis v. Sellick, 69 Tex. 383, 7 S. W. 677, holding cotenant en-
titled to half of improvements on land claimed as homestead by
other; Kirkwood v. Domnau, 80 Tex. 648, 26 Am. St. Bep. 772, 16
S. W. 429, making partition sale of homestead after divorce.
Wliere Husband Died Seised of Undivided Half Interest in land
held in cotenancy, wife is entitled to homestead rights therein, sub-
ject to partition with other cotenants under general partition rules.
Approved in Pressley v. Bobinson, 57 Tex. 459, following rule;
Crocker v. Crocker, 19 Tex. Civ. 297, 46 S. W. 871, second wife's
homestead must come out of husband's share of community acquired
during first marriage. See notes, 62 Am. Dec. 485, 487; 63 Am. Dee.
124.
Limited in Jenkins v. Volz, 54 Tex. 639, 640, refusing foreclosure
sale where homestead exists on land held in joint tenancy.
51 Tez. 165-169, AU.EK ▼. PANKELL.
Payee In Draft may Sue Thereon in His Own Name, whether
equitable owner or not.
Approved in Sanders v. Atkinson, 1 Tex. Ap. Civ. 774, following
rule; Luter v. Boberts (Tex. Civ.), 39 S. W; 1002, assignee of note
as collateral may sue in own name without being guilty of con-
version; Matlock V. Glover, 63 Tex. 234, 235, permitting vendor, who
was holder of purchase money notes, to sue thereon, though other
party was equitable owner.
Plea by Defendant That Plaintiff In Suit on Note is Insane is in
nature of plea in abatement and should be verified by affidavit.
Cited in note in 65 Am. Dec. 65.
51 Tez. 169-178, TBXTEHEABT ▼. BABCOCE.
Act of February 5, 1850, was intended to quiet title to lands in
limits of Austin, and other colonies therein named, and includes title
annulled by decree of ayuntamfento.
Approved in Day Land etc. Co. v. State, 68 Tex. 549, 4 S. W. 876,
construing section 3, article 14, of constitution; Winsor v. O'Con-
nor, 69 Tex. 576, 8 S. W. 521; Texas-Mexican By. v. Locke, 74 Tex.
403, 12 S. W. 89, both construing words "land titled" as used in sec-
tion 2, article 14, of constitution; Bryan v. Crump, 55 Tex. 10, ar>
guendo.
Miscellaneous. — ^Donovan v. Ladner, 3 Tex. Civ. 206, 22 S. W. 62,
upon question of estoppel by pleading.
«75 NOTES ON TEXAS BEPOBTS. 51 Tex. 178-204
51 Tex. 178-188, WE8TBOPE ▼. CHAMBERS.
Covenant of Title and Right to Convey, contained in deed, is
broken upon delivery of deed, if vendor has no title and limitaiion
for breach of such covenant runs from delivery.
Approved in Jones v. Paul, 59 Tex. 46, arguendo. See note, 17
L. B. A. (n. s.) 1184, 1192.
Grantee in Deed With General Warranty need not await actual
ouster by judgment of court before bringing suit upon covenant, but
upon delivery of possession and bringing suit he must prove superi-
ority of outstanding title.
Approved in Trevino v. Canter, 61 Tex. 91, holding vendor, under
contract that if title fail vendee shall not recover more than two
thousand dollars, cannot, by confessing defect in title, compel pur-
chaser to accept money; McGregor v. Tabor (Tex. Civ.), 26 S. W.
443, holding judgment of eviction is admissible against warrantor
in action by his vendee; Zimpelman v. Hipwell, 54 Fed. 854, argu-
endo. See note, 125 Am. St. Bep. 450.
Act of FebmaryN 5, 1850, Protects ftom Belocatlon all land titled
or surveyed prior to its passage, though it had been declared for-
feited by decree of ayuntamiento.
Approved in Winsor v. O'Connor, 69 Tex. 577, 8 S. W. 521, constru-
ing words "lands titled" in section 2, article 14, of constitution;
Branch v. Baker, 70 Tex. 192, 193, 7 S. W. 808, 809, and Texas-Mex-
ican By. V. Locke, 74 Tex. 403, 12 S. W. 89, both holding subsequent
locator cannot assert title to land extended under Mexican govern-
ment, though it was procured by fraud; Bryan v. Crump, 55 Tex.
10, arguendo.
51 Tex. 189-204, GALVESTON ETC. R. R. ▼. L£ GIEBSE.
Right to Damages for Wrongful Death, being statutory, is gov-
erned by provisions of statutes, giving such right.
Approved in Casey v. St. Louis Transit Co., 116 Mo. App. 258, 91
S. W. 427, one suing to recover damages for wrongful death under
Revised Statutes, section 2884, must demand and recover precise
amount of penal sum therein provided; Baxter v. Campbell, 17 S. D.
481, 97 N. W. 388, in action against surgeon for malpractice, where
compensatory damages alone claimed and there was no evidence of
malice, instruction permitting award of punitive damages is erroneous.
See note, 70 Am. St. Bep. 682.
Under Act of February 2, 1860, amount recovered in suit for dam-
ages for wrongful death must be prosecuted for joint benefit of
all parties interested, and amount recovered must be apportioned
as jury or court may direct.
Approved in Daubert v. Western Meat Co., 139 Cal. 481, 96 Am.
St. Bep. 154, 73 Pac. 245, under Code of Civil Procedure, section 377,
judgment in action by wife for wrongful death of husband bars
action by child then unborn where existence unknown to defendant
at time of judgment; Galveston etc. By. v. Kutac, 72 Tex. 648, 11
S. W. 128, holding person having right of action under Bevised
Statutes, article 2899, is not precluded by judgment in another suit,
to which he was not a party, brought by person having same right
of action; Texas etc. By. v. Hudman, 8 Tex. Civ. 314, 28 S. W. 390,
holding apportionment to children collectively is not error. See
notes, 70 Am. St. Bep. 685; 34 L. K. A. 796; 5 L. B. A. 174.
51 Tex. 189-204 NOTES ON TEXAS BEPOBTS. 876
If All Parties in Interest, in Suit for Damages for death of partj,
are not before the court as plaintiffs, snit should proceed in name
of one for benefit of all interested.
Approved in East Line etc. By. t. Culberson, 68 Tex. 666, 667, 5
S. W. 821, 822, holding where party having right of action under
Revised Statutes, articles 2903, 2904, 2909, is not party, court should
suspend trial, and require person to be made a party. See note, 2
L. B. A. 520.
If Nonjoinder of Partiea be Apparent of Record, it can be reached
by demurrer; if not, then plea in abatement is necessary.
Approved in Texas etc. By. ▼. Pollard, 2 Tex. Ap. Civ. 426, follow-
ing rulej Valdez v. Cohen, 23 Tex. Civ. 476, 56 S. W. 375, where
defendant sued in justice court of county other than that of resi-
dence and fails to plead privilege, he cannot have sale in satisfaction
of default judgment in such suit set aside on ground of court's lack
of jurisdiction J Perez v. Everett, 73 Tex. 433, 11 S. W. 389, holding
objection of nonjoinder cannot be raised after judgment; Missouri
etc. By. v. Henry, 75 Tex. 223, 12 S. W. 829, permitting mother to
sue for benefit of herself and husband for death of son; McFadden
V. Schill, 84 Tex. 79, 19 S. W. 369, applying rule in suit for injuries
to property, caused by negligent construction of switch; Denison etc.
By. V. Smith, 19 Tex. Civ. 115, 47 S. W. 279, applying principle in
suit for damages to land by building railroad.
Allowing Judgment In Payor of Widow Alone, for death of hus-
band, is error, where record shows he left minor children not repre-
sented in suit.
Approved in Dallas etc. B. B. ▼. Spiker, 59 Tex. 437, applying
principle where it was shown that deceased left mother as well as
wife; Southern Pac. Co. v. Tomlinson, 163 U. S. 374, 375, 16 Sup.
Ct. Bep. 1173, 41 L. 194, holding under Arizona statutes widow suing
for death of husband for benefit of herself and children cannot
remit verdict.
Negligence of Bailroad Company to Stop Train for five minutes
does not justify injured party in attempting to get aboard cars
while in motion, if such act was negligence and contributed to in-
jury.
Approved in H. ft T. etc. By. v. Leslie, 57 Tex, 86, 87, 88, holding
passenger jumping from train while in motion cannot recover for
injuries thereby incurred though train did not stop statutory time;
H. ft T. etc. By. v. Bichards, 59 Tex. 375, holding section-hand walk-
ing on track upon which he knew train was due is guilty of con-
tributory negligence; H. ft T. etc. By. v. Lovett, 1 Tex. Ap. Civ. 55,
holding failure of railroad to ring bell does not excuse negligence
in crossing track; G. H. etc. By. v. Smith, 2 Tex. Ap. Civ. 132, hold-
ing consignor loading corn while wet cannot recover damages; Ft.
Worth etc. By. v. Taliaferro, 4 Tex. Ap. Civ. 546, 19 S. W. 432, hold-
ing person injured by runaway due to horses becoming scared while
crossing track in front of engine is guilty of contributory negli-
gence; Warren v. Southern Kansas By., 37 Kan. 413, 15 Pae. 603,
holding person attempting to board stock-car of moving train is per
se negligent; Houston etc. B. B. v. Nixon, 52 Tex. 27. See valuable
note, 44 Am. Bep. 508, 509.
It is Error to Instruct that jury might infer that if train did not
stop statutory time, company was liable, without qualifying instruc-
tion as to contributory negligence of injured party.
877 NOTES ON TEXAS BEPOETS. 51 Tex. 189-204
Approved in Snow v. Price, 1 Tex. Ap. Civ. 784, permitting evi-
dence in rebuttal as to liability of thoroughbred eattle to injury,
though utmost care used.
Wliere Exemplary Damages are (Uyen in the nature of a penalty,
instructiong are not entitled to same liberality of construction as in
other suits.
Approved in Ft. Worth ete. By. v. Shetter (Tex. Cir.), 58 8. W.
18]f questioning whether statute, imposing penalty for failure to
keep brakeman on rear car of certain trains, applies where the cars
are operated by a receiver, and where the train was loaded with
merchandise alone.
ErroneoiiB Instruction on Material Pointy calculated to mislead
jury, is not corrected by fact that it may, taken in connection with
instructiontf asked by injured party, present law of case.
Approved in Edwards v. Dickson, 60 Tex. 615, 2 S. W. 719, apply-
ing rule in suit on sheriff's bond for illegal execution; Missouri ete.
By. V. Woods (Tex. Civ.), 25 S. W. 742, applying principle in suit for
injuries by brakeman against railroad; Galveston etc. By. v. Oorm-
ley (Tex. Civ.), 27 S. W. 1053, holding erroneous charge that appli-
ances furnished to servant must be modern and safe.
ITnder Article 16, Section 26, Constitution of 1876, and PaschaPs
Digest, articles 15-18, exemplary as well as compensatory damages
are allowed.
Approved in Houston etc. By. v. Baker, 57 Tex. 423, arguendo.
Where Actual and Exemplary Damages are Soaght, they should
be claimed by allegations in nature of distinct counts, on different
causes of action.
Approved in Texas etc. By. v. Pollard, 2 Tex. Ap. Civ. 427, follow-
ing rule; Glasscock v. Shell, 57 Tex. 222, applying principle in suit
for breach of promise of marriage; Campbell v. H. & T. B. B., 2
Posey U. C. 476, holding exemplary damages are nol^ recoverable un-
less sufficient facts are pleaded. See note, 34 L. B. A. 796.
Distinguished in Alabama etc. B. B. v. Arnold, 84 Ala. 169, 5 Am.
St. Bep. 359, 4 So. 364, holding exemplary damages need not be
specially claimed.
Where Actoal and Exemplary Damages are sought, court should
instruct as to measure of damages, as applied to evidence, and jury
should find actual and exemplary damages separately.
Approved in Texas Trunk B. B. v. Elam, 1 Tex. Ap. Civ. 203, fol-
lowing rule; Brooke v. Clark, 57 Tex. 109, applying principle in suit
against physician, for negligently tying penis instead of umbilical
cord; T. & P. B. B. v. Williams, 1 Tex. Ap. Civ. 98, holding it is
duty of court to instruct as to legal meaning of market value; Gal-
veston etc. By. V. Worthy (Tex. Civ.), 27 S. W. 428, holding charge
that jury may give such damages as they think proportionate to in-
jury sufficient in absence of request for charge giving full and
correct rule; Texas etc. By. Co. v. Avery (Tex. Civ.), 33 S. W. 705,
holding, where cattle injured by improper transportation, measure
of damages is difference between market value and what value would
be best for injuries; Texas etc. By. v. Berchfield, 12 Tex. Civ. 148,
33 S. W. 1024, applying principle in suit for damages for injuries to
cattle; Texas etc. By. Co. v. Young (Tex. Civ.), 27 S. W. 146, and
Galveston etc. By. v. Worthy, 87 Tex. 465, 466, 29 S. W. 376, 377,
both arguendo.
61 Tex. 205-213 NOTES ON TEXAS REPORTS. 878
DeclaraUons of Companion of Injured Party that no one was to
blame but themselves are inadmissible where made some time after
accident.
See note, 20 L. B. A. (n. s.) 145.
Boles by Which Damages should be measured are questions of law;
the amount of damages is question of fact determinable bj jury by
application of law to evidence.
Approved in Glasscock v. Shell, 57 Tex. 224, applying priniEple
in suit for breach of promise of marriage.
Under Paschal's Digest, Article 1464, the court should decide on
law and instruct jury in regard thereto, distinctly separating ques-
tions of law from questions of fact.
Approved in Houston etc. R. R. v. Nixon, 52 Tex. 25, applying
principle in suit for injuries for death of child playing on track;
Turner v. Strange, 56 Tex. 144, holding, in action for breach of con-
tract to supply cistern, it is error to refuse charge excluding from
consideration in estimation of damages loss to crops by loss of time
in hauling water.
51 Tex. 20&-213, MAINWABBINa T. TEMPLEMAK.
Judgment Lien Attaches to Lands Held by Tenants of judgment
debtor, as against vendee under unrecorded deed.
Approved in Stevenson v. Texas Ry., 105 U. S. 708, 26 L. 1217,
holding purchaser at execution sale acquires lien superior to unre-
corded mortgage.
Pos8es8i<m in Person or by Tenant is equivalent to fegistration of
deed.
Approved in League v. Snyder, 5 Tex. Civ. 15, 23 S. W. 826, Dun-
can V. Matula (Tex. Civ.), 26 S. W. 638, Smith v. James, 22 Tex.
Civ. 156, 54 S. W. 43, all following rule; Collum v. Sanger Bros., 98
Tex. 164, 82 8. W. 460, where one of five heirs of tract purchased
interest of two co tenants and held possession by tenants, possession
was notice of grantee's rights to one claiming under executive sale
title of grantor in unrecorded deed; Rhine v. Hodge, 1 Tex. Civ. 371,
21 S. W. 141, holding heirs of ancestor in possession are unaffected by
foreclosure to which he was not party; Le Doux v. Johnson (Tex.
Civ.), 23 S. W. 906, holding possession of officer while holding build-
ing under attachment is not notice that he holds under unrecorded
lease given him after levy; Barnes v. Squyres (Tex. Civ.), 52 S. W.
614, holding actual notice to judgment creditor, at time of bringing
lien, of unrecorded deed is fatal to his rights; Ramirez v. Smith. 94
Tex. 190, 59 8. W. 260, actual possession of land by claimant of it is
notice of possessor's title. See notes, 104 Am. St. Rep. 349; 13 L. R.
A. (n. s.) 54.
Distinguished in Sanger Bros. v. Collum (Tex. Civ.), 78 S. W. 402,
where one of five heirs purchased interest of two cotenants by unre-
corded deed, and held possession by tenants, possession not good
as against purchaser at execution sale against grantor.
Purchaser is Bound to Take Notice of rights of occupant or of
landlord of occupant.
Approved in Glendenning v. Bell, 70 Tex. 634, 8 S. W. 325, fol*
lowing rule; Wimberly v. Bailey, 58 Tex. 226, holding possession
by widow constitutes notice to creditors of heir of his transfer of
interest in estate; Hawley v. Geer (Tex. Sup.), 17 S. W. 916, hold-
ing purchaser of lands from children of persons who held in trust
879 NOTES ON TEXAS REPOETS. 51 Tex. 213-243
is charged with notice of prior deeds from their guardian; Bamirez
▼. Smith (Tex. Civ.), 56 S. W. 259, arguendo. See note, 13 L. B. A.
(n. i.) 57, 74, 76, 100, 135.
Limited in Eylar v. Eylar, 60 Tex. 319, holding purchaser from
Tendee whose vendor remains in possession need nqt inquire beyond
record title.
Where Statute Makes Actual Notice of claim of title alone equiva-
lent to registration, sufficiency of possession to give actual notice is
question of fact.
See note, 13 L. B. A. (n. s.) 79.
61 Tex. 213-222, ATOHESON v. SCOTT.
An Administrator Holding Note payable to himself can accept,
without authority of equity court, the obligation of another in lieu
thereof, where such other is ignorant of trust nature of debt.
See note, 73 Am. Dec. 223.
61 Tex. 22S-235, ATOHESON t. HUTCHINSON.
Where Assignment of Errors is Too Oeneral, the court will not gen-
erally pass upon them (examined herein because it is evident that
valuable property was sold at exeeutioh sale at grossly inadequate
price, and it was charged that execution illegally issued).
Beaffirmed in Byrnes v. Morris, 53 Tex. 220.
Under Paschal's Digest, Article 3775, judgment debtor is entitled
to reasonable opportunity to point out property subject to levy.
Beaffirmed in Fatheree v. Williams, 13 Tex. Civ. 433, 35 S. W. 326.
Inadeqoacy of Price Alone is no ground for setting aside execu-
tion sale, where actions of execution defendant produced the inade>
quacy, unless there is fraud or irregularity in issuance of execution
and making levy.
Beaffirmed in Bordages v. Higgins, 1 Tex. Civ. 51, 19 S. W. 449.
51 Tex. 236-242, DANISH ▼. DI8BB0W.
Under Will Bequeathing All Estate to Widow for maintenance of
herself and children,* and permitting her to manage estate as she
thinks best, held that widow took legal title to realty with power
of sale.
Approved in Faulk v. Dashiell, 62 Tex. 648, 650, 50 Am. Bep. 544,
545, holding executor, under will giving power to sell property as
he may deem necessary for maintenance of children, may execute
deed of trust empowering trustee to sell on failure to pay debt; May
V. San Antonio etc. Town Site Co., 83 Tex. 507, 18 S. W. 961, apply-
ing principle in construction of codicil.
61 Tex. 242-243, DEAN v. SWEENEY.
Under Acts of Fifteenth Legislature, 78 and 170, party who de-
manded jury and tendered fee, or made oath in lieu thereof, at any
time before 9 A. M. of day set for trial of jury cases, is entitled to
jury trial.
Approved in Dunlap v. Brooks, 3 Tex. Ap. Civ. 427, following rule;
Brown v. State, 89 Ga. 340, 15 S. E. 462, holding person indicted
for misdemeanor may demand jury on new trial, though jury waived
at first trial.
Distinguished in Cole v. Terrell, 71 Tex. 553, 9 S. W. 669, hold-
ing, where party sets jury case for day when, under rules, no jury
will attend, absence of jury is not ground for continuance.
61 Tex. 244-257 NOTES ON TEXAS EEPOBTS. S80
Bight of Trial by Jniy is not affected by failure to claim or waiver
of jury at a preceding term.
Approved in Brown v. Cheno worth, 51 Tex. 475, following rule;
Burnham ▼. North Chicago etc. By., 88 Fed. 629, holding stipulation
to waive jury trial is strictly construed.
51 Tax. 244-250, TEXAS ETC. LIFE 1KB. OO. ▼. DAVrDGE.
Petition to Becover on Insnranco PoUcy is insufficient on de-
murrer unless it allege a consideration supporting policy sued on.
Approved in Lewis v. Southwestern Tel. etc. Go. (Tex. Civ.), 58
S. W. 304, petition in suit against telephone company for failure to
notify plaintiff that party wished to talk to him must allege an
obligation or duty on part of telephone company to do so. See note,
62 Am. Dec. 490.
Petition in Suit Against Oorporati<m should distinctly allege cor-
porate capacity of defendant.
Approved in Missouri etc. By. v. Douglas, 2 Tex. Ap. Civ. 33, fol-
lowing rule; Greenwood v. Pierce, 58 Tex. 133, holding designation
of railroad raises no presumption of corporate capacity; Galveston
etc. By. V. Smith, 81 Tex. 483, 17 S. W. 134, applying principle in
suit against carrier for loss of baggage; Underwood v. First Nat.
Bank (Tex. Civ.), 62 S. W. 943, affidavit for garnishment against a
corporation must allege that such garnishee is a corporation.
Distinguished in T. & P. B. B. v. Miller, 1 Tex. Ap. Civ. 104, cor-
porate capacity need not be pleaded in justice court suit..
Evidence Tending to Show That Insorance Agent exceeded author-
ity in accepting payment of premium otherwise than in money is
admissible.
Limited in Eerlin v. National Bank Assn., 8 Ind. Ap. 636, 35 N.
E. 42, holding insurance agent may waive provision in policy pro-
viding for payment of premiums quarterly and accept payment of
entire premium in advance.
Evidence That Dronkenneas of Insured was known to agent at
time of making policy is inadmissible unless pleaded.
Approved in Murray v. Gulf etc. By., 73 Tex. 6, 11 S. W. 126,
holding contributory negligence must be pleaded; Howard v. Metcalf
(Tex. Civ.), 26 S. W. 450, holding estoppel must be pleaded to be
available as defense. See note, 16 L. B. A. 35.
Beceiptfor Premium recited in policy may be contradicted by
parol.
See note, 16 L. B. A. (n. s.) 1186.
51 Tez. 251-257, LEWIS v. DAVIDSON.
Jurisdiction of Suit Against Two Defendants, only one of whom
is resident of county, having once been acquired, is not devested by
dismissal as to resident defendant.
Approved in Milan v. Hill, 29 Tex. Civ. 577, 19 S. W. 450, where
court had jurisdiction over equitable action, plaintiff's acceptance
of deed in compromise not bar to his appeal from judgment failing
to uphold jurisdiction; Bohannon v. Pearson, 2 Tex. Ap. Civ. 547,
holding iu suit against husband and divorced wife change of venue
not affected by dismissal as to one party; Bonner v. Hearne, 75 Tex.
252, 12 S. W. 40, arguendo.
Statute of Limitations so far pertains to remedy as not to confer
such vested right as would prohibit by organic law kn extension of
time in which to maintain suit.
SSI N0TE;9 on TEXAS REPORTS. 61 Tex. 257-270
Approved in State v. City of Aberdeen, 34 Wash. 65, 74 Pac. 1023,
amendment of 1903 to Code of Civil Procedure, section 35, providing
that previously existing statute of limitations should not be inter-
posed against state though statute had run prior to adoption of
act, is not invalid as applied to suit by state to recover its proportion*
of liquor licenses received by towns; Landa v. Obert, 78 Tex. 46, 14
S. W. 300, holding, though limitation had run before adoption of
constitution of 1869, suspending statute, it was renewed by consti-
tution; Campbell v. Holt, 115 U. S. 630, 6 Sup. Gt. Rep. 214, 29 L.
487, arguendo. See note, 45 L. R. A. 613.
51 T«K. 257-263, AGBIOULTUBAL ETC. ASSN. v. BREWSTER.
A Trust in Itands may be Shown by Parol only upon clear and satis,
factory testimony.
Approved in Goodrich v. Hicks, 19 Tex. Civ. 531, 48 S. W. 798, 799,
following rule; Rice v. Rigley, 7 Idaho, 128, 61 Pac. 294, applying rule
in suit for specific performance of ''grubstake" contract; Herring v.
Mason, 17 Tex. Civ. 573, 43 S. W. 802, fraud in sale of land is prov-
able by parol; Watkins v. Atwell (Tex. Civ.), 45 S. W. 406, holding
trust deed inadmissible to show resulting trust where defendant in
trespass to try title claimed under such deed given by maker of note,
which plaintiff gave as part payment for his deed. See note, 51 Am.
Dec. 759.
Distinguished in Morrow v. Matthew, 10 Idaho, 432, 79 Pac. 200,
holding rule does not apply to suit to establish trust in mining
claims by party to "grubstake" contract.
Limited in Howard v. Zimpelman (Tex. Sup.), 14 S. W. 61, hold-
ing erroneous, instruction that one seeking to show deed absolute
in form was given for some other purpose must establish such fact
clearly and with certainty.
Burden of Proof to Show Parol Tmst is upon party attempting
to set it up.
Approved in Toole v. Dibrell (Tex. Civ.), 29 S. W. 388, holding
testimony that grantor told witness before land bought that he had
no money is inadmissible to show resulting trust, where no part of
price paid when grantor acquired title.
51 Tez. 263-270, BANNET T. MILLEB.
Where Land Sold Under Deed of Trust given in name of principal
by agent for borrowed money, the widow of agent is estopped from
denying purchaser's title in so far as her claim is of mere commun-
ity interest.
Approved in Alstin v. Cundiff, 52 Tex. 466, holding possession of
wife is not notice of claim to bona fide purchaser; Hickey v. Behrens,
75 Tex. 496, 12 S. W. 681, arguendo.
Distinguished in Seay v. Fennell, 15 Tex. Civ. 264, 39 S. W. 182,
holding, where husband takes deed to homestead^ reserving fraudu-
lent vendor's lien, wife is not estopped to assert homestead rights.
The Wife's Interest in Community Property is held in privity with
the husband.
Approved in Pepper v. Smith, 54 Tex. 119, holding wife joining
husband in trust deed with one having legal title cannot assert home-
stead rights as against purchaser at trust sale.
Power of Husband to Bind Community Estate by estoppel is not
less than that of partner to estop his firm.
2 Tex. Notee— 56
I
61 Tex. 270-276 NOTES ON TEXAS REPORTS. 882
Approved in Mitchell v. Nix, 1 Posey U. 0. 142, holding, prior to
issuance of patent, pre -emptor may agree to appropriation of home-
stead between himself and another.
Where Party HddB Title Under Power of Attorney and exeentes
trust deed in name of principal to secure loan, he cannot assert
homestead rights against purchaser under trust deed.
Approved in Watkins v. Sproull, 8 Tex. Civ. 432, 28 S. W. 358,
upon question of notice of illegality of warranty deed; Ramirez v.
Smith, 94 Tex. 191, 59 S. W. 261, arguendo while holding case at
bar instance where mortgagee was put on notice as to occupant's
title.
61 Tez. 270-276, HOUSTON ETC. B. S. ▼. MnJtini.
Master is not Uable for Injuries sustained by servant through
negligence of fellow-servant.
Approved in H. & T. etc. B. B. v. Myers, 55 Tex. 115, holding
brakeman engaged in coupling ears cannot recover for negligence
of engineer; I. & G. N. B. B. ▼. Both, 2 Posey U. C. 246, holding
master not liable for injuries caused by fellow-servant unlese he was
negligent in employing su6h fellow-servant. See note, 36 Am. Dec.
282.
Mere Fact That Employee Is U^der Age of Twenty-one should not
shield him from usual responsibility incident to honest employment
voluntarily assumed. This rule should not be enforced against child
of tender years.
Approved in Evans v. Mills, 119 Ga. 453, 46 S. E. 676, risk arising
from negligence of fellow-servant not presumed to have been assumed
by child of twelve years; Brazil etc. Coal Co. v. Gain, 98 Ind. 287,
applying principle in suit for injuries received by nineteen-year old
boy working in coal mine; YouU v. Sioux City etc. By., 66 Iowa, 349,
23 N. W. 737, applying principle when seventeen year old boy injured
while making flying switch; Hamilton v. G. H. etc. By., 54 Tex. 562,
holding employment of fifteen year old boy as brakeman without
mother's consent gives her right of action for damages for injuries
caused by his fellow-servant; T. & P. By. v. Carlton, 60 Tex. 401,
arguendo. See note, 44 L. B. A. 61.
Where Parent of Minor Obtained Judgment for Injuries sustained
by minor son, in suit by son for damages, jury must not include
time between suit by father and minor's majority in computing
damages for lessened capacity to earn living.
Approved in Galveston etc. By. Co. v. Jackson, 31 Tex. Civ. 342,
71 S. W. 991, following rule; Wise v. St. Louis Transit Co., 198 Mo.
562, 95 S. W. 903, upholding instruction for impairment of earning ca-
pacity after attainment of majority, where boy permanently injured;
Texas etc. By. v. Morin, 66 Tex. 227, 18 S. W. 503, holding injuries
causing diminution in earning capacity during period between injury
and majority do not give minor right of action; Bosencranz v. Lindell
By., 108 Mo. 17, 32 Am. St. Bep. 594, 18 S. W. 892, holding jury may
consider prospective loss of earnings after attainment of majority
though minor never earned anything.
Distinguished in Baker v. Flint etc. B. B., 91 Mich. 302, 30 Am.
8t. Bep. 474, 51 N. W. 898, 16 L. B. A. 154, arguendo.
In Absence of Law Declaring an Act Negligence^ it is a question
of fact for the jury.
883 NOTES ON TEXAS REPORTS. 51 Tex. 276-295
Approved in Dargin t. Pullman Palace Car Co., 2 Tex. Ap. Civ.
610, holding charge should not specify particular acts or omissions
as constituting negligence; International etc. Ry. v. Robertson (Tex.
Civ.), 27 S. W. 565, using railroad crossing known to be defective
is not per se negligence.
Miscellaneous. — ^Houston etc. R. R. v. Willis, 53 Tex. 327, holding
personal malice shown by declarations of fellow-servant; St. Louis
etc. Ry. V. Finley, 79 Tex. 88, see 15 S. W. 267, miscited to point
that contract of railroad with passenger does not end till latter has
alighted from cars.
61 Tesx. 276-289, JOBDAK ▼. IMTHUBN.
That Bond Executed by SmTlving Husband does not equal ap-
praised value of the community property left at wife's death does
not affect his right of control.
Approved in Pratt v. (Jodwin, 61 Tex. 335, and Townsend v. Wil-
lis, 78 Fed. 854, both following rule; Green v. Grissom, 53 Tex. 435,
436, holding failure of widow to swear to inventory of community,
before selling property, does not, in absence of fraud, affect validity
of her deed on collateral attack; Busby v. Davis, 57 Tex. 325, hold-
ing application by widow for appointment of appraisers and alleged
appraisement of property of decedent is insufficient to qualify as
survivor of community; Withrow v. Adams, 4 Tex. Civ. 445, 23 S.
W. 439, holding failure to list part of community does not deprive
widow of rights as survivor under statute.
The Bight to Dispose of, includes the right to encumber, commun-
ity property.*
Approved in Astugueville v. Loustaunau, 61 Tex. 239, holding
unmarried head of family may mortgage his homestead; Ostrom v.
Arnold, 24 Tex. Civ. 194, 58 S. W. 632, surviving wife may charge
community property with a lien for her individual debt; Stevenson
V. Roberts, 25 Tex. Civ. 583, 64 S. W. 234, arguendo, while holding
that, under authority to sell, independent executrix may mortgage
the property.
It is not Sufflcient That Judgment does not clearly appear correct;
it must clearly appear wrong, to authorize reversal.
Approved in Lichtenstein v. Loewnstein, 2 Posey U. C. 384, apply-
ing principle in suit on notes; Flanagan v. Pearson, 61 Tex. 307,
upholding sheriff's sale, attacked for inadequacy of price; McDonald
V. Texas etc. R. R., 1 Posey U. C. 198, and McCartney v. Martin,
1 Posey U. C. 151, refusing to reverse where there was conflict in
testimony.
Burden is on Party attacking husband's trust deed of community
property to allege and prove that at time of execution of deed
property was homestead.
See note, 56 L. R. A. 74.
Miscellaneous. — Pierce v. Moore, 1 Tex. Ap. Civ. 514, where jury is
waived, judge should give reasons for giving judgment.
51 Tez. 289-296, MOORE v. BICE.
Baits, Whether Equitable or not> do not abate on death of plain-
tiff, but may be revived by executors or administrators, and under
some circumstances by heirs.
Approved in Howard v. McKenzie, 54 Tex. 183, Smith v. Harring-
ton, 3 Wyo. 508, 27 Pac. 804, reaffirming rule. See note, 70 Am.
Dec. 325.
51 Tex. 296-321 NOTES ON TEXAS BEPOETS. 8S4
Under Act of MarcA 16, 1876, there most be affidavit of aerriee of
citation by publication, which must show length of time of publi-
cation.
Approved in Chaffee v. Bryan, 1 Tex. Ap. Civ. 424, and Bums v.
Batey, 1 Tex. Ap. Civ. 185, absence of affidavit fatal to service.
Miscellaneous. — Traylor v. Lide (Tex. Sup.), 7 S. W. 62, cited to
the point that when the law is strictly complied with, judgment
upon service by publication will be sustained upon writ of error
appeal, or when collaterally attacked; Johnson v. Amarillo Imp. Co.,
88 Tex. 508, 31 S. W. 504, cited to point that motion for rehearing
and certiorari to correct record should not be granted where, if cor-
rected, appellate court would not have changed result of trial court's
decision on the facts; Gulf etc. By. v. Cannon, 88 Tex. 314, 31 S. W.
499, cited to point that certiorari, to correct record and motion for
rehearing, should be granted where it is shown that in fact the
statement of facts was approved by the trial judge; Moore v. Moore,
73 Tex. 384,^1 S. W. 396, same case on fourth appeal.
61 Tez. 296-302, ENGLISH T. MILTEKBEBGEB.
Statute of April 2, 1874, regulates burden of proof in actions on
accounts, but does not otherwise change rules of evidence or plead-
ing.
Approved in Bives v. Habermacher, 1 Tex. Ap. Civ. 410, reaffirm-
ing rule.
51 Tez. 302-321, ALLEN T. GALVESTON.
An'Asseesment Under Oharter of City of Galveston based on ex-
pense of shelling street opposite an entire block, and then, as per
ordinance, assessing each lot in that block with one-third of its
equal proportion of entire expense, without regard to actual esti-
mated expense of portion in front of the lot, was unauthorized.
Approved in Kerr v. Corsicana (Tex. Civ.), 35 S. W. 697, holding
under similar charter an assessment in which several lots were taken
en masse to be void. See note, 21 L. B. A. 564.
Distinguished in Galveston v. Heard, 54 Tex. 445, as not being in
point because under different facts.
Imposition of a Tax by a Oity for local improvements, not given
by its charter, is invalid.
Approved in Carlile v. Eldridge, 1 Tex. Ap. Civ. 552, reaffirming
rule; Adams v. Fisher, 63 Tex. 654, reaffirming rule under similar
facts; Paul v. City of Seattle, 40 Wash. 300, 82 Pae. 604, under
Seattle charter providing that no obligation against city can be
created except by ordinance, contract entered into by city without
ordinance is unenforceable, and can be ratified only by ordinance;
Charleston v. Beed, 27 W. Va. 687, 55 Am. Bep. 340, tax without
authority in charter void; Lufkin v. Galveston, 58 Tex. 549, deciding
case on principles decided in leading case. See note, 1 L. B. A. 169.
"Assessments for Local Improvements" are not within meaning of
term 'taxation," as usually employed in constitution and statutes.
Approved in Taylor v. Boyd, 63 Tex. 542, Harris Co. v. Boyd, 70
Tex. 241, 7 S. W. 714, Higgins v. Bordages, 88 Tex. 461, 462, 53 Am.
St. Bep. 774, 775, 31 S. W. 53. 54, Denver v. Knowles, 17 Colo. 209,
30 Pac. 1043, 17 L. B. A. 135, Hayden v. Atlanta, 70 Ga. 823, Winona
etc. B. B. V. Watertown, 1 S. D. 59, 44 N. W. 1076, and Galveston
V. Guaranty Trust Co., 107 Fed. 327, all reaffirming rule; Bordages v.
885 NOTES ON TEXAS BEPOBTS. 51 Tex. 322-350
Higgins, 1 Tex. Ciy. 49, 19 S. W. 448, improvement tax, if correctly
laid, creates lien upon even the homestead. See notes, 35 L. B. A.
34, 58; 8 L. B. A. 369.
Conatitatioiial Grants to liake laocal Assessments are strictly con-
strued and must be strictly followed.
Approved in Wood v. Galveston, 76 Tex. 133, 13 8. W. 229, EI
Paso V. Mundy, 85 Tex. 319, 20 S. W. 141, Bordages v. Higgins, 1
Tex. Civ. 52, 20 S. W. 185, and Keese v. Denver, 10 Colo. 116, 15
Pac. 827, all reaffirming rule; Dallas v. Ellison, 10 Tex. Civ. 37, 30
S. W. 1132, Ardrey v. Dallas, 13 Tex. Civ. 451, 35 S. W. 731, Mc-
Cloud V. Columbus, 54 Ohio St. 454, 44 N. E. 97, all holding directions
in city charter regulating taxation must be strictly followed; Amott
V. Spokane, 6 Wash. 447, 33 Pac. 1065, municipal corporations
derive all powers from charter. See note, 34 Am. Dec. 628.
Miscellaneous.— See note, 11 L. B. A. 818.
51 Tez. 322-330, DIQKAN ▼. SHIISLD&
A Bond VoluntaiUy Entered into, whether required by statute
or not, is good at common law if not repugnant to policy of the law.
Approved in Leona etc. Canal Co. v. Boberts, 62 Tex. 622, reaffirm-
ing rule.
51 Tex. 831-336, BTTFOBD ▼. OBAY.
Trespaea to Try Title can be maintained by party settling upon
vacant land as pre-emptor, and procuring a survey of the same;
title, though equitable and defeasible, upon compliance with law,
matures into legal title.
Approved in Home v. Gambrell, 1 Tex. Ap. Civ. 559, assignee of
pre-emptor may maintain action of trespass to try title.
A Call for Diatance and Quantity in a Orant will be disregarded,
when inconsistent with call for corner, which, though not recognized
by natural or artificial object at point, is ascertainable by established
marked lines which intersect at corner.
Approved in Woods v. Bobinson, 58 Tex. 662, and Marshall v.
Crawford, 2 Posey U. C. 479^ both reafirming rule. See note, 129
Am. St. Bep. 999.
51 Tex. 336-360, FITCH ▼. BOYES.
Domestic Judgment of Ooiirt of Cknnpetent Jnrisdictloa upon sub-
ject matter within scope of its power ia presumed to be valid, though
record is silent as to notice; unless contradicted by record, evidence
aliunde is inadmissible to prove lack of jurisdiction.
Approved in Murchison v. White, 54 Tex. 82, Crane v. Leon, 56
Tex. 329, Tennell v. Breedlove, 54 Tex. 543, Treadway v. Eastburn,
57 Tex. 214, Collins v. Miller, 64 Tex. 120, Wilkerson v. Schoonmaker,
77 Tex. 617, 19 Am. St. Bep. 806, 14 S. W. 224, Letney v. Marshall,
79 Tex. 515, 15 S. W. 587, East Texas etc. By. v. Graham, 24 Tex.
Civ. 528, 60 S. W. 476, all reaffirming rule; Greenway v. De Young,
34 Tex. Civ. 585, 79 8. W. 605, parol aliunde record in former suit
inadmissible to show defendants therein were nonresidents; Kenson
V. Gage, 34 Tex. Civ. 549, 79 S. W. 606, judgment of court of com-
petent jurisdiction awarding land to purchaser at delinquent tax
sale not collaterally attackable as to sufficiency of proof to show
valid assessment or sufficiency of citation to nonresident owners;
Carpenter v. Anderson, 33 Tex. Civ. 489, 77 S. W. 293, discussing
rights of bona fide purchaser at judgment sale; Smith v. Olsen, 23
51 Tex. 336-350 NOTES ON TEXAS EEFOBTS. 886
Tex. Civ. 464, 56 S. W. 571, fact that sheriff's sale made without
advertising it for time preseribed is meYe irregularity and does not
subjeet it to collateral attack; Johnson v. Wilcox, 53 Tex. 421,
where no appeal, no charge of fraud, and records destroyed, all
reasonable presumptions are in favor of judgment; Long v. Brenne-
man, 59 Tex. 212, presumption in favor of judgment where record
silent as to notice; Cooper t. Mayfield (Tex. Civ.), 57 S. W. 50,
judgment not subject to collateral attack where defendant yolun-
tarily appeared; Irish v. State, 34 Tex. Cr. 131, 29 S. W. 779, and
Allen V. State (Tex. Cr.), 59 S. W. 265, presuming all preliminary
matters pertaining to legality of result passed upon before judgment
entered; Ex parte Duncan, 42 Tex. Cr. 677, 62 S. W. 764, dissenting
opinion, majority holding judgment on contempt will not be sustained
on habeas corpus merely because court had jurisdiction.
Explained in Tucker v. Pennington (Tex. Civ.), 45 S. W. 314, but
holding default judgment of justice court cannot be attacked col-
laterally because not reciting that defendant had been cited.
Distinguished in Irvin y. Ferguson, 83 Tex. 495, 18 S. W. 821,
Hamblen v. Knight, 60 Tex. 39, both being direct proceedings to set
aside judgment, hence rule not applicable; Carlton v. Miller, 2 Tex.
Civ. 623, 21 S. W. 698, to sustain judgment by default on appeal,
record must show service of citation outside of recital in judgment.
Mistake in Execution of Ohristian Kama of one defendant and
recital that judgment bears interest when it does not, is not such
error as to render execution yoid in collateral proceeding.
Approved in Collins y. Hines, 100 Tex. 307, 99 S. W. 401, omission
of plaintiff's name in body of execution which is regularly indorsed
with names of parties does not invalidate it; Stephens y. Turner, 9
Tex. Civ. 627, 29 S. W. 938, describing defendants in judgment as
"J. H. Davis & Bros.," without giving names, does not invalidate it;
Jackson v. Finlay (Tex. Civ.), 40 S. W. 429, an execution is not
void because issued for too large an amount, but should be vacated
to extent of the excess; Barnes v. Nix (Tex. Civ.), 56 S. W. 204,
recital in execution that judgment was rendered July 15, 1895, where
judgment showed that it was rendered July 15, 1891, is not such
irregularity as will render execution sale thereunder void; Sneed v.
Townsend, 2 Posey U. C. 351, judgment voidable only is susceptible
of being ratified or confirmed.
Imperfect Description in Indorsement of Levy becomes immaterial
where followed by sheriff's deed clearly describing property.
Approved in Jones v. Meyer Bros.' Drug Co., 25 Tex. Civ. 237, 61
S. W. 554, informality in sheriff's return does not affect title of
purchaser. See note, 65 Am. Dec. 173.
Where Recorded Deed, on Face of Which Interlineations appear,
is filed with papers of cause, and three days' notice given of its filing,
it is admissible, unexplained, unless an affidavit in nature of plea
of non est factum is filed.
Approved in House v. Robertson (Tex. Civ.), 34 S. W. 642, reaffirm-
ing rule; Norton v. Conner (Tex. Sup.), 14 S. W. 195, deed recorded
thirty-three years previous, and filed among papers of the suit six
months before trial, is admissible in absence of attacking affidavit.
Though Joint Tenant cannot Convey Specific Portion of joint estate
to prejudice of cotenant, such deed is not absolutely void.
Approved in Cameron v. Thurmond, 56 Tex. 34, and Maverick v.
Burney, 88 Tex. 561, 32 S. W. 512, both reaffirming rule; Glasscock
887 NOTES ON TEXAS BEPOBTS. 51 Tex. 351-355
y. HngheB, 55 Tex. 470, setting apart land conveyed by cotenant with
consent of other cotenants.
An Ontstandlng Equity cannot 1>e Pleaded in defense of action
of trespass to try title, unless a connection be shown by defendant
with such title.
Approved in Gullett v. O'Connor, 54 Tex. 417, only those claiming
under prior equitable title can attack title of subsequent patentee;
Cox T. Cock, 59 Tex. 525, affirming judgment against appellants
where they showed no title whatever to property; Capt v. Stubbs,
68 Tex. 224, 4 S. W. 468, Tapp v. Corey, 64 Tex. 596, and Donovan
V. Ladner, 3 Tex. Civ. 206, 22 S. W. 62, all reversing judgment where
claimant failed to connect himself with outstanding equity.
Wheie Deed Properly Becorded, subsequent removal or destruction
of records, without fault of party, cannot affect his rights.
Approved in Paxson v. Brown, 61 Fed. 879, reaffirming rule; Hud-
son V. Bandolph, 66 Fed. 220, filing of deed or mortgage, and not
subsequent recording, constitutes notice.
Overruled in O'Neal v. Pettus, 79 Tex. 255, 14 S. W. 1066, Mattfeld
▼. Huntington, 17 Tex. Civ. 719, 43 6. W. 54, Tarrant Co. etc. Stock
Assn. V. Yellowstone Kit, 10 Tex. Civ. 689, 690, 31 S. W. 1082, 1083,
Barcus v. Brigham, 84 Tex. 540, 19 S. W. 704, all holding under acts
of July 13, 1876, and March 13, 1879, where record of deed is
destroyed, deed must be recorded again within four years. See notes,
91 Am. Dec. 336; 23 L. B. A. (n. s.) 1181.
Where Party in Possession of Land is driven from it by Indians
and returns as soon as it is safe, he cannot compute period of absence
under plea of limitations.
Approved in Gould v. Carr, 33 Fla. 535, 15 So. 263, 24 L. B. A. 130,
reaffirming rule under similar facts.
There is a Marked Distinction between the right to impeach judg-
ment in collateral proceeding, and right to impeach it in direct pro-
ceeding by appeal or error.
Approved in Wheeler v. Ahrenbeak, 54 Tex. 563, reaffirming rule;
Moore v. Prince, 5 Tex. Civ. 354, 23 S. W. 1114, arguendo.
51 Tex. 351-356v BfETBEBO T. STEAGALL.
The Bight to Intervene for Recovery of Damages for wrongful
attachment is limited to those having interest in subject matter of
original suit.
Approved in Fisher v. Bogarth, 2 Tex. Ap. Civ. 112, and Jaffray v.
Meyer, 1 Tex. Ap. Civ. 790, all reaffirming rule; Stansell v. Fleming,
81 Tex. 298, 16 S. W. 1035, sustaining exception to plea in interven-
tion, where party deprived of no right; Williams v. Bailey (Tex.
Civ.), 29 S. W. 835, where, pending suit, the goods attached were, by
order of court, eold, and proceeds deposited in court, claimant of
goods cannot intervene by suit for damages against plaintiff and the
sheriff.
It Seems That Creditors of a New Fiim have priority to assets of
the firm over creditors of the old firm.
Distinguished in Schneider v. Boe (Tex. Civ.), 25 S. W. 59, where
new firm assumes debts of an old firm, with assent of the creditors,
the creditors of both old and new firm stand on equal footing.
Semble, That Partner may Intenrene in attachment against firm
property for copartner's debt.
See note, 46 L. B. A. 493.
61 Tex. 360-383 NOTES ON TEXAS BEPOETa 88»
61 Tez. 360-369, FANNIN 00ITNT7 ▼. BIDDI.B.
Failure of County to Have Field-notes of survey of school land
returned to general land office prior to August 31, 1853, does not
prejudice its rights thereto.
Approved in Milam Co. v. Bateman, 54 Tex. 168, reaffirming rule;
Cameron's Exrs. v. State (Tex. Civ.), 67 S. W. 358, where school
lands patented to county territory of which not in state, purchasers
thereof not protected; Henderson Co. v. Shook, 51 Tex. 376, reversing
judgment under authority of rule; Saunders v. Hart, 57 Tex. 10, mis-
take of surveyor does not bind the state.
School LaadBk Being Set Apart for Particular Purpose, cannot, by
intendment, be construed as within terms of subsequent legislative
act by which different appropriation made.
Approved in Texas Cent. B. Co. v. Bowman (Tex. Civ.), 75 S. W.
556, statute providing that railroads have right of way through state
lands does not embrace public free school lands; Cameron's Exrs. v.
State (Tex. Civ.), 67 S. W. 354, holding void patents of school lands
to supposed county, territory of which not in state; dissenting opinion
in Galveston etc. By. v. State, 77 Tex. 435, 13 S. W. 632, majority
holding actual settlers residing on school lands shall be protected in
prior right of purchase.
61 Tez. S70-376, HENDERSON COXTNTT T. SHOOK.
Failure of County to Ha^e Field-notes of survey of school land
returned to general land office prior to August 31, 1853, does not
prejudice its rights.
Approved in Milam ▼. Bateman, 54 Tez. 168, reaffirming rule.
61 Tez. 376-383, McKINNEY T. OBASSMEYEB.
iKKsation of Land Oertiflcate upon public domain subject to location
severs land covered thereby from public domain for twelve months.
Approved in Sheppard v. Avery, 95 Tex. 506, 68 S. W. 506, 28 Tex.
Civ. 481, 69 S. W. 83, act validating grants in Austin's Little Colony
did not render such grant color of title to support adverse possession
as to part of land lying outside of colony and located by third party
prior to act; Gracey v. Hendrix, 93 Tez. 31, 51 S. W. 848, applicant
not complying with the law acquires no rights; Whitman v. Bhom-
berg (Tex. Civ.), 25 S. W. 452, junior locator is bound to take notice
of valid prior location and survey.
During Period of Twelve Months from iKKsation of land certificate,
location of same land by another is void.
Approved in Thompson v. Johnson, 2 Posey U. C. 260, and Taylor
V. Criswell, 4 Tez. Civ. 108, 23 S. W. 425, and Vance v. Ldndsey, 60
Tex. 288, setting aside file made before time within which pre- emptor
required to make return of field-notes; Cassin v. O'Sullivan, 61 Tex.
595, refusing to receive file within time allowed former pre-emptor
to return field-notes.
Correction and Return of Field-notes to general land office, where
survey made upon location originally void, will not constitute valid
appropriations as against one locating after such correction.
Affirmed in Shepard v. Avery, 89 Tex. 307, 34 S. W. 442, prior
to act of October 24, 1871, there was no statute regulating defective
field-notes.
689 NOTES ON TEXAS BEPOBTS. 51 Tex. 383-393
51 Tex. 383-389, GXTNTEB T. FOX.
Suits for Title or PossesBlon of Lands may be instituted by ex-
ecutors, administrators^ or guardians, alone, and judgments therein
are as conclusive as if rendered in favor of testator, intestate, or
ward.
Approved in Boggess ▼. Brownson, 59 Tex. 419, 420, reaffirming
rule; HoUis v. Dashiell, 52 Tex. 197, consent by guardian to judg-
ment against ward, though erroneous, is not void; Boggess v. Brown-
son, 59 Tdx. 421, applying rule to all property of estate without dis-
tinguishing between real and personal; Lawson v. Kelley, 82 Tex.
462, 17 S. W. 717, and MUler v. Foster, 76 Tex. 488, 13 S. W. 532,
heirs need not be made parties with executor; Zacharie v. Waldrom,
56 Tex. 117, heirs need not be joined with administrator in suit;
Cuney v. Shaw, 56 Tex. 438, administrator may represent estate. in
suit, and bind heirs; Miller ▼. Foster (Tex. Sup.), 12 S. W. 123, heirs
need not be made parties with the executor in suits involving title
to lands.
Distinguished in Budd v. Johnson, 60 Tex. 92, judgment against
administrator no bar to suit by heirs of mother for her community
interest.
Judgment Bendered Under Agreement and by consent of parties is
not subject to collateral attack.
Approved in Goliad v. Weisiger, 4 Tex. Civ. 659, 23 S. W. 696,
reaffirming rule; McClesky v. State, 4 Tex. Civ. 325, 23 S. W. 519,
judgment of court of competent jurisdiction not subject to collateral
attack, though agreement upon which based not binding upon parties.
61 Tex. 390-393, HILL ▼. ALLISON.
When, in Trespass to Try Title, plaintiff sets up deed under which
defendant claims, and then by allegations seeks to avoid it, he as-
sumes burden of proof.
Approved in Greathouse v. Martin, 100 Tex. 101, 94 S. W. 323,
where in action to recover for stockholder's money appropriated by
treasurer as salary pursuant to invalid vote of directors, petition al-
leged compensation was excessive, defendant, under general denial,
had burden of showing reasonableness; Sebastian v. Martin Brown
Co., 75 Tex. 292, 12 S. W. 986, before burden of proof shifts, in any
ease, plaintiff must establish prima facie case in his favor; Basse v.
Cadwallader (Tex. Civ.), 23 S. W. 262, in trespass to try title, where
plaintiff admits legal title in defendant, but alleges it to be invalid,
he must establish its invalidity; House v. Bobertson (Tex. Civ.), 34
S. W. 642, in trespass to try title where plaintiff pleads facts avoid-
ing a deed to defendant, burden is on plaintiff to prove the issue.
Distinguished in Peters v. Hanger, 134 Fed. 590, in suit for in-
fringement of patent, plaintiff alleging that infringements committed
within six years of suit has not burden of proving such allegation, as
it is matter of defense; Dawson v. Ward, 71 Tex. 76, 9 S. W. 108,
tax deed under illegal sale needs no proof of its invalidity.
The Pleadings of a Party must be construed most strongly against
the pleader.
Approved in Ogden v. Bosse, 86 Tex. 344, 24 S. W. 801, a party
need not prove what is distinctly alleged by adverse party; Texas
etc. By. ▼. Black, 23 Tex. Civ. 126, 57 S. W. 333, defendant may
avail himself of fact pleaded by plaintiff without alleging it.
61 Tex. 393-416 NOTES ON TEXAS BEP0BT8. 890
61 Tex. 393-401, 8HIELDB T. MOBBOW.
Under Act of Kovember 17, 1871 (Paachal's Digest, art. 7112), a
subcontractor, who supplied work or materials upon building under
contract with master builder only, ia not entitled to lien upon property
for payment of his debt.
Approved in Loonie v. Frank, 51 Tex. 408, Pool v. Sanford^ 62 Tei^
636, both reaffirming rule; Erath v. Allen, 55 Mo. Ap. 115, subcon-
tractor is not a "mechanic" or 'laborer," and hence cannot be sub-
rogated to rights of laborers to whom he has paid wages to maintain
suit on statutory bond for payment of mechanics, etc.
Mechanics' Lien Law is purely statutory.
Approved in Biter v. Houston Oil etc. Co., 19 Tex. Civ. 519, 48 S.
W. 759, subcontractor cannot charge property with lien in amount to
exceed amount due original contractor; Sens v. Trentune, 54 Tex.
220, to entitle contractor's laborer to benefit of the Uen he must have
fixed his lien, or have notified owner before owner paid contractor
in full.
51 Tex. 401-406, HOBAK ▼. FRANK.
Subcontractor has No Lien for construction of building under con-
stitution of 1876, article 16, section 37, or under act of August 7,
1876.
Approved in Pool v. Sanford, 52 Tex. 636, mere fact that one is
a subcontractor does not entitle him to a statutory mechanic's lien;
Loonie v. Frank, 51 Tex. 408, subcontractor not entitled to lien under
act of August 7, 1876.
Under Act of August 7, 1876, owner is liable to subcontractor in
amount not in excess of sum due principal contractor, upon presenta-
tion of attested account of amount due from principal contractor.
Approved in Pool v. Sanford, 52 Tex. 637, owner not liable under
lien for greater amount than contract price; Sens v. Trenture, 54
Tex. 220, subcontractor, to protect lien, must present claim to owner
before contract price paid; Harris Co. v. Campbell, 68 Tex. 28, 2
Am. St. Bep. 471, 3 S. W. 246, holding owner liable for labor done
where notice given before contract price paid; Berry y. Mc Adams,
93 Tex. 437, 55 8. W. 1114, materialman cannot enforce lien against
owner who paid contract- price without notice; Biter v. Houston Oil
Co., 19 Tex. Civ. 519, 48 S. W. 759, materialman's claim is too late
when made after payment of contract price to contractor.
Under Article 16, Section 37, Oonstitatlon of 1876, giving me-
chanics, and materialmen lien on structures worked on, the lien is
given on buildings and not on the land.
Approved in Crocker v. Grant, 5 Tex. Civ. 185, 24 S. W. 691, en-
forcing lien for erection of house upon homestead.
51 Tex. 406-409, LOONIE T. FBANK.
Under Act of August 7, 1876, subcontractor, under original con-
tractor, was not entitled to mechanic's lien on property improved.
Approved in Pool v. Sanford, 52 Tex, 636, Sens v. Trenture, 54
Tex. 220, Harris Co. v. Campbell, 68 Tex. 28, 2 Am. St. Bep. 471, 3
S. W. 246, all reaffirming rule.
61 Tex. 409-416, FIBEBAUOH ▼. WABD.
Acceptance of Claim by Administrator which is apparently barred
by limitation, and its approval by probate court, merge it into quasi
891 NOTES ON TEXAS BEPOBTS. 51 Tex. 416-429
judgment, which cannot be attacked in collateral proceeding by other
creditors on ground of limitation.
Approved in Martin v. Bobinson, 67 Tex. 381, 3 S. W. 556, reaffirm-
ing rule; Lyne ▼. Sanford, 82 Tex. 64, 27 Am. St. Bep. 857, 19 S. W.
849, fraud in administration sale ground for avoidance in direct at-
tack; Grant v. Hill (Tex. Civ.), 29 S. W. 250, and Grant v. Hill (Tex.
Civ.), 30 S. W. 955, both holding sale of decedent's land by order of
county court cannot be collaterally attacked for fraud by parties hav-
ing no interest in decedent's estate.
When Bill of Ezce^oiu Tendered does not, in court's opinion,
fairly state rulings, or reasons therefor, and party tendering it re-
fuses to adopt corrections required by judge, the presiding judge
should indorse thereon his refusal to sign and make out, sign, and
file such bill aa he thinks correctly presents rulings.
Distinguished in Lanier v. Ferryman, 59 Tex. 108, distinguished
where it does not appear that bill of exceptions was presented to the
court.
51 Tex. 416-421, HOUSTON ETC. S. B. T. CHAKBUSR.
Sworn Plea of Non Est Factum requires plaintiff to prove instm-
ment declared upon as at common law.
Approved in Tyler v. Adams (Tex. Civ.), 62 S. W. 119, reaffirming
rule.
Particnlar Facts BeUed npon in Evidence to defeat plea of non
est factum by establishing ratification of act need not be averred
in pleadings.
Approved in Hanover etc. Ins. Co. v. Shrader, 11 Tex. Civ. 261, 32
S. W. 344, and Mutual Benefit etc. Ins. Co. v. Collin Co. Nat. Bk.,
17 Tex. Civ. 479, 43 S. W. 832, both reaffirming rule; Eddy v. Bosley,
34 Tex. Civ. 120, 78 S. W. 567, admission in petition of intervention
that defendant husband had qualified as survivor of community estate
of himself and deceased wife cured failure of second wife's answer
to allege that fact; Bremner v. Fields (Tex. Civ.), 34 S. W. 447, it is
not necessary to plead ratification when act of delivery operates as
ratification of note signed in bla^nk.
Sabsequent Acknowledgment or Batiflcatlon, though instrument
originally signed without authority, defeats plea of non est factum
to suit on subscription.
Approved in Harmon v. Leberman, 39 Tex. Civ. 252, 87 S. W. 204,
where defendant, whose name appeared as surety on son's note, failed
to answer inquiry as to genuineness of signature but told wife to
write, and she answered that defendant would pay if son did not,
wife's letter admissible to show ratification of unauthorized signature;
Bremner v. Fields (Tex. Civ.), 34 S. W. 447, subsequent ratification
of note signed in blank defeats plea of non est factum.
51 Tex. 42lHt29, WHITMAN T. WILLIS.
As a General Bule, Courts of Law require only those whose interest
in subject matter is strictly legal to be made parties to suit. In
equity all who have interest in subject matter should be made parties.
Approved in Brackett v. Hinsdale, 2 Posey U. C. 470, reaffirming
rule; Mc Allen v. Hodge, 92 Minn. 72, 99 N. W. 425, where divorced
parties agreed in writing, for consideration, that wife released all
claims and causes of action she had against all persons for alienation
of husband's affections, husband may intervene in suit by wife for
alienation of husband's affections and interpose contract as defense;
61 Tex. 421-429 NOTES ON TEXAS BEPOBTS. 892
Fisher v. Abney, 69 Tex. 419, 9 8. W. 322, owner of outstanding
title need not be made party to suit which would not affect it; B. F.
Scott etc. Co. V. Carter (Tex. Civ.), 34 S. W. 378, retired partner can-
not intervene in suit against stranger for conversion of partnership
property where he discloses no other grounds; Wood v. Gulf etc.
By., 15 Tex. Civ. 327, 40 S. W. 27, insurance company paying insur-
ance for loss by fire has equitable interest in owner's claim of dam-
ages for loss from another. See note, 23 L. B. A. (n. s.) 536, 541.
When Bight to Personal Property Levied npon is Invol'ved in suit,
it is, as a general rule, proper practice to require claimant to resort
to statutory remedy for trial of right of property.
Approved in Hillebrand v. McMahan, 59 Tex. 454, and George v.
Dyer, 1 Tex. Ap. Civ. 429, both reaffirming rule; Whitman v. Willis,
51 Tex. 432, refusing injunction under the rule (the facts in case at
bar being an outgrowth of case cited); Fox v. Willis, 60 Tex. 378,
levy of attachment by vendor upon goods as vendee's destroys right
of stoppage in transitu; Johnston v. Luling Mfg. Co. (Tex. Civ.),
24 S. W. 998, mortgagee, not in possession, cannot intervene as a
claimant under the statute, but may come in under leave of the
court in suit to foreclose chattel mortgage; Bed dick v. Elliot (Tex.
Civ.), 28 S. W. 43, purchaser at execution sale of property previously
seized under distress warrant cannot intervene in a suit by landlord
for rent; Williams v. Bailey (Tex. Civ.), 29 S. W. 835, claimant of
goods sold by order of court, and proceeds deposited in court, can-
not intervene by suit for conversion against the plaintiff in the pend-
ing suit.
Where Title to Real Estate Directly Involved in Snit pending, any-
one having interest may intervene; but where title is not involved,
then third parties in possession, in oider to intervene, should allege
facts sufficient to authorize granting of injunction.
Approved in Hardy v. Abbott, 32 Tex. Civ. 69, 73 8. W. 1080,
where original action was by injunction to abate nuisance caused by
danger to oil fields from fire, court could not on petition of other
owners intervening appoint receiver to collect waste oil and sell il
for benefit of those interested; Pool v. Sanford, 52 Tex. 634, apply-
ing rule to personal, as well as real, property; Faubion v. Bogers,
66 Tex. 475, 1 8. W. 168, not allowing party to intervene, where not
shown that his title would be affected; Hinzie v. Kempner, 82 Tex.
621, 18 S. W. 661; Stansell v. Fleming, 81 Tex. 298, 16 S. W. 1035.
both sustaining exception to plea in intervention, where intervener's
rights unaffected; fHsher v. Bogarth, 2 Tex. Ap. Civ. 112, interest
authorizing intervention must be interest in subject matter of suit;
Hinzie v. Moody, 1 Tex. Civ. 29, 20 S. W. 770, dismissing plea in
intervention by heirs where rights not affected. See note, 123 Am.
St. Bep. 285.
Bight of Intervention is Derived through ecclesiastical courts of
England, and modifications of civil law; it rests upon principle that
party should be permitted to do voluntarily what courts of equity
require.
Approved in Pool v. Sanford, 52 Tex. 633, reaffirming rule.
Injunctions are Granted to Restrain Alienation of Property only
where it is indispensable to secure enjoyment thereof, or to preserve
title, or prevent gross irremedial injustice.
Approved in Chamberlain v. Baker, 28 Tex. Civ. 501, 67 S. W. 534,
attempt to sell land under execution against plaintiff's vendor, claim-
893 NOTES ON TEXAS REPORTS. 51 Tex. 429-443
ing conveyance to him to be in fraud of plaintiff in such execution,
not threatened cloud on plaintiff's title warranting injunction against
sale; Braden v. Gose, 57 Tex. 42, and Bed v. Johnson, 53 Tex. 288,
both dismissing injunction not showing damage; Spencer v. Bosen-
thal, 58 Tex. 5, refusing injunction, where no damage would result
from sale; Heath v. First Nat. Bank (Tex. Civ.), 32 S. W. 779, an
action to remove cloud on title does not lie in favor of one alleging
perfect legal and equitable title against one attaching it as property
of another. See note, 62 Am. Dec. 524.
Distinguished in Webb v. Hayner, 49 Fed. 605, distinguished on
facts, where sale sought was the homestead.
More Indulgence Sbould be Qranted in favor of wife to intervene
to protect her interest in property as homestead levied upon for hus-
band's debts.
See note, 76 Am. Dec. .94.
51 Tex. 429-432, WHITMAN T. WIUJS.
Petition to Enjoin Execution Sal^ must show serious infringement
of legal rights, or irreparable injury.
Approved in Mann v. Wallis, 75 Tex. 613, 12 S. W. 1124, reaffirm-
ing rule; Bell v. Read, 23 Tex. Civ. 97, 56 S. W. 585, denying injunction
at instance of minor heir in possession of homestead to restrain exe-
cution sale of interest of other adult heirs therein; Magoffin v. San
Antonio Brewing Assn. (Tex. Civ.), 84 S. W. 844, refusing injunction
to restrain sale on execution against another where complainant was
in possession under record title; Wofford v. Booker, 10 Tex. Civ.
174, 30 S. W. 68, order of sale under void judgment may be en-
joined by one whose property is invaded; Heath v. First Nat. Bank
(Tex. Civ.), 32 S. W. 780, an action to remove cloud on title does
not lie in favor of one alleging perfect legal and equitable title
against one attaching it as property of another; Poddock v. Jackson,
16 Tex. Civ. 658, 41 S. W. 701, refusing injunction where no injury
would result from sale. See notes, 62 Am. Dec. 524; 54 Am. St.
Bep. 251; 30 L. B. A. 111.
51 Tex. 432-436, SPRING T. EISENACH.
Title of Pitrchaser of Land XTndor Junior Judgment, where sheriff's
deed was not duly recorded, is unaffected by subsequent sale for
enforcement of senior judgment lien, where first purchaser not made
party to suit ordering second sale.
Approved in Bassett v. Proetzel, 53 Tex. 5.80, Bailey v. Laws, 3
Tex. Civ. 535, 23 S. W. 22, both reaffirming rule; Boone v. Miller, 86
Tex. 79, 23 S. W. 575, legal right of possession and title of land
remain with maker of trust deed until trust deed foreclosed; Ogden
V. Bosse, 86 Tex. 343, 24 S. W. 801, party deriving title from the
common source, with other party holding mortgage of prior date,
without right of possession is entitled to recover; French v. Pyron,
2 Posey U. C. 720, discharge in bankruptcy does not affect right of
foreclosure of deed of trust.
51 Tex. 436-443, BIEBBIWETHEB T. HABDEBiAN.
Partner Advancing Sum in Excess of That Eequired by terms of
partnership cannot require contribution for excess without going into
general settlement of partnership accounts.
Approved in McKay v. Overton, 65 Tex. 85, Wormley v. Smith, 26
Tex. Civ. 272, 63 S. W. 904, both reaffirming rule.
51 Tex. 443-454 NOTES ON TEXAS BEP0RT8. 894
DiBtinguished in McKay y. Oyerton, 65 Tex. 83, executrix of de-
ceased partner may sell other partner withoat settlement of partner-
ship affairs, where indebtedness independent of partnership.
In Beopening Settlement Between Partners, alleged to have been
procured by fraud, or mietake, of managing partner, trusted as auch,
equity will allow more latitude than where no confidence reposed.
Approved in Kneeland ▼. McLachlen, 4 Tex. Civ. 206, 23 8. W.
311, partnership closed by one partner buying out other and giving
note, in suit on note allegation of erroneous entry in books no de-
fense.
61 Tex. 443-450, FBEEICAK ▼. MHiT.KR
When Oamiflliee, Witbont Ezcnse Shown of Becord, fails to answer
one or more statutory questions, court may render judgment as if no
answer made; and if injustice done garnishee, he can only be relieved
by suit to set aside judgment.
Approved in Freeman v. Miller, 53 Tex. 377, reaffirming rule; Hollo-
way Seed Co. v. City Nat. Bank (Tex. Civ.), 47 S. W. 80, failure of
garnishee to answer questions prescribed by statute authorizes entry
of default judgment against him; Sherman v. Shobe, 94 Tex. 131, 86
Am. St. Bep. 825, 58 S. W. 950, garnishee cannot accept or waive
service as between two contesting parties.
Distinguished in Jemison v. Scarborough, 56 Tex. 361, as being pro-
ceeding to ascertain whether garnishee is indebted to, or has effects
of, defendant in original suit.
Fact That Officer's Betom Faila to Show issuance of legal process
to compel garnishee to appear and answer cannot affect jurisdiction
of officer before whom garnishee voluntarily appeared.
Approved in Selman v. Orr, 75 Tex. 531, 12 S. W. 697, 6 L. B. A.
844, reaffirming rule under similar facts.
Though Oamishment Proceedings are strictly construed, yet where
statute prescribes precise questions to be asked, and requires that
they be answered, it must be strictly complied with.
Approved in Simon v. Ash, 1 Tex. Civ^. 206, 20 S. W. 720, defective
answer does not operate as no answer filed; Gay Banch Co. v. Pember-
ton, 23 Tex. Civ. 421, 57 S. W. 72, entering judgment as by default,
where answer not complete as to all points.
Oamishee Failing to Answer Interrogatories is prima facie guilty
of negligence, and cannot obtain relief unless he rebuts this pre-
sumption.
Approved in First Nat. Bank v. Bobertson (Tex. Sup.), 19 S. W.
1070, instance where answer of bank, as garnishee^ was held suffi-
cient denial of indebtedness.
61 Tex. 450-454, BIQHAM ▼. TALBOT.
petition in Suit on Oontract as to place of performance, alleging
residence of defendant in county different from that where suit is
brought, and alleging that it was understood that money due was
to be paid in county where suit was brought, does not authorize court
to exercise jurisdiction.
Approved in Johnson v. Price, 2 Tex. Ap. Civ. 663, reaffirming rule;
Kansas City etc. By. v. Bermea Land etc. Co. (Tex. Civ.), 54 S. W.
325, venue is properly raised by exception where fact of suit in wrong
county appears on face of the petition.
895 NOTES ON TEXAS REPORTS. 51 Tex. 454-469
51 Tez. 464-457, CHBISMAK T. GRAHAM.
Supreme Court cannot Aacertain Jurisdiction of district court hj
eyidence aliunde the record.
Approved in Griffin v. Brown, 1 Tex. Ap. Civ. 619, reaffirming
mle; Leman v. Borden, 83 Tex. 621, see 19 S. W. 160, indorsement
on sheriff's levy is conclusive as to jurisdiction; Miller v. City Bank
of Sherman, 1 Tex. Ap. Civ. 746, Bowser v. Williams, 6 Tex. Civ.
202, 25 S. W. 455, and H. & T. C. R. R. v. McGlasson, 1 Tex. Ap.
Civ. 631, all holding record must affirmatively show court had juris-
diction; Poole V. Mueller (Tex. Civ.), 30 S. W. 952, jurisdiction on
appeal must be determined solely by inspection of the record.
Where County Judge Dimiuallfied to Try Cause, the district court
may have original jurisdiction, but record must show- affirmatively
how jurisdiction acquired.
Approved in Austin v. Nalle, 85 Tex. 550, 22 S. W. 961, record
must show disqualification of judge.
County Court lias ExcIusItb Jurisdiction in all cases where matter
in controversy exceeds in value two hundred dollars, and does not
exceed five hundred dollars.
Approved in Marx v. Carlisle, 1 Tex. A p. Civ. 39, justice of peace
has no jurisdiction where value of property exceeds two hundred
dollars.
61 Tex. 457-462, USHMBEBG T. BIBEBSTEIN.
Deed cannot be Attacked for Fraud by Creditor whose claim origi-
nates after execution of deed, or who acquires claim with notice of
deed.
Approved in Hodges v. Taylor, 57 Tex. 199, Lewis v. Simon, 72
Tex. 475, 10 S. W. 555, Graham v. Estate of Townsend, 62 Neb. 366,
87 N. W. 170, and Kaufman v. Alexander, 2 Posey U. C. 532, all re-
affirming rule. See notes, 52 Am. Dec. 114; 62 Am. Dec. 506; 14 Am.
St. Rep. 751.
Suit to Cancel Deed for Fraud in Its Execution may be instituted
in county of defendant's residence, regardless of location of property.
Approved in Fuller v. Horner, 69 Kan. 470, 77 Pac. 89, action by
creditor to set aside fraudulent conveyance may be brought wherever
parties found, and in such action court may compel defendants to
do all things necessary according to lex loci rei sitae; State v. Dis-
trict Court, 94 Minn. 373, 102 N. W. 871, action to cancel contract
for sale of land for fraud and for recovery of price paid before
discovery of fraud, where vendee had no title, is transitory. Bee note,
70 Am. Dec. 394.
61 Tex. 462-469, HOUSE T. TALBOT.
Failure of Locator of Land to File Certiflcate with iield-notes of
survey, returned to general land office, does not work forfeiture of
survey, if valid in other respects.
Approved in Van Rosenberg v. Cuellar, 80 Tex. 259, 16 S. W. 61,
reaffirming rule; Snider v. Methvin, 60 Tex. 495, statute does not
expressly make it necessary to file certificate with survey within
twelve months; Sheppard v. Avery (Tex. Civ.), 32 S. W. 793, where
plaintiff's field-notes were not returned prior to August SI, 1853, he
must show superior equities over defendant.
Locations by Genuine Land Claimant were void under act of Feb-
ruary 10, 1862, unless lands located prior to passage of act were sur-
61 Tex. 469-490 NOTES ON TEXAS REPORTS. 896
veyed prior to passage of act, and locations eubsequent to passage
were surveyed within twelve months from location.
Approved in Jones v. Lee, 86 Tex. 34, 22 S. W. 391, reaflBlrming
rule.
61 Tex. 469-480, BBOWN T. OHENOWOBTH.
Jury must be Granted, though it be demanded at term subsequent
to that at which case is at issue, if demanded before case reached
on nonjury docket.
Approved in Dunlap y. Brooks, 3 Tex. Ap. Civ. 427, reaffirming
rule; Schumacher v. Crane-Churchill Co., 66 Neb. 444, 92 N. W. 611,
waiver of jury at first trial in ejectment does not preclude demand
of jury at second trial after first judgment set aside; Bumham v.
North Chicago etc. By., 88 Fed. 629, stipulation to waive jury should
be strictly construed in favor of right.
Apparaot Legal Owner of Negotiable Note may sue on same, and
to defeat recovery defendant must show defense against beneficial
owner.
Approved in Matlock v. Glover, 63 Tex. 235, reaffirming rule; Lewis
v. Womack (Tex. Civ.), 33 S. W. 894, holder of legal title to note
may sue thereon, though not full owner, where maker's defense is not
prejudiced thereby; dissentin'g opinion in Stewart v. Price, 64 Kan.
209, 67 Pac. 558, 64 L. B. A. 581, majority holding one holding, by
written assignment, itemized verified account cannot sue thereon in
own name, where by contemporaneous oral agreement he had agreed
to pay full amount, when collected, to assignor.
Jury cannot bo Befused for Failure to Deposit Fees if case called
before expiration of time in which defendants had right under law
to deposit them.
Approved in Brown v. State, 89 Ga. 340, 15 3i E. 462, refusal to
permit defendant to withdraw waiver and grant him jury is error.
Distinguished in Cole v. Terrell, 71 Tex. 553, 9 S. W. 669, distin-
guished where no jury demanded prior to day of trial.
Declarations of Stranger made in pursuance of design of conspiracy
are admissible, where facts proven tend to show that conspiracy had
been formed connecting one not a party to suit.
Approved in San Antonio Gas Co. y. Texas, 22 Tex. Civ. 124, 54
S. W. 292, reaffirming rule.
Where Actual Issae Made by Eyidence under plea of non est factum
to note relates to execution, objections based on alterations apparent
on face made after testimony closed are deemed waived.
Distinguished in Tabet v. Powell (Tex. Civ.), 78 S. W. 998, in ac-
tion against principal and agent on contract made by latter, former
not estopped to object that agent exceeded authority by failure to
object to admission of contract.
61 Tex. 480-490, 32 Am. Bep. 627, DAUENHAITEB T. DEVINB.
District Court has Jurisdiction of suit to enjoin placing of windows
in party-wall contrary to agreement, since title and possession of
land are sufficiently involved thereby, regardless of amount in dis-
pute.
Approved in Harber v. Evans, 101 Mo. 666, 20 Am. St. Bep. 648,
14 8. W. 751, 10 L. B. A. 41, Shiverick v. Gunning Co., 58 Neb. 33, 78
N. W. 461, Normille v. Gill, 159 Mass. 428, 38 Am. St. Bep. 442, 34 N.
E. 544, and Graves v. Smith, 87 Ala. 453, 13 Am. St. Bep. 63, 6 So.
897 NOTES ON TEXAS BEPOBTS. 51 Tex. 490-493
309, 5 Li B. A. 298, all reaffirming rule; Springer v. Darlington, 207 111.
246, 69 N. E. 949, injunction restraining party to party-wall agreement
for maintaining openings in wall as constructed bj him and from
interfering with complainant in closing them is proper remedy; Gas-
camp ▼. Drews, 2 Tex. Ap. Civ. 75, Scripture v. Kent, 1 Tex, Ap. Civ.
597, both applying rule in controversy over dividing fence; Everly v.
DriskUl, 24 Tex. Civ. 421, 58 S. W. 1050, irreparable injury need not be
shown to entitle party to injunction; Haby v. Koenig, 2 Posey U. C. 440,
interposing injunction to protect easement; arguendo in Anderson Co.
T. Kennedy, 58 Tex. 623, district court may issue injunction to restrain
tax sale, regardless of amount involved ; Galveston etc. By. v. Dowe, 70
Tex. 3, 6 S. W. 792, district court may issue injunction, where chancery
court would do so regardless of amount involved. See notes, 92 Am.
Dec. 292, 295, 297, 298; 13 Am. St. Eep. 63; 42 Am. St. Eep. 729; 20
L. B. A. 162.
Where Original Party-wall Agreement provided for a wall without
windows, no right exists in either party to erect another story with
windows opening on that part of wall belonging to his neighbor.
Approved in Springer v. Darlington, 207 111. 244, 69 N. £. 949, fol-
lowing rule. See note, 89 Am. St. Bep. 928.
Distinguished in Witte v. Schasse (Tex. Civ.), 54 8. W. 276, one
party to party-wall agreement, under provision that he could raise the
wall on payment of fifty per cent of its cost, cannot close up the
windows above his building, where he does not intend to raise his
building.
One ^arty may Balse Party-wall if it can be done without injury.
See note, 20 L. B. A. (n. s.) 387.
51 Tex. 490-493, PEOK T. SAK ANTONIO.
The Military Supreme Court not having been organized under the
constitution and laws of the state, its opinions have not the same
authoritative sanction given to those of the court as regularly con-
stituted.
Approved in American Cotton Co. v. Phillips, 31 Tex. Civ. 80, 71 S.
W. 321, following decision of military court where it announced correct
doctrine; Howard v. Galbraith (Tex. Civ.), 30 S. W. 692, judgment
of a special January term of court, in Fannin county, held by virtue of
a military order from the "Fifth military district of Texas," is a
nullity, where supported by a citation to appear in following February.
The Decisions of the Supreme Court of the United States will not
be followed as against decisions of this state in cases involving con-
struction of statutes under Texas constitution.
Approved in Barbee v. Stinnett, 60 Tex. 167, People's Nat. Bank v.
Mulkey, 94 Tex. 398, 60 S. W. 754, and Cooper v. Austin, 58 Tex. 503,
all holding former decisions of court are not necessarily binding.
Every Law Enacted by the Legislature shall embrace but one ob-
ject, that shall be expressed in the title.
Approved in Morrill v. Smith Co., 89 Tex. 553, 36 S. W. 61, reaffirm-
ing rule; Wade v. Atlantic Lumber Co., 51 Fla. 634, 41 So. 74, land
grant to be selected by company from state at large is not within
scope of statute entitled "An act to incorporate" named railroad. See
note^ 64 Am. St. Bep. 104.
2 Tex. Notes— 67
51 Tex. 494-513 NOTES ON TEXAS BEPOBTa 89S
61 Tex. 494-503, HANBICns: y. ALEXANDEB.
Notorious Insolvency of Maker of Note, if alleged and proven, is
sufficient excuse for delay in suing indorser.
Approved in Norton v. Wochler, 31 Tex. Civ. 525, 72 S. W. 1026, and
Hunt V. Porter, 1 Tex. Ap. Civ. 698, both reaffirming rule; First Nat.
Bank v. De Morse (Tex. Civ.), 26 S. W. 419, where maker of note is
insolvent and in the penitentiary, protest and notice, or suit at first
term are unnecessary to hold indorser. See notOi 18 L. B. A. (n. s.)
557.
51 Tex. 603-513, 82 Am. Bep. 632, ClJNNINaHAM t. INTEB-
NATIONAL B. B.
Parties are not Liable for Injuries resulting from negligence of in-
dependent contractors or their servants, while engaged in doing work
for such parties.
Approved in Burton v. Oalveston etc. By., 61 Tex. 535, Gulf etc
B. B. V. Flake, 1 Tex. Ap. Civ. 100, Scarborough v. Alabama Mid-
land By., 94 Ala. 501, 10 So. 317, Capper v. Louisville etc. By.,- 103
Ind. 309, 2 N. E. 752, Knoxville Iron Co. v. Dobson, 7 Lea, 371, Pow-
ell V. Construction Co., 88 Tenn. 703, 17 Am. St. Bep. 931, 13 S. W.
694, and Bibb v. Norfolk etc. B. B., 87 Va. 756, 14 S. E. 178, all
reaffirming rule; Southern Oil Co. v. Church, 32 Tex. Civ. 327, 74 S. W.
798, one furnishing defective machinery to independent contractor
for use by latter's servants under former's contract, not liable for in-
juries to servant resulting from defect; Chattahoochee & Gulf B. B.
Co. V. Behrman, 136 Ala. 510, 35 So. 133, where independent contractor
building railroad erects in street embankment, unnecessary to per-
formance of contract, railroad not liable for damages to abutting
property; Indianapolis etc. Transit Co. v. Andis, 33 Ind. Ap. 633, 72
N. E. 148, employee of interurban electric road, repairing its tracks,
when carried to or from work, is not passenger, but fellow-seryant of
motorman; Herrman v. Great Northern By. Co., 27 Wash. 483, 68 Pac^
86, holding railroad using union depot in charge of depot company
liable for injury to passenger caused by failure to keep approaches in
safe condition; Missouri etc. By. Co. v. Ferch (Tex. Civ.), 36 S. W.
488, railway company is not liable for negligence of its independent
contractor engaged in doing work on its road; Borne etc. B. B. v.
Chasteen, 88 Ala. 593, 7 So. 96, liability depends upon existing rela-
tions between contractor and employer; Knoxville Iron Co. v. Dobson,
7 Lea, 374, employer becomes liable when contractor submits to his
control; Cogswell v. West St. etc. Electrfc By., 5 Wash. 52, 31 Pac.
413, railroad company liable where contractor under its control. See
notes, 21 Am. St. Bep. 178; 76 Am. St. Bep. 384; 76 Am. St. Bep. 411,
413.
Belation of Master and Servant does not exist in ease of in-
dependent contractor who is not under immediate direction of em-
ployer.
Approved in Cunningham v. Moore, 55 Tex. 377, 40 Am. Bep. 813,
Brown v. McLeish, 71 Iowa, 382, 32 N. W. 386, both reaffirming rule;
Southwestern Telegraph & Tel. Co. v. Paris, 39 Tex. Civ. 426, 87 S. W.
725, one contracting to do certain painting for defendant for fixed-
price and to furnish all materials and help is not defendant's servant;
Southern Cotton Oil Co. v. Wallace, 23 Tex. Civ. 16, 54 S. W. 640, where
oil company engaged A to bale cotton-seed hulls with its machinery
at so much per bale and exercised control over manner and means of
899 NOTES ON TEXAS BEPOBTS. 51 Tez. 513-528
-work, A wai servant and not independent contractor; Walker y.
Simmons Mfg. Co., 131 Wis. 549, 111 N. W. 697, holding relation of
master and servant existed where plaintiff worked in defendant's
factory under supervision of its foreman, and plaintiff was under
supervision of defendant's superintendent; Wallace v. Southern Cotton
Oil Co., 91 Tex. 21, 40 S. W. 401, holding company liable where it
exercised authority over contractor; Atlanta etc. B. B. v. Kimberly,
87 Ga. 172, 27 Am. St. Bep. 238, 13 S. E. 280, contract with other
parties to construct roadbed does not render railroad company liable
for damages by independent contractor. See note, 65 L. B. A. 457.
Ballroad is not lilable for Negligent Management of train con-
trolled by construction contractor on portion of road not yet turned
over to company.
See notes, 44 L. B. A. 752, 753; 65 L. B. A. 643.
Principle That Ballroad cannot Delegate to employee chartered
rights so as to exempt it from liability does not extend to use of
ordinary means for construction of road.
See notes, 66 L. B. A. 139; 9 L. B. A. 604.
51 Tez. 513-520, EBWIN T. BOWMAN.
A Sheriff or Constable Who Enforces by Lery and Sale the collec-
tion of a judgment, in which he has an interest beyond his regular
fees, is a trespasser.
Approved in Brown v. Bridges, 70 Tex. 664, 8 S. W. 503, holding
constable guilty of trespass for making illegal levy upon property
exempt from execution.
JuAgnneat will not be Beversed where erroneous charge could not
have prejudiced complaining party, and where, if verdict on proper
charge had been rendered for him, it would have been set aside.
Approved in Dotson v. Moss, 58 Tex. 155, Bowles v. Brice, 66 Tex.
731, 2 S. W. 733, Lee v. Welborne, 71 Tex. 502, 9 S. W. 472, and
Holland v. Frock, 2 Posey U. C. 567, all reaffirming rule; Galveston
etc. B. B. V. Delahunty, 53 Tex. 212, sustaining judgment where no
injury resulted from erroneous instruction.
Levying Officer Onilty of Trebpaas cannot mitigate damages by
showing payment of proceeds of levy to judgment creditor, where
such payment was without assent of debtor.
Approved in White v. Stribling, 71 Tex. 109, 10 Am. St. Bep. 734,
9 8. W. 82, landlord issuing distress warrant is not presumed to have
intended or ratified an illegal levy of it in absence of proof to con-
trary.
51 Tez. 620-628, MUBBELL T. SCOTT.
Where a Creditor baa Personal Security, together with mortgage or
other collateral security, the surety, upon discharging the debt, is en-
titled to have collateral security assigned to him, and if creditor,
by negligence or design, lose it, the surety is discharged to extent of
collateral security lost.
Approved in Harrison Machine Works v. Templeton, 82 Tex. 477y|
18 S. W. 602, holding creditor liable for negligence in not having
property sold; Embree v. Strickland, 1 Tex. Ap. Civ. 754, discharg-
ing surety on note from liability to extent of proceeds of sale under
execution; Kiam v. Cummings, 13 Tex. Civ. 199, 36 S. W. 770, giving
surety collateral security upon payment of debt; Bums v. Staacke
(Tex. Civ.), 53 S. W. 354, where personal property, for which mort-
61 Tex. 529-536 NOTES ON TEXAS BEPORTS. 900
gage and personal securitj was given, was returned to creditor, value
of the property returned should be credited pro rata on all the notes.
See note, 68 L. B. A. 530, 531.
A Trustee is not an Agent of a Creditor so as to render creditor
responsible for his want of diligence in executing trust, nor will
subsequent assent bj creditor to wrongful act already done make
him liable for loss already incurred.
Approved in Hull v. Pace, 61 Mo. Ap. 122, trustee ia not the agent
of creditor.
61 Tex. 629-632, KILLEBBEW t. ST0CKDAI£.
Filing of Petition, though bad on general demurrer, stops running
of statute of limitations.
Approved in Tarkinton v. Broussard, 51 Tex. 655, Wofford v. lin-
ger, 53 Tex. 641, McKeen v. Sultenfuss, 61 Tex. 330, and Kauffman
V Wooters, 79 Tex. 214, 13 S. W. 552, all reaffirming rule; Texas etc.
By. V. Johnson (Tex. Civ.), 34 S. W. 188, in suit for personal injuries,
an amendment alleging defendant's negligence in employing the
servant causing the injury relates back to original petition which al-
leged the general negligence.
Amendment to Defective Petition is not the commencement of new
suit.
Approved in Becker v. Gulf City St. By. etc, Co., 80 Tex. 486, 15
S. W. 1098,. Millington v. Texas etc. By., 2 Tex. Ap. Civ. 149, and
Bippetoe v. Dwyer, 1 Posey U. C. 506, all reaffirming rule.
Miscellaneous.— Fortune v. Killebrew (Tex. Civ.), 21 S. W. 987, this
being same case on subsequent appeal.
61 Tex. 632-636, 32 Am. Bep. 637, BBYAN T. PAGE.
Where Power of a City Council is Limited by Charter, it cannot
make valid contract except in pursuance of an ordinance as pre-
scribed.
Approved in Flood v. State, 19 Tex. Ap. 588, Nichols v. State, 11
Tex. Civ. 335, 32 S. W. 455, Pryor v. Kansas City, 153 Mo. 150, 54
S. W. 504, Paul V. City of Seattle, .40 Wash. 300, 82 Pac. 604, Arnott
V. Spokane, 6 Wash. 447, 448, 33 Pac. 1065, and Berlin Iron Bridge
Co. V. San Antonio, 62 Fed. 890, all reaffirming rule; Miller v. State,
44 Tex. Cr. 104, 69 S. W. 525, holding election to levy tax for school
purposes, ordered by resolution of council, is void; Fayette County v.
Krause, 31 Tex. Civ. 573, 73 S. W. 53, where members of commis-
sioner's court gave verbal consent, while court in session, that dC'
fendants might connect private with county sewer, county not bound
thereby; City of Tyler v. Jester (Tex. Civ.), 74 S. W. 366, city not
bound by renewal of indebtedness not authorized by city council;
Penn v. Xiaredo (Tex. Civ.), 26 S. W. 636, contract of mayor with
public newspaper, making it the official newspaper, not authorized
by ordinance or resolution of city council, is not binding although
council act on it; Nicholas v. State, 11 Tex. Civ. 331, 333, 32 S. W.
453, 454, contract by commissioners in excess of authority conferred
by legislature not binding upon state; Wagner v. Porter (Tex. Civ.),
56 S. W. 561, act of common council of municipality in authorizing
the mayor to make certain contract can only be shown by its inin-
utes; Peck v. Hempstead, 27 Tex. Civ. 85, 65 S. W. 655, holding bonds
not authorized by municipal ordinance void, although negotiated by
mayor and secretary of the city, and indorsed as authorized on their
901 NOTES ON TEXAS BEPOBTS. 51 Tex. 536-543
faee; Charleston v. Beed, 27 W. Va. 687, 55 Am. Bep. 340, ordinance
without authority ia void. See notes, 34 Am. Dec. 627; 1 L. B. A.
169.
A Olty cannot be Bound bj an implied contract where charter pre-
scribes mode of making contract.
Approved in Stubbs y. Galveston, 3 Tex. Ap. Civ. 185, reaffirming
rule; Baldwin v. Travis County, 40 Tex. Civ. 158, 88 8. W. 484, com-
missioner's court cannot make county liable by contract for publish-
ing citation to nonresidents and unknown owners in suits for enforce-
ment of delinquent taxes; San Antonio v. French, 80 Tex. 578, 26
Am. St. Bep. 766, 16 S. W. 441, city not bound by unauthorized act
of its officers; Noel v. San Antonio, 11 Tex. Civ. 585, 33 S. W. 265,
implication that contract was made in violation of constitution can
never arise. See note, 26 Am. St. Bep. 766.
Distinguished in Boydston v. Bockwall Co., 86 Tex. 240, 24 S. W.
£74, court commissioners can ratify unauthorized act of county judge
in buying bonds of another county.
Subsequent Use by Oity of Opinion of Attorney, illegally employed
by its officers, creates no legal obligation on the city.
Approved in Nichols v. State, 11 Tex. Civ. 336, 32 S. W. 456, reaf-
firming rule; Boydstun v. Bockwall County (Tex. Civ.), 23 S. W.
543, holding purchase of bonds by county judge without order of
county court as provided by law void. (But on rehearing holding
such unauthorized contract might be ratified by county court.)
Attorneys are Bound to Know Obarter Limitations on authority of
city council employing them.
Approved in Indiana etc. Co. v. Sulphur Springs (Tex. Civ.), 63
S. W. 909, party knowing objections to contract should ascertain
legality thereof. See note, 38 Am. St. Bep. 910.
51 Tex. 536-540, RAYMOND T. OONQEB.
Where Injunction Issues to Enjoin Proceedings under judgment, the
proper practice on final hearing is to dispose of whole case, both on
injunction and merits, in one proceeding.
Approved in Bowden v. Crow, 2 Tex. Civ. 596, 21 S. W. 614, apply-
ing rule to suit to vacate award of arbitrators. See note, 54 Am.
St. Bep. 245.
Miscellaneous. — See note, 31 L. B. A. 208.
61 Tex. 640-643, BT7BDETT y. HALEY.
Action of Trespass to Try Title may be maintained upon equitable,
as well as legal title.
Approved in Stafford v. Stafford, 96 Tex. 112, 70 S. W. 76, and
New York etc. Land Co. v. Hyland, 8 Tex. Civ. 614, 28 S. W. 211,
both reaffirming rule; Boggess v. Brownson, 59 Tex. 419, adminis-
trators may bring and defend suit for land without joining heirs.
Where Consideration is Advanced by Father, and deed taken in
name of son, the presumption arises that it was intended as an ad-
' vancement of the son rather than a resulting trust to the father.
Approved in Hawley v. Geer (Tex. Sup.), 17 S. W. 915, instance
where parol was sufficient to establish a resulting trust where land
was conveyed to grantor's son in law; Wiedner v. Hell (Tex. Civ.),
26 S. W. 781, in such cases evidence oi resulting trust is inadmissible
unless alleged.
51 Tex. 544-562 NOTES ON TEXAS REPOBTa 902
51 Tex. 544r^45, STEPHENSON y. BASSETT.
Judgment must Confonn to tbe Pleadings.
Approved in Smitherg v. Smith, 35 Tex. Civ. 511, 80 S. W. 647,
where in trespass to try title there was no issue as to location of land,
court could not enter judgment describing land; Cooper v. Conerty,
83 Tex. 136, 18 S. W. 335, reversing judgment not in conformity to
pleadings.
61 Tex. 546-550, B08E T. WINN.
Generally, Omitted Formal Condiuion of Bond will be supplied by
construction, if, from inspection of entire instrument, it is manifest
that omission was accidental.
Distinguished in Sacra v. Hudson, 59 Tex. 208, suit by heirs on
bond of guardian not naming payee cannot be maintained.
61 Tex. 550-655, TABKINTON T. BBOUSSASD.
Verdict Found on Conflicting Testimony will not be disturbed on
appeal, unless preponderance of evidence against correctness sufficient
to authorize the court to declare it clearly wrong.
Approved in Howard v. Kopperl, 74 Tex. 506, 5 S. W. 634, Mitchell
V. Dallas City Gas Light Co., 1 Tex. Ap. Civ. §2, and Giltner v.
Waters, 2 Posey U. C. 516, all reaffirming rule.
Thonii^ Petiti<m in Attachment, accompanied by statutory affidavit,
be bad on general demurrer, it may be amended to support the attach-
ment.
Approved in Woldert ▼. Ncdderhut etc. Provision Co., 18 Tex.
Civ. 604, 46 S. W. 380, reaffirming rule; Lutterloh v. Mcllhenny Co..
74 Tex. 76, 11 S. W. 1064, amendment setting up new cause of action
is fatal to attachment; Bennett v. Rosenthal, 3 Tex. Ap. Civ. 197,
affidavit need not state when debt became due; Greer v. Richardson
Drug Co., 1 Tex. Civ. 639, 20 S. W. 1128, permitting amendment to
support attachment where affidavit correct; Lia Force v. Schiff-Lewin
Co. (Tex. Civ.), 29 S. W. 78, variance between petition and affidavit
in attachment may be cured by amendment where the variance was
an evident miscalculation.
Distinguished in Marx v. Abramson, 53 Tex. 266, affidavit for at-
tachment cannot be amended.
Though Petition is Subject to Demurrer, if suit is followed upon
proper cause of action, sufficiently described so as to apprise defend-
ant of same, amendment relates back to date of commencement of
suit.
Approved in Bippetoe v. Dwyer, 1 Posey U. C. 506, reaffirming
rule; Kildare Lumber Co. v. Atlanta Bank, 91 Tex. 101, 41 8. W.
66, court may look to all the pleadings to support attachment; Texas
etc. Ky. V. Johnson (Tex. Civ.), 34 S. W. 188, in personal injury suit,
an amendment setting up negligence in employing servant who caused
the injuries relates back to original petition, where it set out facts
constituting the negligence; Boyd v. Beville, 91 Tex. 443, 44 S. W.
289, amendment not setting up different cause of action may support
attachment; Fort Worth etc. Mills Co. v. Milam, 1 Tex. Ap. Civ.
97, where suit permanently brought, amendment may set up new
cause of action.
51 Tex. 555-562, BAIBD y. TBIOE.
After Attachment .Lien is Fixed on Land, no such homestead rights
can be subsequently acquired as will defeat it.
903 NOTES ON TEXAS REPORTS. 61 Tex. 569-592
Approved in Brooks y. Ghathaniy 57 Tez. 34, Gage v. Neblett, 57
Tex. 374, Kempner v. Comer, 73 Tex. 203, 11 S. W. 196, Broches v.
Carroll, 2 Posej U. C. 145, and Grandjean v. Story, 2 Posey U. C.
525, 526, all reaffirming rule; Focke y. Blum, 82 Tex. 441, 17 S. W.
771, execution of writ of garnishment gives garnishee creditor para-
mount right to property as security; Skaggs v. Mulkey, 1 Posey U. C.
497, homestead right acquired subsequent to mortgage cannot avail as
against such mortgage.
Distinguished in Wallis v. Wendler, 27 Tex. Civ. 237, 65 S. W. 44,
defendant's vendor temporarily rented his homestead, and while so
rented, sold it to defendant; held, defendant's right of homestead
is superior to judgment lien against his vendor entered prior to de-
fendant's purchase.
Sals Und«r Execaticm Belates Back to I>at« of Levy, and overrides
rights subsequently acquired. Homestead rights subsequently ac-
quired form no exception to rule.
Approved in Rippetoe v. Dwyer, 1 Posey U. C. 508, purchaser pend-
ing suit takes subject to result of suit.
51 Tez. 569-^77, HOUSTON ETC. B. B. y. KNAPP.
Where, in a Oeneral Act of Legislature, the corporate existence of
a railroad in this state is recognized, the court will take judicial
knowledge of its existence.
Approved in United States v. Williams, 6 Mont. 389, 12 Pac. 855,
acts of the executive department of United States will be judicially
taken notice of.
Distinguished in Galveston etc. Ry. v. Smith, 81 Tex. 483, 17 S.
W. 134, distinguished where incorporation not alleged and no general
law recognizing it referred to.
Trespass may be Maintained by an Heir in possession, without ad-
ministration, for injury to land inherited and for damages to growing
crops thereon.
Approved in Colton v. Onderdonk, 69 Cal. 157, 10 Pac. 396, sole
devisee in possession may, pending administration, maintain action
for damages for trespass in individual name.
Distinguished in Rowland v. Murphy, 66 Tex. 639, 1 a W. 661, dis-
tinguished on facts.
Where Objection in Lower Oonrt to Byidence of Witness appears
affirmatively from bill of exceptions to have been based on specific
grounds not involving objection to witness giving opinion, that
ground of objection cannot be raised on appeal for first time.
Approved in Texas etc. Ry. v. McAllister, 59 Tex. 362, refusing to
consider action of lower court in excluding evidence, where no state-
ment of facts. See note, 88 Am. Dec. 119.
51 Tez. 67&-592, LEWIS y. ALEXANDER.
Instance of Facts Held Sufficient to act as an estoppel to prevent
silent member of partnership from denying authority of an agent to
bind the firm of which he was a member.
Approved in Garden v. Short (Tex. Civ.), 31 S. W. 248, where
husband and wife in procuring loan make affidavit designating other
property as their homestead, they are estopped from claiming home-
stead in the land so mortgaged.
A Contract Required by Statute of Frands to be in Writing, need
not in pleading be averred to be in writing, since that is a matter
of evidence.
61 Tex. 592-601 NOTES ON TEXAS REPOBTS. 904
Approved in Etter v. Dugan, 1 Posey U. C. 179, error to hold spe-
cial answer bad because contract set up not alleged to be in writ-
ing; Day V. Dalziel (Tex. Civ.), 32 S. W. 377, where it does not ap-
pear from the petition whether a contract was oral or written, de-
fense of statute of frauds, requiring it to be written, cannot be raised
by demurrer.
Defense of , Statute of LlxnltationB can only be raised on demurrer
where petition shows that length of time has elapsed which would
bar action.
Approved in Adams v. Tucker, 6 Colo. 397, 40 Pac. 784, statute
may be pleaded by demurrer where from petition action appears
barred.
Parties Engaged in Illegal Traffic during war may enforce contribu-
tion from partner appropriating more than his share of such illegal
gains.
Approved in Pfeuffer v. Maltby, 54 Tex. 462, 38 Am. Bep. 632,
dividing profits of illegal contract between partners; Patty v. City
Bank of Sherman, 15 Tex. Civ. 485, 41 S. W. 177, partner obtaining
more than his share of proceeds of illegal contract must account to
copartner; Manchester etc. B. B. v. Concord B. B., 66 N. H. 132, 49
Am. St. Bep. 590, 20 Atl. 386, 9 L. B. A. 689, profits of illegal contract
between rival companies to prevent competition may be apportioned.
See note, 117 Am. St. Bep. 502.
The Same Strictness of Pleading should not be required of plain-
tiff, who is not presumed to have had particular knowledge of agree-
ment, that would be required of a party to it.
Approved in Lyons-Thomas etc. Co. v. Perry etc. Mfg. Co., 88 Tex.
485, 27 S. W. 108, reaffirming rule.
Mere Knowledge That Money Iioaned might be used in illegal
enterprise does not defeat right to recover loan.
See note, 9 L. B. A. 657.
Miscellaneous. — Cited in Perrin v. Mallory Commission Co., 8 Ariz.
407, 76 Pac. 477, general demurrer may be amended by alleging mat-
ters in bar of action.
51 Tex, 592-601, HOXTSTON ETC. B. B. T. KNAPP.
Surviving Wife may Maintain Action for injuries to crops belong-
ing to her and grown on land occupied by her as a homestead.
Approved in Pennsylvania etc. Ins. Co. v. Wagley (Tex. Civ.), 36
S. W. 998, where all children of deceased are of age and living away
from home, surviving wife may maintain suit alone on fire insurance
policy on community homestead. See note, 59 L. B. A. 900, 902.
Nonjoinder' of Cotenants by Plaintiff in suit can only be taken
advantage of by defendant by plea in abatement or by way of appor-
tionment of damages.
Approved in Waggoner v. Snody, 98 Tex. 516, 85 S. W. 1135, joint
owner of personalty not entitled to exclusive possession may recover
only his proportion of damages for its interest; Gillum v. St. Louis
etc. By., 4 Tex. Civ. 624, 23 S. W. 717, objection to nonjoinder of co-
tenant can only be taken by plea in abatement, or by way of ap-
portionment of damages on trial; Alamo etc. Ins. Co. v. Schmitt, 10
Tex. Civ. 553, 30 S. W. 834, objection to nonjoinder of parties not
made below will not be considered on appeal.
Distinguished in Bowland v. Murphy, 66 Tex. 539, 1 S. W. 661. in
action by merchant for destruction of storehouse and injury to stock.
905 NOTES ON TEXAS REPOBTS. 51 Tex. 601-617
-where lioas« belonged to community estate^ failure to file plea in
abatement to defect of parties did not deprive defendant of right
to restrict recovery to injury to plaintiff's own estate.
Byidence of Witness as to Market Value of Land is admissible, al-
though it be a matter of opinion.
Approved in Port Worth etc. Ry. v. Hogsett, 67 Tex. 687, 4 S. W.
366, admitting testimony of market value of goods, though mere
opinion of witness.
Judgment of the laower Court wi}l not be Beversed where instruc-
tion erroneous, where no apparent injury done, and verdict supported
by evidence.
Approved in Fort Worth etc. Ry. v. Scott, 2 Tex. Ap. Civ. 138, sus-
taining judgment where no injury done by erroneous instruction.
51 Tex. 601-^5, liOOEHABT T. LYTLE.
Whore a Motion to Betax Costs is Dismissed for want of prosecu-
tion, it is not the duty of the court to examine the several items to
see whether in fact they are correct.
Approved in Missouri etc. Ry. v. Crane (Tex. Civ.), 32 S. W. 13, ap-
pellate court will not consider retaxation of costs until action thereon
has been taken in low^r court; Morgan v. North Texas Nat. Bank
(Tex. Civ.), 34 S. W. 138, costs as taxed by clerk are prima facie
correct and his action should be questioned by motion to retax.
51 Tex. 606-609, WACO NAT. BANE y. BOQEBa
Under Laws in Force in 1876 a national bank was not liable for
state and county taxes for that year, assessed on stock in bank not
owned by it, but owned by individuals.
See notes, 96 Am. Dec. 291; 69 Am. St. Rep. 45; 45 L. R. A. 741;
13 L. R. A. 616.
Injunction will not Ue to Bestrain Sale of Beal Estate levied upon
to satisfy tax illegally assessed.
Approved in Court v. O'Connor, 65 Tex. 340, reaffirming rule under
similar facts; Dean y. Kopperl, 1 Tex. Ap. Civ. 410, refusing injunc-
tion where assessment of tax legal; Schmidt v. Galveston etc. Ry.
(Tex. Civ.), 24 S. W. 549, injunction will lie to restrain sale of prop-
erty to satisfy an illegally assessed tax; hence bridge owned by
railroad is properly returned as so much mileage of railroad.
51 Tex. 609-617, NOBBIS y. HUNT.
A Deed will be Bendered Void for Uncertainty where ambiguity in
description is patent.
Approved in Cammack y. Prather (Tex. Civ.), 74 S. W. 355, con-
tract for sale of land described as ''4 acres in A county out of Will-
iams' league beginning 129.72 varas north from point where south
line of N. 100 acre tract intersects west line of L survey," is insuffi-
cient; Douthit V. Robinson, 55 Tex. 74, holding deed void for patent
ambiguity; Preiffer v. Lindsay, 66 Tex. 125, 1 S. W. 265, reaffirming
rule where description similar to leading case; Bassett v. Sherrod, 13
Tex. Civ. 333, 35 S. W. 316, reaffirming rule under deed where de-
scription similar to one in leading case; Myers v. Maverick (Tex.
Civ.), 27 S. W. 952, land must be described by terms of deed or give
data from which the description may be found and made certain;
Curdy v. Stafford (Tex. Civ.), 27 S. W. 824, extrinsic evidence cannot
be resorted to in order to explain a patent ambiguity in a deed and
51 Tex. 609-617 NOTES ON TEXAS BEPOBTS. 906
especially in judicial sale in bankruptcy proceedings; Crumbley ▼.
Busse, U Tex. Civ. 323, 32 S. W. 441, setting aside deed where de-
scription does not identify land; Pierson v. Sanger (Tex. Civ.), 51 S.
W. 870, where description is certain number of acres out of several
designated surveys, with reference to grantor's deeds, it is insufficient
where deeds to grantor described the surveys as containing larger
number of acres than designated; Stipe v. Shirley, 27 Tex. Civ. 101,
64 S. W. 1014, deed describing land only as being in county, in-
sufficient. See notes, 76 Am. Dec. 57, 58.
Distinguished in Knowles v. Torbitt, 53 Tex. 558, distinguished
where ambiguity was not apparent upon face of instrument.
A Latent but not a Patent Ambiguity in a Deed in the description
of land may be aided by parol evidence.
Approved in Buckner v. Vancleave, 34 Tex. Civ. 313, 78 S. W. 542,
applying rule to sheriff's deed; Montgomery v. Carlton, 56 Tex. 433,
admitting parol evidence in aid of description in deed. See note, 6 L.
B. A. 42.
Description of Land Should be so Definite and certain upon face
of instrument itself, or by other writing referred to, that land can be
identified with reasonable certainty.
Approved in Catlett v. Starr, 70 Tex. 488, 7 S. W. 846, reaffirming
rule; Penn v. Texas etc. Lumber Co., 36 Tex. Civ. 184, 79 S. W. 844,
memorandum of contract for sale of standing timber, whereby one
agreed to convey certain number of acres "under consideration in T.
county," is insufficient; Boyd v. Boyd, 34 Tex. Civ. 58, 78 S. W. 40,
on issue as to whether deed absolute intended to create trust in favor
of grantor, parol inadmissible where deed failed to give description
whereby lands might be identified; Boyce v. Hornberger, 29 Tex. Civ.
340, 68 S. W. 703, sheriff's deed conveying all defendant's interest in
two thousand three hundred acres forming part of Page survey, ex-
trinsic evidence showing defendant owned at time undivided half
interest in two thousand eight hundred and forty -nine acres of survey,
is insufficient; Edrington v. Hermann (Tex. Civ.), 74 S. W. 938,
sheriff's deed describing land as fourteen hundred acres in northeast
comer of certain league is insufficient, where execution defendant
owned no land in extreme corner but owned land which would have
been included in square survey of fourteen hundred acres in north-
east corner; Bogers v. McLaren, 53 Tex. 426, and Steinbeck v. Stone,
53 Tex. 386, both holding deed describing property by reference to
record sufficient; Bowles v. Beal, 60 Tex. 324, description in deed
referring to deed in another county sufficient; Allday v. Whitaker,
66 Tex. 671, 1 S. W. 795, description ''close to and adjoining the said
Wayne station" insufficient in deed; Coker v. Boberts, 71 Tex. 602,
9 S. W. 667, parol evidence inadmissible to aid patent ambiguity;
Overand v. Menczer, 83 Tex. 128, 18 S. W. 303, sustaining deed where
land can be identified; Smith v. Crosby, 86 Tex. 19, 40 Am. St. Bep.
821, 23 S. W. 11, description in deed by reference to record sufficient;
Munnink v. Jung, 3 Tex. Civ. 405, 22 S. W. 297, setting aside deed
where description did not identify land; Peterson v. Ward, 5 Tex.
Civ. 211, 23 S. W. 638, eorrecting description in deed by reference
to record referred to; Blackburn v. McDonald, 1 Posey IJ. C. 359,
deed for less amount than whole will convey whole tract where deed
shows such intention; Englehardt v. Batla (Tex. Civ.), 31 S. W. 324,
lease of "our entire homestead place, in Colorado county, Texas,
about twenty miles south from Columbus, containing about three
907 NOTES ON TEXAS BEPOBTS. 61 Tex. 617-650
hundred acres, one hundred of which is in cultivation/' is sufficient
description; Focke v. Garcia (Tex. Civ.), 41 S. W. 187, "1,135 acres
in upper San Diego tract, Duval county, Texas (original grantee,
Julian Flores)," is sufficient to pass title by execution sale; Cox v.
Hart, 145 U. S. 388, 12 Sup. Ot. Bep. 967, 36 L. 745, description re-
ferring to record sufficient.
Distinguished in Grabtree v. Whiteselle, 65 Tex. 112, where part
of tract conveyed is by certain name, the boundaries of which are
known.
Less Indulgence is Shown in Favor of Description in deed under
forced sale than in voluntary sale between parties.
Approved in Beze v. Calvert, 2 Tex. Civ. 209, 20 S. W. 1133, Smith
V. Crosby, 4 Tex. Civ. 253, 22 8. W. 1043, and Mitchell v. Ireland,
54 Tex. 306, all reaffirming rule.
Limited in Hermann v. Likens, 90 Tex. 453, 39 S. W. 284, what is
certain description in voluntary conveyance is certain in involuntary
one.
51 Tez. 617-621, BOSS ▼. EKOIiAND.
In Proceeding by Heirs for Partition of Father's Estate, their
claim for half rents appropriated by father after mojther's death,
and for half proceeds of community property sold by him and
appropriated, must, under statute, be established like other claims
against the estate.
Distinguished in Schmitt v. Jacques, 26 Tex. Civ. 131, 62 S. W.
959, where claim sued on need not, under statute, be presented for
aUowance or rejection.
51 Tex. 621>635, STATE TBEASUBEB ▼. WYGAUi.
Where Estate of Deceased Person, in treasury of state, has been
sued for and recovered by one set of heirs,. another set, though with-
out notice of judgment, could not maintain suit to recover from state
until former judgment set aside.
Approved in Piatt v. Vermillion, 99 Fed. 361, one party cannot be
privy to judgment unless his title to property in question derived
subsequent to or under parties bound thereby.
Suit by Heirs to Becoyer Assets of Estate, deposited with state
treasurer, is in the nature of proceeding in rem, in which parties
claiming estate must properly assert their rights.
Approved in Dodson v. Wortham, 18 Tex. Civ. 667, 45 8. W. 859,
appeal from judgment in probate court, in suit by heirs against state
treasurer for recovery of assets of estate, lies to district court.
51 Tex. 635-650, COKNOLLY y. HAMMOND.
Sale by Trustee, Who Becomes Indirectly the Purchaser of the trust
property at such sale, is not absolutely void, but prima facie void-
able.
Approved in Anderson v. Stockdale, 62 Tex. 62, Hickman v.
Stewart, 69 Tex. 258,' 5 S. W. 835, and Boeger v. Langenberg, 42 Mo.
Ap. 13, all reaffirming rule; Connoly v. Hammond, 58 Tex. 16, re-
affirming rule on second appeal. See note, 19 Am. St. Bep. 294.
Distinguished in Palmer v. Texas Lumber Co., 3 Tex. Civ. 474,
23 S. W. 40, where sale made by attorney in fact, under naked power
to sell, is void where consideration inures to himself alone.
51 Tez. 635-^50 NOTES ON TEXAS BEPOBTS. 908
Party Seeking Equitable Belief Against Fraud or Mistake is charge-
able with laches from time it was, or ought to have been, discovered.
Approved in Williamson v. Wright, 1 Posey U. 0. 718| reaffirming
rule; Tevis v. Armstrong, 71 Tex. 65, 9 S. W. 138, proceedings brought
after twelve years to correct misdescription in decree too late. See
note, 63 Am. Sti Bep. 475.
Distinguished in Murphy v. Welder, 58 Tez. 241, where party had
legal instead of equitable title.
In Trespaaa to Try Title, plaintiff, who acquired different title
from that relied on in his first suit, before second suit, may assert
his rights under second title in second suit the same as if it were
in stranger's hands.
Approved in Connoly v. Hammond, 58 Tez. 21, reaffirming rule on
second appeal; Hammond v. Connolly, 63 Tez. 63, reaffirming rule on
third appeal.
When, in Trespass to Try Title, a deed has been introduced by
defendant devesting an original grantee of all title, under whom
both claim, introduction of deed of subsequent date by heirs of such
grantee cannot avail.
Approved in Connoly v. Hammond, 58 Tez. 17, reaffirming rule on
second appeal.
Sales by Tmstee, Who Indirectly Becomes Porchaser, are valid
unless set aside or repudiated by cestui que trust, who must assert
his rights within reasonable time.
Approved in Nabours v. McCord, 97 Tez. 534, 80 S. W. 599, where
trustee guaranteed resale by intending purchaser of part of property
at price of sale and furnished money to carry out agreement in name
of third party, sale voidable by beneficiaries irrespective of good
faith; Bippetoe v. Dwyer, 1 Posey U. C. 506, setting aside sheriff's
sale where claim asserted by party by amendment siz years after
suit commenced; Huggins Candy etc. Co. v. People's Ins. Co., 41 Mo.
Ap. 544, privilege of avoiding contracts of local agents is personal
to parties sought to be bound.
Miscellaneous. — Connoly v. Hammond, 58 Tez. 14, referring to
former appeal in stating history of litigation.
NOTES
ON THE
TEXAS EEPOKTS
GASES IN 52 TEXAS.
52 Tez. 4-13, DEIiESPINE y. OABIPBEIiL.
A Judgment Foreclosing One of Two Notes secured hj mortgage,
where owner of other not party to suit, does not affect rights of
latter.
See notes, 73 Am. St. Rep. 561; 13 L. B. A. 298.
Where Separate Suits Brought hy Holders of Notes secured hj same
without regard to rights of others, neither can exclusively appro-
priate the security.
Approved in Penzel r. Brookmire, 51 Ark. 109, 14 Am. St. Bep.
24, 10 S. W. 15, and Nashville Trust Co. ▼. Smythe, 94 Tenn. 524,
45 Am. St. Bep. 754, 29 S. W. 906, 27 L. B. A. 663, following rule;
Wooters v. Hollingsworth, 58 Tez. 375, assignment of one of several
purchase money notes before others does not give priority of pay-
ment; Cason V. Connor, 83 Tex. 30, 18 S. W. 669, intervening junior
mortgage in fort^'closure not entitled to equal rights in distribution
of proceeds by virtue of payment of part of plaintiff's claim. See
note, 73 Am. St. Bep. 562.
Distinguished in Douglass v. Blount, 22 Tez. Civ. 495, 496, 55 S.
W. 527, 528, purchase money note assigned by vendor takes priority
over others.
A Mortgagee has Oonstmctlye Notice of adverse liens indicated in
his claim of title.
See note, 82 Am. Dec. 613.
Execution Porchaser Who Pays Bid by crediting judgment of fore-
closure owned by ward is not a purchaser for value.
Approved in McKamey v. Thorp, 61 Tez. 652, holding creditor buy-
ing at own sale and crediting bid upon the judgment is not pur-
chaser for value; Brown Hardware Co. v. Marwitz, 10 Tez. Civ.
460, 32 S. W. 79, applying principle to execution sale of wife's
property for husband's debt. See notes, 86 Am. Dec. 669; 21' L. B.
A. 33.
Distinguished in McLane v. Sullivan, 29 Tex. Civ. 251, 69 S. W.
194, surety purchasing at foreclosure land of one indebted to his
principal may be innocent purchaser for value though money paid
by him is credited on judgment against him and his principaL
(909)
52 Tex. 13-28 NOTES ON TEXAS REPORTS. 910
Tlie Fact That One of Two Kotos secured by mortgage matures
first only entitles assignee to equality of payment from proceeds of
security.
Approved in Salmon v. Downs, 56 Tex. 247, vendor holding lien
for purchase price and assigning one of several purchase money notes
entitled to equality in proceeds of sale of land with holder of note.
See note, 24 L. R. A. 800.
A Mortgagee, as Against a Subsequent Porchaaer with notice, may
obtain both a personal judgment against mortgagor and a decree of
foreclosure.
Approved in Crow v. Red River Co. Bank, 52 Tex. 367, holding
mortgagee of personalty to secure debt of district court jurisdic-
tional value may sue therein to protect interests against creditors
attaching in county court; Gunn v. Miller (Tex. Civ.), 26 S. W. 279,
a chattel mortgagee can obtain a personal judgment and a decree
of foreclosure against the mortgagor, a subsequent purchaser with
notice.
52 Tez. 13-18, TYLEB TAP. B. K. y. DBI8C0L.
Beyised Statutes, Article 461, does not subject railroads to
mechanics' liens.
Approved in National Bank t. Gulf etc. By. Co., 95 Tex. 182, 66
S. W. 204, Rev. Stats., art. 3312, does not give lien to workmen em-
ployed in construction of shops situated on land of railroad but not
on right of way; Pennsylvania etc. Go. v. Potts Salt etc. Co., 63 Fed.
14, holding Michigan acts of 1885, page 293, section 1, does not give
mechanic's lien on railroad. See note, 78 Am. Dec. 698.
The Constitution Does not Impose Mechanic's Lien on railroad for
work and labor, nor does it require the legislature to do so.
Approved in Houston etc. R. R. v. Shirley, 54 Tex. 144, holding
constitution of 1866 did not prohibit mortgage of railroad franchise
aiid sale under foreclosure; Aiken v. Kennedy, 1 Tex. Ap. Civ. 771,
arguendo. See note, 8 L. R. A. 705.
52 Tez. 19-28, HOUSTON ETC. B. B. y. KIXOK.
Under Beyised Statutes, article 4232, the mere omission to ring
the bell at a crossing does not of itself render the company liable.
Approved in I. k G. N. R. R. v. Jordan, 1 Tex. Ap. Civ. 497, fol-
lowing rule; Central etc. Ry. v. Nycum (Tex. Civ.), 34 S. W. 460,
mere failure to give signals will not render a eompany liable. See
note, 9 L. R. A. (n. s.) 340, 369.
The Failure to Bing Bell is Negligence, and if by reason thereof
deceased was not aware of train's approach, and the injury resulting
therefrom was the proximate cause, defendant is liable.
Approved in Galveston etc. Ry. v. Duelm (Tex. Civ.), 23 S. "W.
600, Texas etc. Ry. v. Laverty, 4 Tex. Civ. 76, 22 S. W. 1047, both
following rule; Gulf etc. Ry. Co. v. Holt, 30 Tex. Civ. 334, 70 S. W.
593, violation of city ordinance requiring street-car motorman to
ring gong and stop cars five feet from intersecting tracks is negli-
gence per se; Snow v. Price, 1 Tex. Ap. Civ. 784, admitting expert
testimony to rebut presumption of negligence; Texas etc. Ry. v.
Brown, 11 Tex. Civ. 509, 33 S. W. 149, failure to ring bell at cross-
ing as required by law is . negligence per se; Missouri etc. Ry. v.
Cardena, 22 Tex. Civ. 302, 54 S. W. 3^3, holding erroneous unquali-
fied charge that running at high speed and failure to ring bell are
911 NOTES ON TEXAS EEPORTS. 52 Tex. 60-62
negligence; Florida etc. R. R. v. Williams, 37 Fla. 422, 20 So. 563,
holding negligence must be proximate cause of injury.
IiiBtruction WUcli in Tenns ABsames the Existence of a contro-
verted fact as the basis is erroneous.
Approved in Houston etc. Rj. t. Richards, 20 Tex. Civ. 207, 49
S. W. 690, arguendo.
The Oonrt Must Olye Definite InstrnctionB as to measure of
damages to which the plaintiff is entitled under the issues and
proofs.
Approved in Texas etc. Ry. Co. v. Avery (Tex. Civ.), 33 S. W.
705, Galveston etc. Ry. v. Worthy (Tex, Civ.), 27 8. W. 428, Texas
Trunk R. R. v. Elam, 1 Tex. Ap. Civ. 208, and Texas etc. Ry. v.
Bcrchfleld, 12 Tex. Civ. 148, 33 S. W. 1024, all following rule;
Houston etc. Ry. v. Cowser, 57 Tex. 304, the actual pecuniary in-
jury to parent by wrongful death of son not limited to period of
son's minority; Houston etc. Ry. v. Sciacca, 80 Tex. 355, 16 S. W.
33, holding in action for damages by parents for death of son jury
should apportion damages between plaintiffs; Galveston etc. Ry. v.
Worthy, 87 Tex. 465, 466, 29 S. W. 376, 377, holding erroneous in-
struction that jury may find damages proportionate to injury with-
out confining right of recovery to actual compensatory damages;
Brunswig v. White, 70 Tex. 509, 8 S. W. 88, arguendo.
Under the Oommon Law, a parent can only recover for injury to
child damages based on earning capacity during minority.
Approved in Missouri etc. Ry. v. Lee, 70 Tex. 503, 7 S. W. 860,
following rule; Houston etc. Ry. v. Cowser, 57 Tex. 300, holding
petition showing son over twenty-one not demurrable; Gainesville
etc. Ry. V. Lacy, 86 Tex. 247, 24 S. W. 271, applying principle to
action for injuries to wife; San Antonio etc. Co. v. White' (Tex.
Civ.), 60 S. W. 324, jury can estimate damage to parent as to con-
tributions which he had reasonable expectation of receiving from
son after majority by evidence of strength, willingness, etc., without
statemenit of definite amount.
Limited in Texas etc. Ry. Co. t. Harby, 28 Tex. Civ. 28, 67 S. W.
543, where in action by parent for death of minor child court charged
that damages would be present Talue of pecuniary assistance parent
would have received if child had not been killed, not error to refuse
charge limiting recovery to minority of child.
InstractionB on Oontribntory Negligence should be fully explained,
and should not be, in terms, general.
Approved in Buffalo etc. Co. v. Milby, 63 Tex. 495, holding where
charge is appropriate to one phase of evidence, party cannot com-
plain for failure to charge on other phase not requested.
52 Tex. 60-62, HOWASD y. WAL80H.
Filing of Certificate for Affirmance does not estop appellee from
attacking sufficiency of appeal bond after transcript filed.
Approved in Territory of Hawaii v. Cotton Bros., 17 Haw. 387,
failure to object on seventh day that no bond on new trial filed,
which day was day noticed for presentment of motion for new trial,
is no waiver to objection on eleventh day after verdict^ which was
day to which motion for new trial postponed.
I
52 Tex. 63-112 NOTES ON TEXAS BEPOBTS. 912
62 Tex. 63-73, HAMMOND y. HOUGH.
An Agent Does not Destroy His Authority by reciting another
document as his authority.
Approved in Hammond v. Coursey, 2 Posey U. 0. 29, following rule.
Where Deed Does not Show on Its Face that it was made by
attorney therein named, it is proper to show identity of attorney
with attorney named in power offered as authority to make the deed.
Approved in Connoly v. Hammond, 58 Tex. 14, 19, following rule.
52 Tez. 74-83, BUTTLAB y. DAVIS.
An Independent Execator appealing from district court for the
benefit of the ^estate need not give an appeal bpnd.
Approved in White v. Smith, 2 Tex. Ap. Civ. 270, Masterton v.
Conrad, 2 Tex. Ap. Civ. 661, both following rule; Kerr v. Lowenstein,
65 Neb. 50, 90 N. W. 933, administrator appealing from judgment
need not give stay bond; Schonfield v. Turner (Tex. Sup.), 6 S. W.
629, 630, and Tutt v. Morgan, 18 Tex. Civ. 628, 42 8. W. 578, both
applying principle to guardian ad litem; Cox v. Paschal (Tex. Civ.),
54 S. W. 775, administrator appointed by a county court, appealing
from a judgment of the district court denying his application to be
appointed administrator, must file an appeal bond in appealing from
the judgment.
The Supreme Court cannot Enter Judgment on an appeal bond exe-
cuted by an executor appealing for the benefit of the estate.
Approved in Wakefield v. King, 2 Tex. Ap. Civ. 612, upon question
as to method of trying justice's court jurisdiction on collateral attack.
62 Tez. 84-92, BEED y. TIMMIN8.
Ouardian is not Chargeable with compound interest on trust fund
in his hands and of which he had benefit when there was nothing
from which it was inferable that he realized more than ordinary
interest.
See note, 29 L. R. A. 631.
Allowance of Compound Interest against guardian is for the court
and not for the jury to determine.
See note, 29 L. R. A. 647.
Compound Interest Is Allowable in stating guardian's account not
for purpose of punishment but to reach his profits.
See note, 29 L. R. A. 624.
52 Tez. 92-112, FRENCH y. STRTTMBERG.
As Against Subsequent Purchasers Without Notice, taking property
in wife's name raises no presumption that it is separate property.
Approved in Wallace v. Campbell, 54 Tex. 89, following rule;
Montgomery v. Noyes, 73 Tex. 209, 11 S. W. 139, holding recital of
resulting trust in deed to husband and wife is notice of wife's sep-
arate interest; Kilgore v. Graves, 2 Tex. Ap. Civ. 360, holding pos-
session under deed not notice of separate interest of wife. See notes,
86 Am. Dec. 643; 96 Am. Dec. 423; 126 Am. St. Rep. 124.
A Bona Fide Purchaser for Husband after wife's death need not
inquire as to equities between husband and wife where deed was in
wife's name.
Approved in Parker v. Coop, 60 Tex. 114, following rule; Sanborn
V. Schuler, 3 Tex. Civ. 633, 22 S. W. 120, where property bought
during coverture with husband's separate funds is sold by widow.
913 NOTES ON TEXAS REPORTS. 52 Tex. 112-129
bona fide purchaser takes title; Sinsheimer y. Kahn, 6 Tex. Civ. 146,
24 S. W. 534, holding bona fide purchaser of wife's separate property
from husband gets title as against wife. See notes, 86 Am. Dec. 638,
€39; 96 Am. Dec. 424.
Section 14, Article 12, Constitatlon of 1869, simply extended the
time within which persons under disability could sue.
Approved in Trammell v. Neal, 1 Posey U. C. 56, and Roemilie ▼.
Leeper, 2 Posey U. G. 536, both following rule; Peak v. Swindle,
68 Tex. 252, 4 S. W. 482, holding constitutional suspension of limi-
tations applies to all cases in which bar not complete before De-
cember 3, 1869.
Under Section 14, Article 12, Constitation of 1859, a married
woman could not tack the disability of coverture to that of infancy.
Approved in Grigsby v. Peak, 57 Tex. 147, 148, following rule.
52 Tex. 112-126, TEXAS ETC. B. B. y. CASEY.
xnilesB the Error is Clear, the appellate court will not reverse a
judgment upon a verdict approved below where the evidence is con-
flicting.
Approved in H. & T. 0. Ry. v. Marcelles, 59 Tex. 338, Galveston
etc. Ry. V. Porfert, 72 Tex. 353, 10 S. W. 213, 3 L. R. A. 769, both
following rule.
Damages for Wrongful Ejection of Passenger may include injury
to feelings and physical pain and anguish caused by miscarriage
resulting from injury. See note, 32 L. R. A. 143.
Under Paschal's Digest, Article 4892, a conductor cannot eject a
passenger at a water-tank, as such is not a "usual stopping place."
Approved in St. L. I. M. & S. Ry. v. Branch, 45 Ark. 528, apply-
ing principle under Mansfield's Digest, section 5474. See note, 26
L, R. A. 132.
Where Error in Charge is not called to the court's attention, the
judgment will not be reversed on appeal.
Approved in Hawkins v. Cramer, 63 Tex. 102, applying principle
to suit to declare deed fraudulent.
Failure of Jnry to Discriminate as to character of damages in
verdict is not ground for reversal where point is first raised in
supreme court.
Approved in Brooke v. Clark, 57 Tex. 109, following rule.
Miscellaneous. — Cited in Smith v. Conner, 98 Tex. 436, 84 S. W.
816.
52 Tex. 125-129, BONNEB y. WIGGINS.
As Against a Mere Trespasser, possession is sufficient to support
trespass to try title, but not as against the rightful owner.
Approved in Texarkana etc. Ry. Co. v. Texas etc. R. Co., 28 Tex.
Civ. 554, 67 S. W. 527, where railroad obtained permit to construct
spur track along public street, which track constructed jointly with
lumber company, it could enjoin latter for pulling up track; Heironi-
mns V. Duncan, 11 Tex. Civ. 613, 33 S. W. 289, holding forcible entry
is entry by anyone on premises without consent of actual possessor.
See note, 60 Am. Dec. 216.
The Rightful Owner of Land is the owner of improvements made
thereon without his consent.
Approved in Norton v. Davis, 13 Tex. Civ. 94, 35 S. W. 183, hold-
ing defendant recovering value of improvements and pending appeal
2 Tex. Notes— 58
62 Tex. 145-165 NOTES ON TEXAS REPOBTS. 916
Miscellaneous. — ^Franco -Texan Land Co. v. McCormick (Tex. Cir.),
23 S. W. 122, holding where one has purchased land from the presi-
dent of a company, who has exceeded his powers in selling, ia en-
titled to an equitable adjustment.
52 Tez. 145-151, BIDDLE y. TUBNEB.
Issuance of Ezecutioii on Doimant Judgment not ground for col-
lateral attack on execution sale by stranger.
Approved in Meader Co. ▼. Aringdale, 58 Tex. 450, holding only
defects apparent on face and on record of motion can be reached
by motion to quash execution.
52 Tez. 151-160, OAMPVELL T. ELLIOTT.
Where Wife most Join in ConYoyance of Homestead, the husband
is not estopped from asserting homestead rights against his vendee.
Approved in Mexia v. Lewis, 3 Tex. Civ. 118, 21 8. W. 1018, hold-
ing wife not bound by judgment affecting homestead when she was
not party to suit; Odum v. Menafee, 11 Tex. Civ. 121, 33 S. W. 131,
execution sale under foreclosure against husband alone, where both
join in mortgage, is void; Houssels v. Taylor, 24 Tex. Civ. 75, 58 8.
W. 191, arguendo.
Distinguished in dissenting opinion in Mexia v. Lewis, 3 Tex. Civ.
119, 21 8. W. 1018, majority holding wife not bound by judgment
against husband affecting homestead where she was not party to
suit.
Under the Constitation of 1875 no lien on the homestead is valid
except for purchase money, whether executed by husband alone or
jointly with wife.
Approved in Madden v. Madden, 79 Tex. 601, 15 8. W. 483, hold-
ing husband cannot mortgage homestead to wife; Stallings v. HuUum,
89 Tex. 434, 35 8. W. 3, husband's conveyance of homestead without
joining wife is void as to her interest; San Antonio etc. Assn. v.
Stewart, 27 Tex. Civ. 304, 65 8. W. 667, husband cannot extend time
of payment of debt created by him and his wife on a homestead.
See note, 67 Am. Dec. 612.
Under Constitution of 1845 there could not be a forced sale of the
homestead.
Approved in Thompson v. Jones, 77 Tex. 628, 14 8. W. 222, fol-
lowing rule. See note, 55 Am. Dec. 771.
The Vendee of the Purchaser of Homestead at void foreclosure is
not entitled to subrogation to rights of purchaser at foreclosure to
the extent of bid.
Approved in Thompson t. Jones, 60 Tex. 95, holding foreclosure
sale of homestead when wife not a party does not preclude recovery
from purchaser by her heirs.
52 Tez. 161-165, HOBN ▼. ABNOLD.
The Widow and Children to Whom a Homestead is set apart under
probate law of 1848 take estate in fee free from all liens except
vendors' and mechanics'.
Approved in Bainey v. Chambers, 56 Tex. 20, holding title to
community homestead vests in widow where there are no minor
children; Putnam v. Young, 57 Tex. 465, holding heirs of first widow
entitled to mother's interest in homestead as against second wife;
Watson V. Bainey, 69 Tex. 322, 6 8. W. 841^ holding homestead not
917 NOTES ON TEXAS EBPOETS. 62 Tex. 166-186
liable for community debts contracted by husband during bis life;
Lacy ▼. Lockett, 82 Tex. 193, 17 8. W. 917, holding married daughter
on mother's death takes homestead free from claim of dead father's
creditors; Trammell v. Neal, 1 Posey U. C. 54, holding sale of home-
stead by mother's administrator passes no title as against unmarried
daughter living with mother; Gaines ▼. Gaines, 4 Tex. Civ. 410, 23
8. W. 466, holding child takes mother's share of homestead in prefer-
ence to children of father by former marriage; Miller v. Finegan,
26 Fla. 38, 7 So. 142, 6 L. B. A. 813, applying rule under constitution of
1868 to adult «on and adult grandson; Zwernemann ▼. Van Rosenberg,
76 Tex. 525, 13 S. W. 486, and Munzenberger ▼. Bbehme, 2 Posey
U. G. 390, both arguendo. See note, 56 L. R. A. 59.
Distinguished in dissenting opinion in Hoffman ▼. Hoffman, 79 Tex.
198, 15 8. W. 472, majority foUowing rule.
The Widow and Children to whom a probate homestead is given
take free from claims of adult children and beneficiaries not entitled
to share it.
Approved in Krueger v. Wolf, 12 Tex. Civ. 177, 33 S. W. 668,.
holding allowance to unmarried daughter in lieu of homestead ia
free of liens. See notes, 4 L. B. A. (n. s.) 794; 56 L. B. A. 53, 56, 66.
62 Tex. 166-170, OAVIT y. ABOHEB. ^
Certified Copy of Deed purporting to be a deed from A, by B,
his attorney in fact, when authenticated for record by the affidavit
of witness reciting that he saw B sign it by his attorney. A, was
properly excluded as copy of lost instrument.
Approved in. Uhl v, Musquez, 1 Posey U. G. 658, certified copy of
county record of grant not admissible where its registration not
authorized.
62 TeoL 170^178, ESTELL y. COLE.
Answer in Tre^aafl to Try Title alleging that common vendor had
sold to defendant, who made improvements, and that contract con-
tained no forfeiture clause, is sufficient to prevent forfeiture.
Approved in Estell v. Gole, 62 Tex. 701, in statement of facts;
Walker v. Gole, 89 Tex. 326, 34 S. W. 714, arguendo. See note. 70
Am. Dec. 341.
Where an Insolvent Vendor fines Vendee for purchase money, latter
may make claimant of outstanding title a party.
Approved in Looney v. Simpson (Tex. Giv.), 25 S. W. 477, holder
of an adverse claim can be made a party to a foreclosure; Talkin
V. Anderson (Tex. Sup.), 19 S. W. 355, a purchaser from a vendee
having an undivided interest in land cannot take title to one-half
of the land described by metes and bounds; Gulbertson v. Blanchard,
79 Tex. 494, 15 S. W. 702, arguendo.
Distinguished in Harris v. Gatlin, 53 Tex. 8, upon facts; Hollo-
way V. Blum, 60 Tex. 629, sustaining plea to jurisdiction by party
contracting with member of firm sued in another county.
Miscellaneous.— Walker v. Gole (Tex. Giv.), 27 S. W. 883, refer-
ring to former appeal in stating history of the case.
62 Tex. 178-186, HOUSTON ETC. B. B. y. SBOTH.
If the Person Injured proximately contributed to the injury, so
that but for his fault the injury would not have happened, except
where the other party does not use proper care after knowledge of
the former's danger, there is contributory negligence.
62 Tex. 178-186 . NOTES ON TEXAS REPORTS. 918
Approved in I. ft G. N. B. B. ▼. Jordan, 1 Tex. Ap. Civ. 498, fol-
lowing rule; Texas etc. E. Co. v. Fields, 32 Tex. Civ. 416, 74 S. W.
932, where brakeman on construction train ordered to remain around
curve to flag approaching trains but did not do so, and forty minutes
later was run over by backing train, he was contributorily negligent;
H. ft T. C. By. V. Sympkins, 54 Tex. 623, 38 Am. Rep. 636, holding
drunkenness is contributory negligence; H. ft T. C. By. v. Bichards,
59 Tex. 377, applying principle where ex-section -hand walking on
track was struck by train; Missouri Pac. By. v. Evans, 71 Tex. 368,
9 S. W. 328, 1 L. B. A. 476, holding intoxication does not excuse
contributory negligence; Smith v. Norfolk etc. B. B., 114 N. C. 740,
19 S. E. 866, 25 L. B. A. 287, refusing recovery where intoxicated
man killed, though he could have been seen if proper lookout kept.
See note, 38 Am. Bep. 638.
The Court Is not Justified in assuming plaintiff's negligence was
slight where he walked along track instead of in road and had been
drinking, and whistle sounded from two hundred yards to within
twenty feet of place of injury.
See note, 40 L. B. A. 133, 145.
If After the Impending Danger Became Known to the defendant
it failed to use such ordinary care as would have prevented the
injury, it is liable.
Approved in International etc. By. ▼. McDonald, 75 Tex. 47, 12
S. W. 862, Houston etc. B. B. v. Wallace (Tex. Civ.), 53 S. W. 78,
Davis V. Wheeler (Tex. Civ.), 23 S. W. 435, and Houston etc. By.
V. Smith, 77 Tex. 181, 13 S. W. 973, all following rule; I. ft G. N.
By. V. Smith, 62 Tex. 255, holding company liable when person known
to be deaf run over while walking on track; I. ft G. N. B. B. v.
Cocke, 64 Tex. 158, holding company using ordinary care not liable
for injuries to cattle straying on track; Gulf etc. By. v. Keith, 74
Tex. 290, 11 S. W. 1118, upholding charge on negligence of railroad
for injuries at crossing; Texas etc. By. v. Bobinson, 4 Tex. Civ. 125,
23 S. W. 435, upholding refusal to instruct upon issues of contribu-
tory negligence and intoxication; Gulf etc. By. v. Lankford, 9 Tex.
Civ. 596, 597, 29 S. W. 935, holding company liable when plaintiff's
horses became unmanageable while driving alongside of track; Inter-
national etc. B. B. V. Tabor, 12 Tex. Civ. 290, 33 S. W. 896, applying
principle where boy climbed between cars obstructing path; Houston
etc. By. V. Wallace, 21 Tex. Civ. 396, 53 S. W. 78, holding company
liable where plaintiff injured by engine which could easily have
averted peril; Houston etc. By; v. Hartnett (Tex. Civ.), 48 S. W.
775, holding persons operating an engine are required to use only
ordinary care; Deans v. Wilmington etc. B. B., 107 N. C. 692, 22
Am. St. Bep. 905, 12 S. E. 79, holding negligence is question for
jury when man lies helpless on track and could have been eeen by
engineer a long way off.
A Person Walking on Track is presumed to leave the same in
time to prevent injury from a train of which he should have knowl-
edge by the use of senses.
Approved in Texas etc. By. ▼. Barfield (Tex. Sup.), 3 S. W. 666,
and St. Louis etc. By. v. Herrin, 6 Tex. Civ. 723, 724, 26 S W. 427,
428, both following rule; Artusy ▼. Missouri etc. By., 73 Tex. 195,
11 S. W. 178, applying principle where unknown deaf person run
over; International etc. By. v. Garcia, 75 Tex. 591, 13 S. W. 227,
applying principle where person not known to be deaf injured on-
919 NOTES ON TEXAS EEPOETS. 52 Tex. 187-206
track; Provost v. Yazoo etc. B. E., 52 La. Ann. 1902, 28 So. 309,
applying^ principle to person injured while on trestle. See 90 Am.
Dee. 781, note.
A Nonexpert Witness should state facts and leave the deductions
to the jury.
Approved in International etc. By. ▼. Kuehn, 11 Tex. Civ. 24, 31 S.
W. 324, holding nonexpert incompetent to prove cause of death at-
tributed to act committed long before death. See note, 71 Am. Dec.
538.
52 Tez. 187-201, HOLLIS y. DA8HIELL.
The Transfer of Headlight Certillcates executed in blank accord-
ing to custom needs no explanation.
Approved in Stone v. Brown, 54 Tex. 334, holding properly exe-
cuted transfer of land certificates not void because blanks not filled
up; Threadgill v. Butler, 60 Tex. 601, upholding deed in blank with
verbal authority to fill in grantee's name; Capp v. Terry, 75 Tex.
400, 13 S. W. 56, upholding deed acknowledged as "M. £. T.," but
signed as "E. M. T."
Distinguished in Stone v. Brown, 54 Tex. 338, arguendo in separate
opinion.
Judgment hy Consent by Qnardlan ad Litem or administrator is
not void by reason of such consent.
Approved in Ivey v. Harrell, 1 Tex. Civ. 230, 20 S. W. 776, follow-
ing rule; McClesky v. State, 4 Tex. Civ. 325, 23 S. W. 519, holding
judgment by consent against defendants in suit to annul incorpora-
tion of town valid and res adjudicata; Goliad v. Weisiger, 4 Tex.
Civ. 659, 23 S. W. 696, holding judgment by consent against defend-
ant in suit against city is binding on collateral attack.
The Validity of a Judgment against parties properly served is
not affected by the fact that it is void as to other defendants not
served.
Approved in Miller v. Foster, 76 Tex. 488, 13 S. W. 532, holding
decree setting aside will conclusive as to all necessary parties before
the court; Miller v. Foster (Tex. Sup.), 12 S. W. 122, a judgment
rendered against persons possessing interests in the subject matter
is binding upon the contingent estates dependent upon those inter-
ests.
The Subscribing Witness to an Instriiment over thirty years old is
presumed dead so as to admit evidence of his signature.
Approved in Baldwin v. Goldfrank, 9 Tex. Civ. 276, 26 S. W. 159,
following rule; Timmony v. Burns (Tex. Civ.), 42 S. W. 134, per-
mitting witnesses to identify the signature of a subscribing wit-
ness to an instrument forty-one years old. See note, 35 L. E. A.
342.
52 Tex. 201-206, ROBINSON y. McWHIBTEB.
Implied Equitable Liens will not be enforced if their enforcement
lessens the security stipulated for in reference to other part of pur-
chase money.
Approved in Silliman v. Gammage, 55 Tex. 372, holding mortgagee
getting deed to land has priority over purcha9er at execution sale
made b^ore conveyance.
62 Tex. 20e-246 NOTES ON TEXAS REPORTS. 920
62 Tez. 206-221, POPE y. DAVENPOBT.
Wliere There Ib an Agreement between the sheriff and the exe-
cution purchaser that whatever the excess of bid might be of the
amount due that it be satisfied by payment of the amount of the
execution, the sale is voidable only, and the execution defendant can-
not collaterally attack the proceedings.
See note, 96 Am. Dec. 268.
Under United States Bevlsed Statates, Section 6046, the assignee
in bankruptcy has the same power over the disposition and manage-
ment of tlie property as the bankrupt had if no assignment made.
Approved in Curdy v. Stafford, 88 Tex. 125, 30 S. W. 553, holding^
no order of sale necessary.
A Sale by an Assignee in Bankruptcy is not void because an ad-
verse claimant is not a party to the proceedings of sale.
Approved in Pearson v. Hudson, 52 Tex. 360, and Bowles v. Beal^
60 Tex. 324, both following rule.
To Exempt a Defendant from Liability for use and occupation un-
der Paschal's Digest, article 5306, he must prove both payment of
taxes and failure of plaintiff to pay the same.
Approved in Clark v. Smith, 59 Tex. 280, following rule.
52 Tez. 222>228> JOHNSON ▼. GUBUSY.
A CoYehant is an Agreement duly made between the parties to do-
or not to do a particular act.
Approved in Ewing v. Miles, 12 Tex. Civ. 27, 33 S. W. 238, breach
of covenant to pay rent does not work forfeiture without express
provision. See note, 6 L. B. A. 107.
The Lessor may, Without an Express Clause to that effect, take^
advantage of a breach of condition by re-entry or ejectment, but
the breach of condition does not, of itself, devest the estate of the
lessee.
Approved in Teague v. Teague, 22 Tex. Civ. 445, 54 S. W. 633, con-
veyance in fee in consideration of payment of part of crops implies-
condition subsequent that grantee shall cultivate same.
In Case of Donbt as to the True Construction of a clause in a
lease, it should be held to be a covenant, and not a conditional
limitation.
Approved in Chicago etc. By. v. Titterington, 84 Tex. 222, 31 Am.
St. Bep. 42, 19 S. W. 473, holding stipulation as to station in deed
to right of way is a condition; Texas etc. Coal Co. v. Lawson, 10
Tex. Civ. 502, 31 S. W. 849, holding agreement in lease of businesa
to furnish statement is a covenant; Byars v. Byars, 11 Tex. Civ. 568,
569, 32 S. W. 927, refusing parol evidence to change deed absolute
in form to one on condition subsequent.
52 Tez. 228-246, ANDEBSON CO. Y. HOUSTON ETC. B. B.
Under the Act of April, 1871, the county court was the tribunal
to determine the result of the election for railroad aid bonds.
Approved in Fort Worth v. Davis, 57 Tex. 235, arguendo.
Where the Validity of a Bailroad Aid Election is not questioned
by county officials, and the judgment of the county court confirming^
it having been acted on for period beyond that allowed for review,
it is not subject to review by the district court.
Approved in Blanc v. Meyer, 59 Tex. 92, refusing Injunction against
tax sale where entire tax not alleged to be illegal.
921 NOTES ON TEXAS BEPOBTS. 62 Tex. 246-265
Where the Beeult of an Election is hy law to be ascertained by any
tribunal, the action of that tribunal is conclusive on collateral attack.
Approved in Graham v. Greenville, 67 Tex. 68, 2 S. W. 744, up-
holding election to annex territory to city.
62 Tex. 246-252, RAINBOLT y. MABOH.
An Xntervener cannot Object to the introduction of depositions
taken before his intervention.
Approved in Shield* v. Ord (Tex. Civ.), 51 S. W. 299, error to
permit an intervener to introduce in evidence a deposition taken
before her intervention.
A Bond Describing Land which can be identified by extrinsic evi-
dence is not void on its face.
Approved in Blackburn ▼. McDonald, 1 Posey U. C. 359, holding
deed describing grant, county and number of acres owned by grantor,
sufficient to pass title. See note, 60 Am. Dec. 223.
Mere Preponderance of Conflicting Evidence is not ground for re-
versal.
Approved in Gulf etc. By. Go. v. Mangham, 29 Tex. Civ. 487, 69
8. W. 81, following rule.
62 Tex. 252-266, BAKEB y. OOBfPTON.
Paschal's Digest^ Article 3962, requiring registration of judgments
before they could operate as a lien, took effect from its passage.
Approved in Biggs v. Hanrick, 59 Tex. 573, holding limitations run
against vendor's lien notes; Biggs v. McBride, 17 Or. 646, 21 Pac.
880, 5 L. B. A. 115, holding act reciting that it shall take effect
after its approval by governor, but which is passed over his veto,
is in force from its passage.
Distinguished in Scales v. Marshall, 96 Tex. 143, 70 8. W. 947,
statute limiting time for taking out mandate in reversed and re-
manded cases as to cases reversed prior to twelve months from
"passage" of act, gave one securing reversal in case then pending
twelve months from time act went into effect; Andrews v. St. Louis
Tunnel B., 16 Mo. Ap. 310, holding railroad lien act of March 21,
1873, did not go into effect until ninety days after passage.
Under Warranty Deed Beciting Existence of unpaid purchase
money note, but not reserving lien for their payment, the vendor
has only an implied vendor's lien.
Approved in Webster v. Mann, 52 Tex. 426, upon sufficiency of
title to maintain trespass to try title; Marshall v. Marshall (Tex.
Civ.), 42 S. W. 354, vendor delivering possession to grantee retains
an equitable lien for the unpaid purchase money; Doane v. Dixon
(Tex. Sup.), 11 S. W. 1082, vendee acquires no rights where he
fails to comply wth executory contract of purchase.
Under a Deed Beserving a Lien for unpaid purchase money the
vendor has the superior title and the deed is evidence of an executory
contract.
Approved in McKelvain v. Allen, 58 Tex. 387, and Biggs v. Han-
rick, 59 Tex. 571, both following rule; Carson v. Kelley, 57 Tex. 380,
holding warranty deed absolute in terms with no express vendor's
lien is executed contract; Bindge v. Oliphiot, 62 Tex. 685, applying
principle to probate sale under order reserving lien, but where deed
is silent as to lien; McCamly v. Waterhouse, 80 Tex. 343, 16 S. W.
20, holding assignment of vendor's lien note carries lien; Chicago etc.
By. ▼. Titterington, 84 Tex. 222, 31 Ahl St. Bep. 42, 19 S. W. 473,
52 Tex. 266-282 NOTES ON TEXAS REPOETS. 922
holding deed reciting location of station as part of consideration is
executed and passes title; Garner ▼. Black, 95 Tex. 130, 65 3. W.
877, assignee of a purchase money note acquires no rights to the
property by mere possession; Uhl v. Musquez, 1 Posey U. C. 660,
upholding plea of limitations under deed reserving vendor's lien;
McAfee v. Wheelis, 1 Posey U. 0. 69, arguendo. See notes, 62 Am.
Dec. 512; 84 Am. Dec. 596.
The ABBlgnee of a Parchase Money Note acquires no possessory
right to the land for which it is given.
Approved in Cassaday v. Frankland, 55 Tex. 458, assignment of
note and mortgage given to secure purchase money devests vendor
of superior title; Bussell v. Kirkbride, 62 Tex. 456, holding vendor
of land under executory contract for its sale is the legal owner
till price paid; Cassiday v. Frankland, 1 Posey U. C. 547, limitations
run against assignee of vendor's lien note.
Distinguished in Abernethy v. Bass^ 9 Tex. Civ. 244, 29 8. W.
400, upon facts.
A Deed Absolute Beciting Existence of unpaid purchase money
notes, but retaining no express lien, passes title, subject to implied
'lien for payment of notes.
Approved in Bansom v. Brown, 63 Tex. 189, following rule; Moore
▼. Ingram, 2 Posey U. G. 261, arguendo.
I 62 Tex. 266-282, PEABSON y. TIANAQAXT.
V I Under Bnlee of Supreme Court specifications of error must be spe-
^J cifically and distinctly assigned, with a specification of the grounds
r\Cor reversal.
/ Approved in Swift v. Bruce, 31 Tex. Civ. 93, 71 S. W. 322, Byrnes
/ V. Morris, 53 Tex. 220, Flanagan v. Womack, 54 Tex. 52, Green v.
I Dallahan, 54 Tex. 285, Barnard v. Tarleton, 57 Tex. 404, Hodde v.
Susan, 63 Tex. 310, Tudor v. Hodges, 71 Tex. 395, 9 S. W. 444, Handel
V. Kramer, 1 Tex. Ap. Civ. 473, Pfeuffer v. Wilderman, 1 Tex. Ap.
Civ. 669, Gulf etc. By. v. Barney (Tex. Civ.), 24 S. W. 654, Puller v.
Follis (Tex. Civ.), 24 S. W. 369, Shilling v. Shilling (Tex. Civ.),
35 S. W. 420, and Marsalis v. Thomas, 13 Tex. Civ. 59, 35 S. W.
797, all following rule; Scott v. Farmers' etc. Nat. Bank (Tex. Civ.),
66 S. W. 492, assignment that court erred in overruling motions
for new trial and for judgment non obstante veredicto, for reasons
set forth in motions, is too general; St. Louis etc. B. Co. ▼. Dobie
(Tex. Civ.), 75 S. W. 341, assignment that court erred in overruling
defendant's motion for new trial is too general; Cameron v. Fay, 55
Tex. 64, distinct proposition of law arising must be specifically set
forth; Gulf etc. By. v. Montier, 61 Tex. 124, and John v. Battle,
58 Tex. 599, that "court erred in refusing to grant new trial on
grounds stated" is too general; Hollman v. H. & T. C. B. B., 2 Posey
U. C. 559, error plainly obvious on record will be considered.
Distinguished in Clarendon Land etc. Co. v. McClelland, 86 Tex.
191, 23 S. W. 1102, 22 L. B. A. 105, if assignment of error is suffi-
ciently specific for court to see ruling complained of it should be
held good.
Where Defendant Denies Possession and claims title by virtue of
execution sale against plaintiff, it is not error to overrule objection
of defendant to the validity of title down to the plaintiff.
Approved in Burns v. Goff, 79 Tex. 239, 14 S. W. 1010, foUowing
rule; Evans v. Foster, 79 Tex. 50, 15 S. W. 171, objection cannot
\
/
923 NOTES ON TEXAS REPORTS. 52 Tex. 282-294
be made to chain of title between sovereignty and admitted common
source; Roby v. Carter, 6 Tex. Civ. 300, 25 S. W. 727, owners sued on
contract, plaintiff need only prove contracts, for defendant owners are
the common source; Cox v. Hart, 145 U. S. 386, 12 Sup. Ct. Rep. 966,
36 L. 746, where parties claim from common source, it is not neces-
sary to consider validity of deed by which common grantor held. ^^^
See note, 47 Am. St. Rep. 76.
Pasclial's Digest* Article 3775, being merely directory, a failure to
make a levy as provided therein does not necessarily make the sale
void.
Approved in Fatheree v. Williams, 13 Tex. Civ. 433, 35 S. W. 326,
Odle V. Frost, 59 Tex. 689, Allen v. Pierson, 60 Tex. 606, in absence
of fraud between sheriff and judgment debtor failure to demand
levy will not avoid sale.
Wliile Inadequacy of Price is Injmfficieat* gross inadequacy in con-
nection with circumstances showing fraud may avoid execution sale.
Approved in Irvin v. Ferguson, 83 Tex. 495, 18 S. W. 821, Wilson
V. Aultman (Tex. Civ.), 39 S. W. 1104, Hunstock v. Roberts (Tex.
Civ.), 55 S. W. 514, and Stark ▼. Ingram, 2 Posey U. C. 634, all fol-
lowing rule; Clark v. Bell, 40 Tex. Civ. 45, 89 S. W. 41, where prop-
erty fraudulently conveyed by debtor is sold on execution against
him, execution sale not set aside at instance of fraudulent grantee
for inadequacy of price; Smith v. Perkins, 81 Tex. 157, 26 Am. St.
Rep. 798, 16 S. W. 807, gross inadequacy of price may be indicative
of fraud; McKennon v. McGown (Tex. Sup.), 11 S. W. 533, failure
to levy upon property before sale and also obtaining inadequate
price may together vitiate a sale. See note, 84 Am. Dec. 619.
Clrcamstances ixk Gonnection with inadequacy of price must not
be such as are attributable to the direct agency of execution defend-
ant to set aside execution sale.
Approved in Martin v. Anderson, 4 Tex. Civ. 117, 23 S. W. 293,
following rule; Allen v. Pierson, 60 Tex. 605, and Pearson v. Hud-
son, 52 Tex. 361, both holding gross inadequacy of price and irregu-
larities in levy will avoid sale; Bordages v. Higgins, 1 Tex. Civ.
51, 19 S. W. 449, sale void when levy conduced to insufficiency of
price; Lee v. Texas etc. R. R., 22 Tex. Civ. 504, 55 S. W. 978,
inadequacy of price and close relation of purchaser and sheriff, and
selling before appointed time, will avoid sale.
52 Tex. 282-287, GASTON ▼. BOYD.
Failure to Present Claim Against an Estate within statutory period
bars recovery against heirs as well as administrator, though secured
by lien on land.
Approved in Tucker v. Bryan, 1 Tex. Ap. Civ. 660, following rule.
Miscellaneous.—Harris v. Wilson (Tex. Civ.), 40 S. W. 870, hold-
ing a sale by a trustee pending administration is void.
52 Tez. 288-294, ABNEY ▼. POPE.
A Sale Under Power in a Trust Deed after death of grantor is
invalid.
Approved in Toboldi v. Palms, 97 Tex. 416, 79 S. W. 23, trustee's
sale after administration closed ineffective as against right of pro-
bate homestead in same land; Texas Loan Agency v. Dingee, 33 Tex.
Civ. 120, 75 S. W. 868, sale by trustee under trust deed providing
that power to sell not revoked by grantor's death is void where
made pending administration; Thaxton v. Smith (Tex. Civ.), 38 3.
62 Tex. 294-301 NOTES ON TEXAS REPORTS. 924
W. 827, holding creditors in an unezeented deed of trusrt must pre-
sent claims to administrator of estate of trustor. See note, 70 L. R.
A. 143.
Distinguished in Rogers ▼. Watson, 81 Tex. 403, 17 8. W. 30, hold-
ing trustees under deed may sell after lapse T>f four years from
maker's death where no administration on estate; dissenting opinion
in Linberg v. Finks, 7 Tex. Civ. 398, 25 S. W. 791, majority holding
sale after death of grantor under power of sale passes no title where
no administration had.
The Probata Gourt may Make Allowance in lieu of homestead and
exempt property, and it is preferred to mortgage lien.
Approved in Champion v. Shumate, 90 Tex. 599, 39 S. W. 129,
holding landlord's statutory lien on crops for rent due is superior.
See note, 56 L. R. A. 36.
52 TeaL 294-301, 36 Am. Sep. 726, HAIiL t. HAIiL.
The Huaband may Grant Oommuiity or Separate Property direct
to wife without the intervention of a trustee.
Approved in McCormick v. McNeel, 53 Tex. 21, holding note given
to intended wife, secured by mortgage on homestead, is lien on
homestead after its abandonment; Adoue v. Spencer, 62 N. J. £q. 791,
90 Am. St. Rep. 484, 49 Atl. 14, 56 L. R. A. 817, discussing rights
of wife where husband conveys property to wife through third person
to secure loan of her separate money; Bennett v. Bennett, 37 W. Va.
398, 38 Am. St. Rep. 49, 16 S. E. 639, upholding judgment by confes-
sion against husband in favor of wife; Ryan v. Ryan, 61 Tex. 476,
and Alexander v. Alexander, 85 Va. 366, 7 S. E. 340, 1 L. R. A. 125,
both arguendo. See notes, 76 Am. Dec. 108; 86 Am. Dec. 642.
"While Property Purchased With Comnmnity FnndB and taken in
wife's name is presumed to be community, the presumption is rebut-
table by proof of husband's intention to make it separate property.
Approved in Hall v. Levy, 31 Tex. Civ. 362, 72 S. W. 264, where
husband turned over to wife money received in settlement of policy
in favor of wife and afterward his firm borrowed money from her,
paying back partly by conveyance of land to her, land was hers and
not liable for husband's debts; Branch v. Makeig, 9 Tex. Civ. 402, 28
S. W. 1051, admitting declarations of husband at time of purchase
that he was buying for wife. See notes, 62 Am. Dec. 479; 70 Am.
Dec. 400; 86 Am. Dec. 628; 86 Am. Dec. 640; 69 L. R. A. 378.
A Note Executed by Husband to Wife for money loaned to husband
out of separate property of wife is binding on husband's estate, and
both principal and interest are wife's separate property.
Approved in Braden v. Gose, 57 Tex. 41, refusing injunction against
levy on property conveyed to wife during coverture; Ryan v. Ryan,
61 Tex. 474, holding wife may attach community property for separate
debt due from husband; Martin Brown Co. v. Perrill, 77 Tex. 204,
13 S. W. 977, holding wife may recover judgment for principal and
interest on debt due by husband's firm; Swearingen v. Reed, 2 Tex.
Civ. 367, 21 S. W. 384, deed from husband to wife need not reoite
that it is for her separate use to make it separate property; Hamiltaa
etc. Shoe Co. v. Whitaker, 4 Tex. Civ. 388, 23 S. W. 523, holding
interest due on debt from husband to wife is her separate property.
See notes, 86 Am. Dec. 633; 69 L. B. A. 356.
1
925 NOTES ON TEXAS REPORTS. 62 Tex. 301-335
The Statntes Becognize married women's separate property rights.
Approved in Dority v. Dority, 96 Tex. 222, 71 8. W. 953, 60 L. R. A.
941, where husband abuses trust in managing wife's separate estate she
may sue to enjoin him for interfering with her property.
52 Tex. 301-306, DONUBY ▼. WIGGINS.
Bequest That Claim be "Settled" is sufficient demand for payment
of money.
Approved in Clarke ▼. Presidio County, 35 Tex. Cix. 174, 79 8. W.
594, suit maintainable against county for legal services though claim
presented to commissioners and only allowed in part was in form of
proposal to take, in case of immediate settlement, a less sum than
sued for.
52 Tex. S0e-826» SNIDEB ▼. INTEBKATIONAL ETC. B. B.
Presomed That a Survey, properly certified and which is stated in
recorded field-notes as having been made by virtue of certificate,
grantee of which is mentioned, was made for the grantee of the cer-
tificate.
Approved in Atkinson t. Ward, 61 Tex. 387, arguendo.
"Wliere Records Show Surveys of Two Tracts under same certificate
made on the same day, and entries follow one immediately after the
other, fact that second only contains name without official title of
surveyor is immaterial.
Approved in Snider v. Methvin, 60 Tex. 491, arguendo.
62 Tex. 326-385, BIiACKWELL ▼. BABNBTT.
Where a Debt Secured by Mortgage is barred the mortgage also is
barred.
Approved in McKeen ▼. James (Tex. Civ.), 23 S. W. 464, and
Laing >. Queen City Ry. (Tex. Civ.), 49 S. W. 138, both holding
a mortgage an incident to the debt; Moline Plow Co. v. Webb, 141
U. S. 626, 12 Sup. Ct. Rep. 102, 35 L. 882, applying principle; Cason
V. Chambers, 62 Tex. 307, holding renewal of barred note secured by
mortgage does not affect rights of third parties accruing while note
barred and prior to renewal. See notes, 62 Am. Dec. 539; 31 Am.
Rep. 41; 13 L. R. A. (n. s.) 1211; 6 L. R. A. (n. s.) 510; 21 L. R. A.
557.
Overruled in Qoldfrank v. Young, 64 Tex. 437, holding where
•creditor has contracted for sale under trust limitations do not apply;
Pieval V. Zuber, 67 Tex. 278, 279, 3 8. W. 274, holding statute of
limitations with reference to debts affects the remedy and not the
debt.
A Deed of Trust is but a Mortgage with a power of sale.
Approved in Texas Loan Agency v. Gray, 12 Tex. Civ. 432, 34
S. W. 651, following rule; Alliance Milling Co. v. Eaton, 86 Tex.
409, 25 S. W. 617, 24 L. R. A. 369, construing instrument as mort-
gage with power to sell, and not as assignment for benefit of cred-
itors; First Nat. Bank v. Bell etc. Mining Co., 8 Mont. 51, 19 Pae.
410, construing instrument as mortgage with power of sale, and not
a trust deed; Thompson v. Marshall, 21 Or. 177, 27 Pac. 960, holding
statutory mode of foreclosure cannot be changed by contract.
The Power of Sale Given by a Trust Deed affects the remedy only,
and is intended to give the creditor a speedy foreclosure without suit.
See notes, 55 Am. Dec. 771; 62 Am. Dec. 539; 7 Am. St. Rep. 32.
52 Tex. 335-347 NOTES ON TEXAS REPORTa 926
52 Tex. 336-347, WILLIAMSON ▼. LAKB.
The Appellate Jurisdiction of the Supreme Court can only be exer-
cised over subjects of which the constitution gives the district court
jurisdiction.
Approved in Ex parte Whitlow, 59 Tex. 274, denying jurisdiction
of district court to revise action of county judge in declaring result
of location of county seat; State v. De Gross, 72 Tex. 246, 11 8. W.
1030, holding act of July 9, 1876, cannot enlarge powers of district
court to give it jurisdiction over election contest; Ex parte Coombs,
38 Tex. Cr. 672, 47 S. W. 165, holding Dallas City court has no
jurisdiction to try offense of keeping disorderly house.
An Election Contest, under act of May 8, 1873, is neither a suit,
jcomplaint, or plea, as the words are used in the constitution.
Approved in Robinson v. Wingate, 36 Tex. Civ. 69, 80 8. W. 1069,
injunction does not lie to prevent commissioner's court from canvass-
ing returns and publishing result of local option laws on grounds
rendering election void or available to set it aside in contest under
statutes; Sumter v. Duffie, 80 Ark. 373, 97 S. W. 436, upholding
Kirby's Digest, section 2856, providing that contest of election of
county and probate judge shall be before county circuit court;
Seay v. Hunt, 55 Tex. 558, holding legislature may confer power
on city council to determine eligibility to municipal office; Gib-
son V. Templeton, 62 Tex. 556, 557, denying jurisdiction of distri<;t
court over contest of election for sale of liquors; State v. Owens, 63
Tex. 265, upholding quo warranto to determine title to office; Brown
V. Wheelock, 75 Tex. 387, 12 S. W. 112, holding function of district
court in action on applications to remove disability of minority is
not judicial; Odell v. Wharton, 87 Tex. 174, 27 S. W. 123, applying
principle to local option election contest; Buckler v. Tubeville, 17
Tex. Civ. 121, 43 S. W. 810, denying writ of error in election contest;
Thomas t. Franklin, 42 Neb. 312, 60 N. W. 569, applying principle
under Compiled Statutes of 1893, chapter 26; Bell v. Faulkner, 84
Tex. 189, 19 S. W. 480, arguendo.
In a Suit for an Office, the immediate right to an office and its
emoluments is the subject matter of the suit, and in an election
contest the right to an office is a consequential, but not a primary,
object.
Approved in State v. Owens, 63 Tex. 269, upholding quo warranto
to determine title to office; Wheat v. Smith, 50 Ark. 272, 7 S. W.
162, holding action for possession of office may be maintained by
one duly elected.
The Act of May, 1873, as amended July 20, 1876, regulating con-
tested elections, authorized and contemplated an election contest, and
not a suit for office.
Approved in Freeman v. State, 72 Ga. 815, upholding election con-
test act of 1883; Pedigo v. Grimes, 113 Ind. 149, 13 N. E. 701, hold-
ing, in election contest, trial by jury is not permissible; Messer v.
Cross, 26 Tex. Civ. 37, 63 S. W. 171, and Coombs v. State (Tex. Cr.),
47 S. W. 165, both arguendo.
Under Acts to Begulate Election Contests, election contests for all
district and county officers, irrespective of value, must be brought
in the district court.
Approved in State v. De Gross, 53 Tex. 399, determining how far
charter of Austin affected district court's jurisdiction over election
contests; Mc Allen v. Rhodes, 65 Tex. 351, holding right to office may
927 NOTES ON TEXAS REPORTS. 52 Tex. 348-362
be determined in ordinary civil action; Cobb v. Cohron (Tex. Clv.\
26 S. W. 847, constitution limited but did not confer upon district
court jurisdiction to try an election contest.
Determination of Besolt of Election is not judicial question unless
made so by court.
Approved in Toncray v. Budge, 14 Idaho, 636, 95 Pac. 30, uphold-
ing supreme court's original jurisdiction under statute, in matter of
contest of election of district judge; McWhorter v. Dorr, 57 W. Va.
611, 110 Am. 8t. Rep. 815, 50 S. £. 839, prohibition does not lie to
prevent member of special tribunal constituted under code, chapter
6, section 15, from acting on hearing of election contest; Scarbor-
ough V. Eubank (Tex. Civ.), 52 S. W. 569, an election contest is not
a civil case within the meaning of the constitution; Donaldson v.
State, 15 Tex. Ap. 28, dissenting opinion in Henderson v. Beaton,
52 Tex. 52, Fort Worth v. Davis, 57 Tex. 236, all arguendo; dissent-
ing opinion in Pratt v. Breckinridge (Ky.), 65 S. W. 148, majority
holding legislature has no power to appoint a board of election com-
missioners.
Miscellaneous. — Ex parte Anderson, 46 Tex. Cr. 375, 81 S. W. 973,
denying city court's jurisdiction over violation of state law; Blanc
V. Meyer, 59 Tex. 92, miscited to the point that injunction will not
issue to restrain tax sale where whole tax not illegal.
52 Tex. 348-362, CONE ▼. CBX7M.
When Claim Apparently Barred by Statute is allowed and ap-
proved, it ia presumed to *have been within exceptions preventing
bar.
See note, 65 Am. Dec. 127.
An Administrator is Entitled to Equitable Belief when a claim
barred by limitations is allowed and approved by mistake, where the
rights of the holder of the claim are not prejudiced thereby.
Approved in Howard v. Johnson, 69 Tex. 657, 7 S. W. 523, hold-
ing, where barred claim allowed and approved, heir may set it aside
by direct proceedings. See note, 65 Am. Dec. 121.
An Order Allowing a Claim against an eart;ate will be set aside
where it was mistakenly allowed on representations of counsel for
both parties.
See note, 65 Am. Dec. 125.
52 Tex. 352-362, PEABSON ▼. HUDSON.
The Execution of a Tmst Deed to land subject to judgment lien
in favor of another, <to secure debt due third party, is not fraudulent
as to judgment lienor.
Approved in Miller v. Koertge, 70 Tex. 165, 8 Am. St. Rep. 589,
7 S. W. 693, arguendo.
Inadeqaacy of C<Ni8ideration, in connection with irregularities in
levy, are sufficient to set aside execution sale.
Approved in McKennon v. McGown (Tex. Sup.), 11 8. W. 533, and
Allen v. Pierson, 60 Tex. 605, 606, folio whig rule; Smith v. Perkins,
81 Tex. 157, 16 S. W. 807, holding gross inadequacy of consideration
alone insufficient to avoid judicial sale; Hunstock v. Roberts (Tex.
Civ.), 55 S. W. 514, inadequacy of price does not vitiate a sale. See
note, 84 Am. Dec. 619.
62 Tex. 362<^83 NOTES ON TEXAS REPORTS. 928
52 Tex. 862-370, OBOW T. BED BIVEB COUNTY BANE.
Where the DeecripticMi of Mortgaged Personalty is sufficiently cer-
tain of identification from other similar articles, no schedule need
be given.
Approved in State ▼. Cooper, 79 Mo. 466, upholdiug description
in trust deed where accompanied by schedule. See notes, 14 Am.
6t. Bep. 245; 70 Am. Dec. 291.
Where Mortgagor Bemains in PossessioiL of Gooda^ without any
stipulation in mortgage to that effect, and sells goods as agent of
mortgagee, the mortgage is not void for fraud.
Approved in Eicks v. Copeland, 53 Tex. 589, 37 Am. Bep. 761,
holding, where fraud apparent on face of instrument, question is
for the court; Bet tea v. Weir Plow Co., 84 Tex. 546, 19 S. W. 706,
holding employment of mortgagor by trustee to sell mortgaged goods
does not avoid mortgage; Noyes v. Boss, 23 Mont. 448, 75 Am. St.
Bep. 556, 59 Pac. 375, 47 L. B. A. 400, upholding mortgage with
provision that mortgagor may sell goods at retail and apply net
proceeds on debt; Lewis v. Alexander (Tex. Civ.), 31 S. W. 417,
employment of a mortgagor in good faith, after execution of the
mortgage, does not invalidate the trust. See notes, 15 Am. St. Bep.
916; 18 L. B. A. 609, 623.
52 Tex. 375-379, OOODBICH T. O'CONNOB.
Where Under Act of February 7, 1866, land certificates granted
to heirs of a person, parties entitled to inherit under the laws in
force at date of death of person entitled to grant.
Approved in Wardlow v. Milter, 69 Tex. 398, 6 S. W. 294, follow-
ing rule; Lindsay ▼. Freeman, 83 Tex. 262, 18 S. W. 729, where
intestate died in 1837, mother inherits in absence of wife, child, or
father; Ihinman v. Cloud, 3 Tex. Civ. 458, 22 S. W. 529, holding
collateral heirs of single man cannot bring trespass to try title in
absence of proof of parents' death; Kircher v. Murray, 54 Fed. 621,
applying principle to right to land certificate under act of February
13, 1858.
62 Tez. 379-383, BEID ▼. FEBNANDEZ.
A Bond on Appeal for Payment of Accmed Costs and costs on
appeal, without stipulation as to damages, is insufficient, either aa
a cost or supersedeas bond.
Approved in Perkins v. Bates, 61 Tex. 191, Lerrick v. Wright,
1 Tex. Ap. Civ. 65, Hanlon v. Silk (Tex. Sup.), 3 S. W. 290, and
Carter ▼. Forbes Lithograph etc. Co., 22 Tex. Civ. 374, 54 S. W.
927, all following rule; Gallagher v. Porter, 2 Tex: Ap. Civ. Ill,
applying principle on appeal from justice's court; White v. Harris.
85 Tex. 46, 19 S. W. 1078, holding misdescription in date of judg-
ment and in amount renders appeal bond void.
A Statutory Bond, whose conditions are clearly specified, must
embrace all conditions, if it does not literally follow that statute.
Approved in Caldwell v. Ballow (Tex. Sup.), 7 8. W. 678, follow-
ing rule; Miller v. Sappington, 1 Tex. Ap. Civ. 70, upholding bond
conditioned to satisfy any judgment that may be rendered against
appellant; Kerr v. Clegg, 1 Tex. Ap. Civ. 436, and Lee ▼. Stone, 1
Tex. Ap. Civ. 740, both applying principle to justice's appeal bond;
Johnson v. Brunson, 1 Tex. Ap. Civ. 483, holding attachment bond
must literally follow the statute.
929 NOTES ON TEXAS REPORTS. 52 Tex. 383-391
62 Tex. S83~391, STOVALL T. OABMICHAEL.
Prior to the Bevised Statutes, a tenant in common might recover
entire premises against a mere 'wrongdoer without disclosing his inter-
est in the petition.
Approved in Pilcher v. Kirk,, 55 Tex. 214, 217, failure of petition
to describe plaintiff as sole heir of original grantee does not defeat
trespass to try title against wrongdoer; Sowers v. Peterson, 59 Tex.
221, and Bowles v. Beal^ 60 Tex. 325, both arguendo. See note, 70
Am. Dec. 314.
The Inatitatlon of Trespass to Try Title, in 1876, by part owner,
when the petition does not show that it was brought also in behalf
of other owners, does not stop running of statute as against others.
Approved in Cobb v. Robertson, 99 Tex. 147, 122 Am. St. Rep. 609,
86 S. W. 749, and Read v. Allen, 56 Tex. 182, following rule;
Bean v. Dove, 33 Tex. Civ. 381, 77 S. W. 244, where, after judg-
ment in partition proceedings, A intervened as unknown heir and
moved for new trial, such intervention did not stop limitations
against other unknown heirs who intervened eight years after
partition; Bas0 v. Sevier, 58 Tex. 570, holding judgment against
one cotenant not conclusive on others not parties: Allen v. Read,
66 Tex. 20, 17 S. W. 117, holding withdrawal of intervention
by second cotenant does not adjudicate his rights; Johnson v. Schu-
macher, 72 Tex. 339, 12 S. W. 208, holding purchase of married
woman does not stop running of limitations; Tevis v. Collier, S^ Tex.
640, 19 S. W. 802, holding title by limitation acquired by eighteen
years' possession against unmarried woman; Davidson v. Wallingford
(Tex. Civ.), 30 S. W. 290, holding defendants must show that there
are other tenants in common barred by limitation to defeat recovery
of entire property by plaintiffs; Dillingham v. Bryant, 4 Tex. Ap.
Civ. 43, 14 8. W. 1018, and Uhl v. Musquez, 1 Posey U. C. 660,
limitation runs against defendants brought in on amendment from
date of amendment; dissenting opinion in Byers v. Wallace (Tex.
Civ.), 25 S. W. 1046, majority holding defendants, as material heirs,
cannot claim title by five years' adverse possession, in absence of
showing they were the material heirs; Couble v. Worsham, 96 Tex.
94, 97 Am. St. Rep. 876, 70 S. W. 739, arguendo. See notes, 36 Am.
Dec. 78; 49 Am. St. Rep. 714.
Distinguished in Dillingham v. Bryant (Tex. Ap.), 14 S. W. 1018,
the statute of limitation, interrupted as to one receiver, is inter-
rupted as to all.
The Instituticm of an Unsnccessful Suit by one tenant in common
binds no one but himself, and other joint tenants are not barred.
Approved in Boone v. Knox, 80 Tex. 644, 26 Am. St. Rep. 768,
16 S. W. 448, holding recovery by one cotenant does not estop re-
covery by others; Higgins Oil & Fuel Co. v. Snow, 113 Fed. 437,
widow entitled to life estate in third of husband's realty consisting
of undivided interest inherited from father, not bound by compromise
judgment in suit by cotenants against adverse claimants, to which
she was not party; Newman v. California Bank, 80 Cal. 371, 374,
13 Am. St. Rep. 170, 173, 22 Pac. 261, 262, 5 L. R. A. 467, holding
recovery by one cotenant in ejectment inures to benefit of all, and
stops limitations; Johnson v. Foster (Tex. Civ.), 84 S. W. 825, a jndg^
ment recovered by a tenant in common against certain parties docs
not act as a bar to suits against the other tenants in common*
2 Tex. Notee— 59
62 Tex. 391-405 NOTES ON TEXAS BEPORTS. 93^
As Against Trespasser, tenant in common may recover entire
premises.
See note, 6 L. R. A. (n. s.) 715.
In Suit by One Tenant in Oommon against another, the judgment
should leave both in possession.
Approved in Akinson v. Ward, 2 Posey U. C. 236, following rule.
Prior to Bevised Statutes* a plaintiff establishing an undivided
interest in land was entitled to a judgment of possession with defend-
ant, who also established interest in land.
Approved in Grothans v. De Lopez, 57 Tex. 674, holding purchaser
of homestead from widow entitled to possession with children.
52 Tex. 391-396^ HERMANN ▼. REYNOLDS.
A Sale of a Land Oertiflcate conveys the equitable title to tbe land
upon which it is subsequently located.
Approved in Abernathy v. Stone, 81 Tex. 434, 16 S. W. 1103, fol-
lowing rule; Hearne v. Gillett, 62 Tex. 27, holding right to land
certificate passes with conveyance of land on which it is located;
League v. Henecke (Tex. Civ.), 27 S. W. 1049, grantee of a land
certificate is estopped by his deed from asserting the legal title;
Culmell T. Burroum, 13 Tex. Civ. 461, 35 8. W. 943, transfer of land
certificate vests but equitable title to land subsequently patented to
original grantee.
QuaUfied in Collins v. Durward, 4 Tex. Civ. 342, 23 S. W. 562,.
holding power of attorney to sell land certificate does not authorize
•ale of land on which certificate is subsequently located.
62 Tex. 896-406, MOSEBT ▼. BURROW.
Court cannot Act on the Suggestion of Amiens Onriae, on matters
which should be presented by exception or answer.
Approved in State v. Jefferson Lron Co., 60 Tex. 315, holding it
is within the discretion of court to permit attorney to act as amicus
curiae.
Corporations axe not Deemed Dissolved by misuser or nonuser
of franchise until default is judicially declared.
Approved in Galveston etc. Ry. v. State, 81 Tex. 595, 17 S. W.
70, forfeiture of corporate franchise cannot be claimed in collateral
proceedings. See notes, 96 Am. Dec. 756, 757; 100 Am. Dec. 552;
8 Am. St. Rep. 195.
InsolToney or Appointment of a Receiver for a corporation does not
necessarily dissolve it.
Approved in Gans v. Switzer, 9 Mont. 417, 24 Pae. 21, holding
trustees of corporation liable for debts, though corporation insolvent
and has assigned property to one of its creditors.
A Receiver cannot Act Oillcially outside of jurisdiction of the
appointing court.
Approved in Pool v. Farmers' Loan etc. Co., 7 Tex. Civ. 338, 27
S. W. 746, holding attempt of president of corporation to deliver
property to foreign receiver does not make receiver's certificates a
lien on property; Kellogg v. Lewis, 16 Tex. Civ. 670, 40 S. W. 323,
suit by foreign receiver does not stop running of limitations; Mo-
reau v. Du Bellet (Tex. Civ.), 27 S. W. 504, a liquidator cannot act
outside the jurisdiction of the official that appointed him; Kruger
v. Bank of Commerce^ 123 N. C. 18, 31 S. £. 270, decree of other
$31 NOTES ON TEXAS BEPOBTS. 52 Tex. 406-416
state appointing receiver does not devest attachment lien of domestic
court; Chandler v. Willamette, 76 Fed. 853, holding, where vessel
sold to pay maritime liens, admiralty court will apportion surplus
to pay certificates issued by receiver appointed by court of other
state. See notes, 6 Am. St. Bep. 185; 8 Am. St. Bep. 50; 69 L. B. A.
696; 23 L. B. A. 57.
Hie Oourts of One State cannot Make a Decree ordering the con-
veyance of land in another state which will be recognized as valid by
the courts of that other.
Approved in Wren v. Howland, 33 Tex. Civ. 95, 75 S. W. 898,
certified copy of proceedings of Louisiana probate «ourt ordering
sale of Texas land are inadmissible; Wren v. Howland, 33 Tex. Civ.
94, 75 S. W. 898, deed ef cur&trix acting under orders of Louisiana
probate court does not convey lands of ward situated in Texas;
Harvey v. Edens, 69 Tex. 425, 6 S. W. 309, a foreign assignment may
be good a« between the parties: Morris v. Hand, 70 Tex. 484, 8 S. W.
211, courts of one state may decree specific performance of contract
for sale of land in another; Texas etc. By. v. Gay, 86 Tex. 597, 26
S. W. 609, 25 L. B. A. 52, holding railroad receiver appointed by one
state court cannot be sued in other state; Fryer v. Meyers (Tex.
Sup.), 13 S. W. 1026, decree of court of Illinois cannot act upon
land situated in Texas; Norton v. House of Mercy, 101 Fed. 389,
holding adjudication of one state court that corporation has received
statutory limit of bequests estops it from claiming bequest to lands
in other state. See note, 69 L. B. A. 677.
Distinguished in Loaiza v. Superior Court, 85 Cal. 28, 20 Am. St.
Bep. 206, 24 Pac. 710, 9 L. B. A. 376, upholding jurisdiction to set
aside contract for sale of mine in Mexico for fraud where contract
made within jurisdiction.
In Absence of Oontrary Evidence rate of interest of another state
presumed same as local note.
See note^ 91 Am. St. Bep. 738, 743.
52 Tex. 40e^l0, VAN BIBBEB ▼. BiATHIS.
A Voluntary OonTeyance by a Parent to children, when parent is
financially embarrassed, is not necessarily fraudulent.
Approved in Willis v. Mclntyre, 70 Tex. 42, 8 Am. St. Bep. 581, 7
S. W. 598, following rule; Morrison ▼. Clark, 55 Tex. 445, subsequent
inability of husband to satisfy creditors does not invalidate gift to
wife; Lewis ▼. Simon, 72 Tex. 475, 10 S. W. 555, subsequent creditor
a<2quiring claim with knowledge of gift sought to be avoided can-
not attack it as fraudulent. See note, 14 Am. St. Bep. 742.
Indebtedness at Time of Voluntary Oonyeymnce is such badge of
fraud as may be considered by the jury in connection with all facts
to determine grantor's intention.
Approved in Perea v. Colorado etc. Bank, 6 N. M. 11, 27 Pac.
325, when garnishee denies indebtedness and evidence contradicts
answer, its truth is question for jury.
52 Tex. 411-416, TIEMANN ▼. BOBSON.
Hie Oommnnlty Interest of Deceased Wife is not subject to sale
as part of husband's estate to raise allowance for second wife and
minor children of second marriage.
Approved in Pressley ▼. BobinsoUi 57 Tex. 458, arguendo.
62 Tex. 416-435 NOTES ON TEXAS BEPOJtTS. 932
The PurclUMer at Sale of Husband's Estate, for purpose of raising
family allowance, acquires no title to the community interest of land
sold as against heirs of first wife.
Approved in Edwards v. Brown, 68 Tex. 336, 5 8. W. 89, arguendo.
62 Tex. 416-427, WEB8TBB ▼. MANN.
Party in Possession Under Warranty Deed may maintain trespass
to try title against a mere trespasser when defendant claims under
plaintiff's lessee.
Approved in Kennedy t. Embry, 72 Tex. 390, 10 S. W. 89, vendor
may rescind contract for sale of land without notice, where no part
performance made within specified time.
Distinguished in Bainey v. Chambers, 56 Tex. 21, arguendo.
When the Oonveyance Is Bxecntory, the superior title remains in
the vendor till purchase money paid.
Approved in Bearrow v. Wright, 17 Tex. Civ. 644, 43 8. W. 904,
holding conveyance by absolute warranty deed passes full title,
and grantor cannot rescind for failure of part of agreement; Bill-
ings V. Warren, 21 Tex. Civ. 80, 50 8. W. 627, holding extrinsic
evidence shows that trust ingrafted on deed.
The Superior Title Remains in Vendor tiU purchase money paid
when a mortgage for the unpaid price is given simultaneously with
deed.
Approved in Bansom v. Brown, 63 Tex. 189, though notes recite
that they are given for purchase money, though no express lien
reserved, there is only an implied lien; Boane v. Dixon (Tex. Sup.),
11 S. W. 1082, vendor can recover possession where he places an ab-
solute deed in escrow.
The Superior Titte Bemaina in Vendor till purchase money paid
when an express lien is retained in the deed for the pajrment of the
purchase money.
Approved in Ufford v. Wells, 52 Tex. 620, Smith v. Pate (Tex.
Civ.), 43 S. W. 314, and Smith v. Cassidy, 73 Tex. 164, 12 S. W. 15,
all foUowing rule; Sassaday v. Frankland, 55 Tex. 457, holding when
notes and mortgage taken as security for purchase money are as-
signed, neither equitable nor legal title remains in vendor; Stephens
V. Motl, 82 Tex. 86, 18 S. W. 100, holding vendor retaining lien
cannot maintain trespass to try title where purchase money not due;
Dunlap V. Green, 60 Fed. 248, holding vendor may rescind, without
notice, on failure to pay installments, and convey valid title to
other purchaser. See notes, 62 Am. Dec. 512; 73 Am. Dec. 211; 4 Am.
St. Bep. 706.
In Trespass to Try Title, where defendant's deed recites considera-
tion paid and that defendant's vendee had taken care of her, defend-
ant's possession not of itself such adverse possession as is notice of
rights remaining.
Approved in Webster v. Mann, 56 Tex. 122, arguendo.
52 Tex. 427-436, JACKSON ▼. PALMER.
The Superior Title Remains in the Vendor, where a purchase money
mortgage is given simultaneously with an absolute deed, aiid vendor
may recover possession on default, though notes barred.
Approved in Summerhill v. Hanner, 72 Tex. 227, 9 S. W. 882,
White V. Cole, 9 Tex. Civ. 280, 29 8. W. 1149, and Ellis ▼. Haanay
933 NOTES ON TEXAS BEPOBTS. 52 Tez. 435-447
(Tex. Civ.), W S. W. 686, all following rule; Crafts v. Daugherty,
69 Tex 480, 6 S. W. 852, holding subsequent purchaser from vendor
of land, who is also assignee of purchase money mortgage, is sub-
rogated to vendor's rights; Kennedy v. Embry, 72 Tex. 390, 10 S.
W. 89, holding upon failure to perform on part of vendee, vendor
may rescind contract of sale without notice, and convey land to
another; Merchants' Ins. Co. v. Scott, 1 Posey TJ. C. 537, sale of
property insured does not aifect policy, if vendor retains lien for
purchase price.
Thingh PnxchMe Money Notes are Barred, the purchaser's vendee,
with notice, cannot resist recovery of land by original vendor, where
purchase money unpaid.
Approved in Harris v. CatUn, 53 Tex. 9, following rule; McPher-
SOB V. Johnson, 69 Tex. 487, 6 S. W. 799, where purchase money
notes unpaid, vendee cannot defeat right of vendor to possession.
See note, 95 Am. St. Bep. 661.
Bquitlea Arlning Out of Failvxe of Vendor to exert purchase money
lien must be pleaded to be available to subsequent purchaser of
vendee.
Approved in Dunlap v. Green, 60 Fed. 248, holding on failure of
vendee to pay purchase price, vendor under contract reserving lien
may sell without notice.
Distinguished in Coddington v. Wells, 59 Tex. 51, holding plain-
tilf seeking to rescind contract for sale of land must tender money
received in part payment.
62 Tex. 435-443, BANDALL ▼. OOLUNS.
If a Wltnees is Present in Court, a deposition cannot be read where
objection is made on that ground.
Approved in Vance v. Upson, 66 Tex. 492, 1 S. W. 184, and McClure
▼. Sheek, 68 Tex. 429, 4 S. W. 554, both following rule.
Distinguished in Houston etc. B. R. v. McKensie (Tex. Civ.), 41 8.
W. 831, deposition of a party may be read in evidence, though he be
present in person.
An Instruction (Hving to the Negative Presumption arising out of
failure of sheriff's fee-book to show charge for service of citation
the same legal effect as the return of citation itself that it had been
served is erroneous.
Approved in Masterson v. Ashcom, 54 Tex. 328, and Bandall v.
Collins, 58 Tex. 232, both arguendo.
Question of Costs is Bes Adjndicata, where payment thereof is
imposed as terms of granting new trial.
Approved in Hall v. Beese, 26 Tex. Civ. 396, 64 S. W. 688, holding
costs res adjudicata, where continuance granted on payment of costs.
52 Tex. 443-447, HAILE ▼. OLIVEBi.
A Statutory Bond musk Conform to the Statute^ in substance, in
order that a valid summary judgment thereon may be taken.
Approved in Smith v. Holland, 4 Tex. Ap. Civ. 435, 16 S. W. 425,
foUowing rule; CoUier v. Myers, 14 Tex. Civ. 314, 37 S. W. 184,
sureties on replevin bond in sequestration proceedings not liable for
eosts.
52 Tex. 447-466 NOTES ON TEXAS REPORTS. 834
52 T6K. 447-468, WOOLDBIDGE ▼. BOUJESR.
An Aflldayit by Bankrupt's Assignee that he, as assignee, is tinable
to give bond for costs is not sufficient to authorize appeal without
bond, under Revised Statutes, art. 1408.
Approved in Stewart v. Heidenheimer, 55 Tex. 648, upholding
affidavit <in forma pauperis that affiant is unable to pay costs with-
out adding "or any part thereof"; Kirk v. Ivey, 2 Tex. Ap. Civ. 39,
affidavit on appeal need not state that affiant is not able to pay
"any part thereof"; Graves v. Horn, 89 Tex. 78, 33 S. W. 322,
arguendo.
An Affidavit of I&abllity to Pay Costs on Appeal is sufficient only
when uncontested and made before county judge of affiant's resi-
dence, or before trial court.
Approved in Thompson v. Howkins (Tex. Civ.), 38 S. W. 236,
Roberts v. Houston City St. Ry. (Tex. Civ.), 35 S. W. 66, and
Lambert v. Western Union TeL Co., 19 Tex. Civ. 415, 47 S. W. 476,
all following rule; Stewart v. Heidenheimer, 55 Tex. 646, upon ques-
tion of sufficiency of affidavit of pauper on appeal; Brock ▼. Aber-
crombie, 3 Tex. Civ. 343, 24 S. W. 668, appellant from justice's court
has ten days within which to file affidavit of inability to pay costs;
Graves v. Horn (Tex. Civ.), 33 S. W. 303, holding an affidavit alleg-
ing affiant's inability to pay costs will not be considered where
merely filed with the clerk of the court; Cox v. Wright (Tex. Civ.),
27 S. W. 294, where appellant's want of ability to give bond is not
contested, county judge need not state in his certificate the facts
upon which he allows the appeal without bond.
The Affidavit Beqnired by Bevlsed Statutes, 1401, to entitle party
to appeal without bond cannot be made before a notary.
Approved in Hearne t. Prendergast, 61 Tex. 628, following rule;
Isbell V. Everheart, 2 Tex. Ap. Civ. 575, holding affidavit made be-
fore justice of the peace after term is insufficient; Roberts ▼. Houston
City St. Ry. (Tex. Civ.), 35 S. W. 66, an affidavit showing affiant's
inability to pay costs is defective if sworn to before the clerk of the
court.
Pnipose of Statute Pennittlng Affidavit of Inability to pay costs
on appeal is to enable appellant to make prima facie proof of in-
ability to give security.
Approved in Smith v. Buffalo Oil Co., 99 Tex. 78, 87 S. W. 660,
affidavit of inability to pay costs taken before district judge, shown
by evidence in appellate court to have been taken in open court,
though affidavit does not show such fact, is sufficient.
52 Tex. 453-466, ALSTIN ▼. OUin>IFF.
Where Defendant Replies by Confession and Avoidanoa^ he is en-
titled to open and close.
Approved in Blooming etc. Oil Co. v. First Nat. Bank (Tex. Civ.),
56 S. W. 553, Smith v. Eastham (Tex. Civ.), 56 S. W. 218, and
Dugey V. Hughs, 2 Tex. Ap. Civ. 18, all following rule; Mutual etc.
Ins. Co. V. Baker, 10 Tex. Civ. 526, 31 S. W. 1077, applying principle
to admissions at trial that plaintiff had good cause of action, except
in 80 far as it might be defeated by facts pleaded and proved;
Phoenix Assur. Co. v. Munger etc. Mfg. Co. (Tex. Civ.), 49 S. W.
276, defense is confined to specific matters set up by defendant,
where he pleads a confession and avoidance.
935 NOTES ON TEXAS REPORTS. 52 Tex. 453-466
Distinguiflhed in Smith v. Traders' Nat. Bank^ 74 Tex. 545, 12 8.
W. 222^ holding, after answer in confession and avoidance, plaintiff
cannot deny defendant's right to open and close thereon by amend-
ing petition.
Ck>ii5traction of Written InstnimentB by tbe Ooart should be
based on terms of instrument, and when parol evidence ia necessary
to explain terms, construction is for jury.
Approved in Kirby v. National Loan etc. Co., 22 Tex. Civ. 260, 54
S. W. 1083, applying principle to deed absolute with condition of
repurchase; Adams v. Bateman (Tex. Civ.), 29 S. W. 1125, extrinsic
facts are not admissible to show a mortgage was meant to be an
assignment for benefit of creditors. See note, 94 Am. St. Rep. 235.
An AbBolntt Oonyeyance With Wtitten Agreement for repurchase
is a mortgage, if the relation of debtor and creditor exists; otherwise
it is a conditional sale.
Approved in Eckford v. Berry (Tex. Civ.), 27 8. W. 842, and
Miller v. Yturria, 69 Tex. 555, 7 S. W. 209, both following rule;
Hubby V. Harris, 68 Tex. 95, 98, 3 S. W. 559, 560, agreement where-
by vendee agrees to convey to party for whose benefit purchase is
made, on payment of purchase price, with interest, is a mortgage;
Peters' Saddlery etc. Co. v. Schoelkoff, 71 Tex. 420, 9 S. W. 338,
holding bill of sale, and contract of employment made simultane-
ously, not a mortgage; McCamant v. Roberts, 80 Tex. 322, 15 S. W. 581,
holding conveyance of land certificate, with defeasance, is a mort-
gage; Baker v. Collins, 4 Tex. Civ. 524, 23 S. W. 495, though instru-
ment on its face is absolute deed, if debt for which it is executed
is not extinguished, it is a mortgage; Smfth v. Anderson, 8 Tex.
Civ. 193, 27 S. W. 776, holding intention of parties showed instru-
ment was a pledge; Kirby v. Nat. Loan etc. Co., 22 Tex. Civ. 264,
54 S. W. 1085, holding absolute conveyance with condition of repur-
<;hase not a mortgage; Buse v. Page, 32 Minn. 115, 19 N. W. 737,
holding deed absolute with agreement for reconveyance a mortgage;
Eorbes v. Thomas (Tex. Civ.), 51 S. W. 1100, a mortgage is valid
against a homestead conveyed to grantee for the purpose of raising
money upon it; McKeen v. James (Tex. Civ.), 23 S. W. 462, holding
instrument executed as security for money is a mortgage. See notes,
4 Am. St. Rep. 699, 700; 94 Am. St. Rep. 237.
A Pre-ezi8ting Debt is Snfllclent Consideration, as against prior
equities of third parties, to support conveyance to one having no
knowledge of equities, where the indebtedness is canceled.
Approved in Smith v. Cassidy, 73 Tex. 164, 12 S. W. 15, follow-
ing rule; Herman v. Gunter, 83 Tex. 69, 29 Am. St. Refk 635, 18 S.
W. 429, purchaser of note in payment of pre-existing debt is pur-
chaser for value; Watkins v. Sproull, 8 Tex. Civ. 432, 28 S. W. 358,
holding knowledge of attorney that deed absolute on face is mort-
gage is not notice to purchaser, where attorney drafted deed;
Rameriz v. Smith, 94 Tex. 191, 59 S. W. 260, holding possession by
heir of land held in trust sufficient to place subsequent mortgagee
on inquiry, though mortgagor held legal title; Rice v. Soders, 1
Posey U. C. 619, 621, crediting on pre-existing debt due vendor's
firm price of land conveyed to partner is sufficient consideration
to support conveyance of land to vendee without notice of prior
equities; Dunlap v. Green, 60 Fed. 249, holding purchaser surrender-
52 Tex. 466-504 NOTES ON TEXAS REPORTS. 936
ing note as consideration for conveyance is purchaser for valne.
See note, 36 L. R. A. 335, 336.
62 Tex. 466-477, OENTBAI. ETC. B. B. ▼. HENKING.
Section 35, Article 16, Oonstitation of 1876, did not give railroad
laborers a mechanic's lien on property on which they labored.
Approved in Houston etc. R. R. v. Shirley, 54 Tex. 144, arguendo.
See notes, 78 Am. Dec. 698; 8 L. R. A. 705.
Wbere New Oaiue of Action set up in amended complaint, defend-
ant is entitled to continuance to meet new matter.
Approved in Chicago etc. Ry. Co. v. Groner, 100 Tex. 416, 100 8.
W. 138^ holding second continuance allowable to defendant where new
cause of action eet up by amendment.
52 Tex. 481-498, JOHNSON ▼. BICHABDSON.
It is No Error for tbe Oonrt to Instmct the Jury that various cir-
cumstances were badges of fraud, where the issue is not as to the
fraudulent intent, but as to the existence of fraud.
Approved in Lewis v. Alexander (Tex. Civ.), 31 S. W. 416, evidence
of insolvency of a trustee, and his lack of skill or special knowledge
required to execute the trust, is admissible, an^ no error to charge
upon the issues so raised.
Witness Testifying by Deposition that if certain conversation
occurred he did not recollect it, cannot be impeached by proving con-
versation by another.
Approved in Cabell v. Holloway, 10 Tex. Civ. 310, 31 S. W. 203,
holding contradictory evidence for purpose of impeachment inad-
missible where no predicate laid for impeachment.
A Juror is not Disqualified by fact that his sister and niece are
wives of two brothers of party to suit.
Approved in Bigelow v. Sprague, 140 Mass. 429, 5 N. E. 146, hold-
ing marriage of uncle of plaintiff to aunt of juror does not disqualify
latter; State v. Wall, 41 Fla. 467, 79 Am. St. Rep. 198, 26 So. 1021,
49 L. R. A. 548, holding husband of aunt or niece disqualified from
sitting as judge in suit where either is interested; Doyle v. Com-
monwealth, 100 Ya. 811, 40 S. E. 926, fact that uncle of juror was
brother in law of uncle by marriage of prosecuting witness does not
disqualify juror. See notes, 9 Am. St. Rep. 755; 79 Am. St. Rep.
203.
A General Verdict may be Sui&cient when sufficiently responsive
to main issue, though special findings were directed.
Approved in Gulf etc. Ry. ▼. James, 73 Tex. 18, 15 Am. St. Rep. 746,
10 S. W. 745, upholding verdict in tort against one defendant, and
silent as to others.
52 Tex. 498-604, SWIFT ▼. TBOTTI.
Where Judgment is Rendered on Last Day of Term, and certificate
of judge to statement of facts filed after term states failure of coun-
sel to agree on statement, but did not state agreement that it might
be filed after term, the statement is no part of record on appeal.
Approved in Farrar v. Bates, 55 Tex. 197, holding bill of excep-
tions not filed during term at which cause tried is not part of record
on appeal; Trewltt v. Blundell, 59 Tex. 254, refusing to consider
statement of facts filed in vacation.
937 NOTES ON TEXAS BEPORTS. 52 Tex. 504-547
An Account Created In 1861 was barred in 1874, without reference
to date of debtor's death, or grant of letters on his estate.
Approved in Gassiano v. Galveston etc. By. Co. (Tex. Civ.), 82 S.
W. 807y railroad ticket making no provision as to time of its use is
subject to limitations which run from date of issue; Henry v. Boe,
83 Tex. 449, 18 S. W. 808, holding holder of demand negotiable note
may sue without demand.
62 Tez. 504-511, MANHATTAN LIFE INS. CO. ▼. LE PEBT.
Wliere New York Insurance Company insures resident of Galves-
ton, and during Civil War resident agent refuses to receive premiums
when tendered, the tender does not prevent forfeiture for failure to
pay subsequent premiums.
Approved in Sovereign Camp Woodmen of the World v. Hicks, 37
Tex. Civ. 426, 84 S. W. 426, holder of benefit certificate not suspended
from order for not paying monthly dues, where he failed to do so be-
cause clerk who received them was out of town, or there was no
clerk; Continental Ins. v. Busby, 3 Tex. Ap. Civ. 129, holding com-
pany must inform insured in unmistakable terms that policy canceled
for nonpayment of premiums; Union Central etc. Ins. Co. v. Chow-
ning, 8 Tex. Civ. 460, 28 S. W. 119, holding premium note after ma-
turity, and demanding payment, not waiver of forfeiture.
52 Tez. 511^29, LABEDO ▼. McDONNELL ETC. CO.
The Ratification of a Former Act is not binding unless the act re-
lied on as constituting the ratification is done with a full knowledge
of all the circumstances surrounding the original act.
Approved in Smith v. Estell, 87 Tex. 271, 28 S. W. 805, applying
principle to location of land certificate.
A Sesolutlon of a Council that it was the intent of parties to con-
vey certain lots does not validate the conveyance nor ratify the un-
authorized act of the mayor in selling the lots.
Approved in Waterbury v. Laredo, 60 Tex. 522, upholding contract
for employment of attorney in matters relating to establishment of
ferry, whereby attorney received percentage of receipts; Waterbury
V. Laredo, 68 Tex. 573, 5 S. W. 83, arguendo.
62 Tex. 530-534, HIBBEBT ▼. ATLOTT.
A Tenant Contracting by Parol for Porcliaee of Land, the deed to
be delivered at end of lease, makes sufficient part performance, with
landlord's consent, by removing old buildings and erecting valuable
buildings in their stead, and tendering purchase money.
Approved in Texas etc. By. v. O'Mahoney (Tex. Civ.), 50 S. W.
1050, following rule. See notes, 53 Am. Dec. 542; 3 L. B. A. (n. 8.)
811.
62 Tex. 584-^47, McMANUS ▼. WALIJS.
Wliere a Statement of Facte la Made by the Judge, the parties can-
not object to the manner in which it is done.
Approved in Dwyer v. Testard, 1 Tex. Ap. Civ. 706, following rule;
Hess V. State, 30 Tex. Ap. 479, 17 S. W. 1099, applying principle to
criminal appeal; Gurrero v. State, 41 Tex. Cr.-163, 53 S. W. 119, 120,
signature by judge after an agreement by counsel as to the correct-
ness of a statement la a sufficient approval.
62 Tex. 548-562 NOTES ON TEXAS BEPORTS. 938
»
The Appeal may be Dismissed where the appellant's brief does not
enable the court to decide the ease upon it, without reference to the
transcript.
ApproTed in Vaughn v. G. C. & S. P. By., 3 Tex. Ap. Civ. 280, hold-
ing appellant's brief need not set out assignment of errors; E[rick
T. Dow (Tex. Civ.), 84 S. W. 245, assignment of errors to exclusion
of evidence is insufficient where it does not appear from assignment
or statement thereunder what evidence was; Cage v. Tucker, 25 Tex.
Civ. 50, 60 S. W. 580, as to what is proper assignment of error.
Where the Statement of Facts is Bfade by the Judge Alone, the
presumption is that counsel failed to agree.
Approved in Willis v. Smith, 17 Tex. Civ. 549, 43 S. W. 328, follow-
ing rule; Lozano v. State (Tex. Cr.), 81 S. W. 37, statement of facts
marked "approved" and signed by judge is sufficient certificate of
statement of facts made by judge; Schneider v. Stephens, 60 Tex.
420, holding, where statement signed by one counsel is certified by
judge, presumption is that it is properly certified.
Plaintiff in Malicions Prosecution must show prosecution, end of
prosecution, falsity of charge, want of probable cause, malice, and
damage.
Approved in Glasgow v. Owen, 69 Tex. 171, 6 S. W. 531, Hurlbut v.
Boaz, 4 Tex. Civ. 376, 23 S. W. 448, and Breneman v. West, 21 Tex.
Civ. 21, 50 S. W. 471, all following rule; Von Koehring v. Witte, 15
Tex. Civ. 647, 40 S. W. 63, holding no action for malicious prosecution
for perjury lies where prosecution still pending; Dempsey v. State,
27 Tex. Ap. 271, 11 Am. St. Bep. 195, 11 S. W. 373, upholding indict-
ment for extortion.
62 Tez. 648-562, LAREDO ▼. MABTIK.
No Appeal Lies from Action of District Court refusing injunction.
Approved in Ellis v. Harrison, 24 Tex. Civ. 16, 56 S. W. 593, follow-
ing rule; Grigsby v. Bowles, 79 Tex. 141, 15 S. W. 31, 11 L. R. A.
398, mandamus does not lie to compel district judge to certify his
disqualification to governor.
A Ferry Franchise is Established by Prescription where evidence
shows that city maintained ferry from time immemorial.
Approved in Austin v. Hall (Tex. Civ.), 58 S. W. 1038, holding
long-continued use of channel of navigable river raises presumption
of grant from state of tight to a ford across it. See note, 59 L. B. A.
516.
The Constitntion Did not Abrogate Bight of municipality to main-
tain ferry where right was conferred under "Vicita general" at found-
ation of city.
Approved in Waterbury v. Leredo, 60 Tex. 522, upholding contract
between city and attorney to pay percentage of ferry receipts as
compensation for services; Laredo v. International Bridge etc. Co.,
66 Fed. 249, upholding contract between city and bridge company,
whereby city agreed not to exercise ferry franchise for certain sum;
Waterbury v. Laredo, 68 Tex. 573, 579, 5 S. W. 83, 86, arguendo. See
note, 59 L. B. A. 522.
General Law Does not Impliedly Bepeal special law on same subject
matter.
Approved in Ex parte Keith, 47 Tex. Cr. 286, 83 S. W. 685, Terrell
election law did not repeal local option law; dissenting opinion in
Ex parte Young, 49 Tex. Cr. 649, 95 S. W. 105, majority holding
939 NOTES ON TEXAS REPORTS. 52 Tex. 562-575
where, after death sentence, defendant appealed and judgment af-
firmed, and mandate not deliyered to clerk of district court of Will-
iamson county until after regular term, court eould call special term
to impose death sentence.
52 Tex. 562-668, SOLYEB ▼. BOMANET.
A Oertlficata of Acknowledgment by Married Woman is sufficient
If, after stating privy examination, it declares that she "willingly
signed, sealed, and delivered the same, and that she wished not to
retract it."
Approved in Coombes ▼. Thomas, 57 Tex. 322, Gray v. Kauffman,
S2 Tex. 69, 17 8. W. 515, and Thompson v. Johnson, 84 Tex. 553, 19
S. W. 785, all following rule. See note, 41 Am. Dec. 182.
Courts Take Judicial Notice that Galveston is in county of same
name, in state of Texas.
Approved in United States v. Williams, 6 Mont. 389, 12 Pac. 855,
holding courts take judicial notice of rules of Department of Interior.
See notes, 89 Am. Dec. 677; 49 Am. Rep. 202; 82 Am. St. Rep. 443; 4
L. B. A. 44.
52 Tex. 568-571, WABBEN ▼. WOOTEB8.
Affidavit of Party Desiring to Appeal without cost bond must be
made before trial judge, or county judge of county of affiant's resi-
-dence.
Approved in Graves ▼. Horn (Tex. Civ.), 33 S. W. 303, and Isbell
▼. Everheart, 2 Tex. Ap. Civ. 575, both following rule.
52 Tez. 671^75, PEBBZ ▼. GABZA.
Judgment will be Affirmed, where appellant abandons his appeal by
filing writ of error on day when in compliance with appeal bond he
should have filed transcript.
Approved in Scottish Union etc. Ins. Co. v. Clancey, 91 Tex. 469,
470, 471, 44 S. W. 483, Barber v. Sabine etc. Ry., 9 Tex. Civ. 93, 28
S. W.-274, Knox v. Earbee (Tex. Civ.), 31 S. W. 532, and Filhol v.
Blum Land Co., 19 Tex. Civ. 688,49 S. W. 670, all following rule; Welch
V. Weiss, 40 Tex. Civ. 259, 90 S. W. 161, where appellee entitled to
affirmance for failure to file transcript in time, right to affirmance
not denied because appellant had sued out writ of error after such
default; Johns v. Phoenix Nat. Bank, 6 Ariz. 297, 56 Pac. 727, dis-
missal of appeal for failure to file additional appeal bond, as re-
<)uired by trial court, bars writ of error; Eppstein v. Holmes, 64 Tex.
563, 564, holding party may, in good faith, appeal and sue out writ
of error; Thompson v. Anderson, 82 Tex. 238, 18 8. W. 154, permit-
ting party appealing, but not prosecuting, appeal to file writ of error;
Davidson v. Ikard, 86 Tex. 68, 23 S. W. 380, filing writ of error pend-
ing motion to affirm does not defeat latter; Schonfield v. Turner
(Tex. Sup.), 6 8. W. 630, guardian is entitled to a writ of error after
perfecting his appeal, though failing to prosecute it; Blackman v.
Harry (Tex. Civ.), 45 S. W. 611, an appeal duly perfected cannot
be abandoned; Davis v. Estes, 4 Tex. Civ. 209, 23 S. W. 412, motion
to affirm judgment not defeated by filing writ of error after term; Es-
tado Land ete. Co. v. Ansley, 6 Tex. Civ. 187, 24 S. W. 934, where
appeal not perfected, defendant may resort to writ of error.
Distinguished in Texas etc. Ry. v. Hare, 4 Tex. Civ. 20, 21, 23 S.
W. 43, permitting writ of error after appeal with bond dismissed for
want of prosecution; Thomas t. Thomas, 57 Tex. 517^ arguendo.
52 Tex. 575-587 NOTES ON TEXAS EEPOETS. 940
»
52 Tex. 576-580, 36 Am. Bep. 727, KESSLEB ▼. DRAUB.
A Homestead Is Exempt in Faror of Surviving Hnsband so long as
he continues his residence thereon, though without seryants or any-
one with him.
Approved in Schneider v. Bray, 59 Tex. 670, Watkins v. Davis, 61
Tex. 416, and Stults v. Sale, 92 Ky. 9, 36 Am. St. Rep. 577, 17 S. W.
149, 13 L. B. A. 743, all following rule; Stone v. MeClellan, 36 Tex.
Civ. 366, 81 S. W. 753, where divorce decree awarded wife minor
children and use of homestead for life, and she remarried and died,
and husband resumed custody of children, homestead not subject to
judgment lien against him; Blum v. Gaines, 57 Tex. 121, 123, holding
subsequent death of all household except husband does not subject
homestead to forced sale while he occupies it as such; Zapp v. Stroh-
meyer, 75 Tex. 639, 13 S. W. 10, holding, where divorced husband
living with child, land exempt as homestead; Childers v. Henderson^
76 Tex. 667, 13 S. W. 482, holding homestead not liable to admin-
istration where daughter lived with father at his death; Bahn v.
Starcke, 89 Tex. 208, 59 Am. St. Rep. 45, 34 S. W. 106, holding di-
vorce court cannot decree life estate in homestead to wife; Reed v.
Talley, 13 Tex. Civ. 290, 35 S. W. 807, devise of wife does not affect
husband's right to use and occupation of homestead; Evans v. Pace,
21 Tex. Civ. 370, 51 S. W. 1095, business homestead continues ex-
empt to widow while she continues business; Leland v. Chamberlin
(Tex. Civ.), 60 S. W. 436, holding where homestead sold and proceeds
used in improving subsequent homestead latter is exempt; Stanley v.
Snyder, 43 Ark. 433, holding homestead - right not lost by death of
wife and maturity of children; Griffin v. Nichols, 51 Mich. 579, 17
N. W. 64, action for divorce against husband does not terminate his
homestead rights. See notes, 60 Am. Dec. 609; 67 Am. Dec. 645; 36
Am. St. Rep. 578; 87 Am. St. Rep. 305, 711; 16 L. R. A. (n. s.) 113;
4 L. R. A. (n. s.) 390; 13 L. R. A. 743.
Distinguished in FuUerton v. Sherrill, 114 Iowa, 515, 87 N. W. 420,
widow who purchased house after husband's death and lived therein
with daughters until they married and moved, and thereafter con-
tinued to live in home, cannot claim homestead exemption after
daughters left.
62 Tex. 581-^87, FEVITO ▼. B0DGEB8.
An Appeal Lies to the Supreme Court from a judgment of the dis-
trict court dismissing a justice's court appeal when the amount of
the judgment was more than twenty dollars.
Approved in Davidson v. Patton, 57 Tex. 481, holding supreme
court has appellate jurisdiction where district court has original or
appellate jurisdiction.
Limitation of Section 16, Article 5, of the Oonstitution, on appeals
from county courts in justice's court appeals, applies only when there
has been a trial de novo on merits and recovery was less than one
hundred dollars.
Approved in Southern Kansas By. Co. v. Cooper, 96 Tex. 483, 73
S. W. 948, upholding jurisdiction of court of civil appeals over appeal
from district court in case originating in justice court irrespective
of amount in controversy; Williams v. Sims, 4 Tex. Ap. Civ. 216,
16 S. W. 786, upholding appeal from county court on justice's court ap-
peal without trial de novo; Taylor v. State, 16 Tex. Ap. 516, applying
principle to criminal prosecution where fine was twenty-five dollars;
941 NOTES ON TEXAS REPOBTS. 52 Tex. 587-602
Johnson v. State, 26 Tex. Ap. 397, 398, 9 S. W. 612, dismissing crim-
inal appeal from district court appeal on trial de novo where fine
was five dollars; Green v. Warren, 18 Tex. Civ. 549, 45 S. W. 608,
upholding jurisdiction of court of civil appeals on appeal from judg-
ment of justice of the peace for sixty dollars.
Distinguished in Southern Kansas By. Co. v. Cooper (Tex. Civ),
72 S. W. 411, denying jurisdiction of court of civil appeals over ap-
peal from district court in case originating in justice's court where
amount involved was less than one hundred dollars; Gulf etc. By.
V. Werchan, 3 Tex. Civ. 480, 23 S. W. 30, upholding jurisdiction of
court of appeals where no trial de novo on appeal from justice's
court to county court and judgment over twenty dollars; Allen v.
Hall, 25 Tex. Civ. 178, 179, 60 S. W. 586, holding no appeal lies
from county court to court of civil appeals unless amount is over
one hundred dollars; Oulf etc. By. v. Bowley (Tex. Civ.), 22 S. W.
183, holding court of civil appeals has jurisdiction of appeals from
county court only when the judgment appealed from exceeds one
hundred dollars.
Limited in Gulf etc. By. Co. ▼. Cunnigan, 95 Tex. 440, 442, 67
8. W. 889, 890, courts of civil appeals have jurisdiction of appeals
from county courts in cases commenced in justice courts where
amount sued for exceeded one hundred dollars, though judgment ap-
pealed from was for less.
62 Tex. 587-602, SOUTHEBN COTTON PBE88 ETC. OO. T. BBAD-
Ahsence of Female Witness not ground for continufince where dili-
gence not used to take her deposition.
Approved in Doxey v. Westbrook (Tex. Civ.), 62 S. W. 788, hold-
ing affidavit must show that affiant intends to procure attendance of
witnesses at next term.
Court will Take Judicial Notice of a municipal charter which has
the force and effect of a public act.
Approved in Austin v. Colgate (Tex. Civ.), 27 S. W. 896, courts
must take judicial notice of a city charter, which is made a public
law by its provisions.
Exemplary Damages are Giren as a Punishment to the offender,
and not as recompense for injury.
Approved in dissenting opinion in Brooke v. Clark, 57 Tex. 115,
117, majority allowing exemplary damages against physician for
malpractice.
Negligence Is the Want of Care and Diligence which ordinarily
prudent men would use to prevent injury under the circumstances of
the particular case.
Approved in Galveston etc. By. v. Cook (Tex. Sup.), 16 S. W.
1039, Gulf etc. By. v. Letsch (Tex. Civ.), 40 S. W. 182, Galveston
etc. By. Co. v. Simon (Tex. Civ.), 54 S. W. 310, and Texas etc.
By. V. Gorman, 2 Tex. Civ. 146, 21 8. W. 158, all following rule;
Gulf etc. By. v. Hodges, 76 Tex. 93, 13 S. W. 65, applying principle
to duty of railroad in moving trains; Gulf etc. By. v. Smith, 87
Tex. 354, 28 S. W. 522, applying principle to passenger crossing
track; Galveston etc. By. v. Bonnet (Tex. Civ.), 38 S. W. 815, negli-
gence vel non is tested by the common experience of mankind; San
Antonio etc. By. v. Safford (Tex. Civ.), 48 S. W. 1106, holding by
"negligence" is meant what a prudent man would ordinarily do.
52 Tex. 603-611 NOTES ON TEXAS REPORTS. 942
Gross Negligence is That Want of Oare which would raise a pre-
sumption of a conscious indifference to consequences.
Approved in Missouri Pac. Ry. v. Shuford, 72 Tex. 170, 10 8. W.
411, Dallas etc. R. R. v. Beeman, 74 Tex. 294, 11 S. W. 1103, 5 L. R.
A. 176, McDonald v. International etc, R. Co. (Tex. Civ.), 21 S. W.
775, and Redington y. Pacific etc. Gable Co., 107 Cal. 324, 48 Am. St.
Rep. 137, 40 Pac. 434, all following rule; Galveaton etc. Ry. v. Cook
(Tex. Sup.), 16 S. W. 1039, and Texas etc. Ry. v. Hill, 71 Tex. 458,
9 S. W. 352, both holding court must define gross negligence when
action is for injuries by gross negligence of servants; Galveston etc.
Ry. V. Arispe, 81 Tex. 519, 17 8. W. 48, and Allison v. Haney (Tex.
Civ.), 62 S. W. 934, both arguendo. See note, 11 L. R. A. 690.
Revised Statntea, Article 2009, refers to damages for the respective
losses to the surviving relatives, resulting from the death.
Approved in Houston etc. Ry. v. Cowser, 57 Tex. 301, holding actual
pecuniary injury not confined to child's minority; international etc.
Ry. V. Kuehn, 2 Tex. Civ. 217, 21 S. W. 61, holding minor's measure
of damages is what he could reasonably expect to receive from
father during his life. See notes, 48 Am. Dee. 638; 12 Am. St.
Rep. 377; 13 L. R. A. 860.
The Judge Should not Interline and Erase a requested charge with-
out the consent of the attorney presenting it.
Approved in Missouri etc. Ry. v. Williams, 75 Tex. 8, 16 Am. St.
Rep. 870, 12 S. W. 837, holding the precise alteration of requested
charge should be shown.
Modified in Gulf etc. Ry. Co. v. Davis, 35 Tex. Civ. 287, 80 S. W.
254, court may modify charge asked by party and give it to jury
without rewriting whole charge.
52 Tex. 60S-611, 36 Am. Sep. 730, WILLIAMS T. BALL.
A Domestic Judgment of a Court of general jurisdiction is pre-
sumed valid unless the contrary is shown by the record.
Approved in Koehler v. Earl, 77 Tex. 191, 14 S. W. 29, following
rule; Stephens v. Turner, 9 Tex. Civ. 628, 29 S. W. 939, justice's
court judgment presumed regular on collateral attack, where return
to service destroyed.
Probate Courts are Courts of Oeneral Jurisdiction in matters of
administration.
Approved in Mnrehison v. White, 54 Tex. 82, presumption of juris-
diction of probate court in administration proceedings is conclusive
on collateral attack; Murchison v. White, 54 Tex. 83, holding county
court is court of general jurisdiction with reference to probate;
McNally v. Haynes, 59 Tex. 585, holding purchaser at probate sale
chargeable with notice of transaction of power apparent on record;
Heath v. Layne, 62 Tex. 691, holding administrator's sale under
order to sell for cost when not so made is only voidable; Chapman
V. Brite, 4 Tex. Civ. 511, 23 S. W. 516, appointment of administrator
by county court not collaterally attackable unless want of jurisdic-
tion apparent on record.
Justices' Courts Exercise Oeneral Jurisdiction within their defined
limits.
Approved in Wakefield v. King, 2 Tex. Ap. Civ. 612, following
rule; Gaines v. Newbrough, 12 Tex. Civ. 469, 34 S. W. 1049, county
commissioners' court is court of general jurisdiction within sphere
943 NOTES ON TEXAS EEPOBTS. 52 Tex. 603-611
of its powers, and its judgment fining road overseer for contempt is
judicial action for which members not personally liable; Heck v.
Martin, 75 Tex. 472, 16 Am. St. Bep. 918, 13 S. W. 52, denying right
to show want of service where justice's judgment recites service;
Clayton v. Hurt, 88 Tex. 598, 32 S. W. 877, holding in forcible entry
and detainer cases justice's court exercises its' ordinary judicial
functions; Yarborough v. Chamberlin, 1 Tex. Ap. Civ. 632, holding
in forcible entry the complaint must show that premises are in jus-
tice's precinct; Davis v. Bargas, 12 Tex. Civ. 64, 33 S. W. 549, up-
holding judgment of justice of the peace where docket entries very
meager. See note, 16 Am. St. Bep. 919.
Judgments of Justice's Oonrt^ when rendered in ordinr.ry scope of
its power, cannot be collaterally attacked though it may not show
all jurisdictional facts.
Approved in Holmes v. Buckner, 67 Tex. 108, 2 S. W. 453, and
Anderson v. Boberts (Tex. Civ.), 35 8. W. 417, and Hance v. Gal-
veston Wharf Co., 70 Tex. 115, 8 S. W. 77, all following rule; Burns
V. Barker, 31 Tex. Civ. 83, 71 S. W. 329, justice court judgment
reciting that defendant duly and legally cited not collaterally at-
tackable by showing service had on legal holiday; Smith v. Bidley,
30 Tex. Civ. 159, 70 S. W. 236, in absence of contrary showing on
face of justice court judgment, presumed on collateral attack that
facts authorizing judgment existed; Long v. Brenneman, 59 Tex.
212, denying collateral attack on justice court judgment, which recites
that defendant was duly cited; Crawford v. McDonald, 88 Tex. 632,
33 S. W. 328, holding confirmation of probate sale cannot be attacked
by evidence outside the record; Whitney v. Krapf, 8 Tex. Civ. 306,
see 27 S. W. 844, mere irregularities in default judgment not avail-
able on collateral attack when defendant did not seek to set it
aside; Hambel v. Davis (Tex. Civ.), 33 S. W. 251, a judgment of a
justice of the peace court is presumed to be valid on collateral
attack; Tucker v. Pennington (Tex. Civ.), 45 S. W. 314, default judg-
ments of a justice's court are admissible though they fail to embody
the return. See notes, 32 Am. St. Bep. 256; 59 Am. St. Bep. 117.
Distinguished in Wilkerson v. Schoonmaker, 77 Tex. 617, 618, 19
Am. St. Bep. 806, 807, 808, 14 S. W. 224, 225, admitting evidence to
disprove service where justice's record silent.
Wliere Only Variance Between Bzecntion and Judgment is in the
amount due, it is not subject to collateral attack to affect rights of
execution purchaser.
Approved in Collins v. Hines, 100 Tex. 307, 99 8. W. 401, justice
court execution leaving blank in body name of plaintiff recovering
judgment, not void where name appeared on indorsement; Jackson
V. Finlay (Tex. Civ.), 40 S. W, 429, an execution is not void because
issued for a greater amount than was due; Halfin v. Winkleman,
83 Tex. 167, 18 S. W. 433, upon question of materiality of variance
between vendor's lien note as offered in evidence and as described
in petition.
Distinguished in Battle v. Guedry, 58 Tex. 115, holding execution
against "P. B. C." not supported by judgment against "J. P. C";
Irvin V. Ferguson, 83 Tex. 495, 18 S. W. 821, setting aside execution
sale where execution does not properly describe judgment, and there
is inadequacy of price.
52 Tex. 612-620 NOTES ON TEXAS EEPOBTS. 944
It is Discretionary Wltb the Trial Judge to permit plaintiff ta
introduce testimony after the case is closed.
Approved in Myers v. Maverick (Tex. Civ.), 27 S. W. 1083, intro-
duction of evidence is discretionary with the trial judge.
52 Tex. 612-620, AFFOBD ▼. WELLS.
Claim as Heirs of Original Grantee of land and of his wife hy
general allegation states prima facie case in trespass to try title.
Approved in White v. Cole, 9 Tex. Civ. 281, 29 S. W. 1149, and
Polk V. Kyser, 21 Tex. Civ. 680, 53 S. W. 90, both arguendo.
Though a Subsequent Purchaser is proper party in suits to enforce
prior liens, he may not be necessary party except to bar his equity
ef redemption.
Approved in Beagan v. Evans, 2 Tex. Civ. 41, 21 S. W. 429, follow-
ing rule; Foster v. Powers, 64 Tex. 249, holding purchaser at fore-
closure sale of vendor's lien .may maintain trespass to try title
against subsequent vendee in possession; O'Bourke v. Clopper, 22
Tex. Civ. 380, 54 S. W. 931, judgment foreclosing vendor's lien not
invalid because subvendee not a party.
"Wliere Superior Title Remains in Plaintiff in foreclosure, and title
of subsequent purchaser is subordinate thereto, failure to make him
a party to enforcement of lien for purchase money against original
vendee does not prejudice plaintiff's title.
Approved in Bobinson v. Kampmann, 5 Tex. Civ. 608, 24 S. W.
530, following rule; Bobinson v. Black, 56 Tex. 218, holding assignee
of purchase money mortgage need not make party in possession a
party to foreclosure; Thompson v. Bobinson, 93 Tex. 170, 77 Am.
St. Bep. 847, 54 8. W. 245, purchaser at foreclosure of vendor's lien
is subrogated to rights of vendor; Gardener v. Griffiths, 93 Tex.
358, 55 8. W. 315, purchaser at foreclosure may rescind executory
sale of land for nonpayment of price as against subsequent pur-
chaser of vendee; Evans v. Bentley, 9 Tex. Civ. 114, 29 8. W. 498,
holding vendor not devested of superior title by foreclosure suit
against husband when he conveyed land to wife and took husband's
note.
When Mortgage Is Given Slmultaneoiisly With Deed to secure pur-
chase money, superior title remains in vendor, and subsequent pur-
chaser is charged with notice of what is apparent on face of chain
of title, and takes subject to superior title.
Approved in Kennedy v. Embry, 72 Tex. 390, 10 8. W. 89, hold-
ing vendor may rescind contract of sale after expiration of time of
performance without notice; Stone etc. Cattle Co. v. Boon, 73 Tex.
555, 556, 11 8. W. 547, vendor retaining lien may sue second pur-
chaser with notice either for land or to foreclose lien; Spencer v.
Jones, 92 Tex. 520, 71 Am. St. Bep. 874, 50 8. W. 120, holding pur-
chaser with no notice of agreement between vendor and secret part-
ner gets title; Bhine v. Hodge, 1 Tex. Civ. 371, 21 8. W. 141, fore-
closure of implied vendor's lien does not affect title of vendee's pur-
chaser in possession, unless he be a party; Bradford v. Knowles, 86
Tex. 509, 25 8. W. 1118, McDonald v. Miller, 90 Tex. 311, 39 S. W.
95, and Dunlap v. Green, 60 Fed. 248, arguendo.
Where Original Vendor Brings Suit to Foreclose Equity of redemp-
tion under mortgage to secure purchase money, the superior title of
vendor prevails in contest of title.
945 NOTES ON TEXAS BEPORTS. 52 Tex. 621-638
Approved in Bradford v. Knowles (Tex. Civ.), 24 8. W. 1097, and
purchaser at foreclosure has superior title to vendee from mortgagor
after execution of the mortgage; Pierce v. Moreman, 84 Tex. 600,
601, 20 8. W. 822, holding subvendee not .party to foreclosure pro-
ceedings may tender amount of foreclosure and redeem land.
Distinguished in Williamson v. Conner, 92 Tex. 583, 50 S. W. 698,
rights of married woman as owner of land subject to vendor's lien
not affected bj foreclosure against husband where she is not party.
Miscellaneous. — Sedgwick v. Patterson, 2 Posey U. C. 353, mis-
cited to the point that statutes permitting liens must be followed
strictly.
52 Tex. 621-688, FOOL ▼. 8ANFOBD.
IntezToner must hare Snch Interest that he can recover in suit
in own name, or that he can defeat recovery if suit brought against
him.
Approved in Del Bio etc. Loan Assn. v. King, 71 Tex. 732, 12 S.
W. 66, Jaifray v. Meyer, 1 Tex. Ap. Civ. 790, and Fisher v. Hogarth,
2 Tex. Ap. Civ. Ill, all following rule; Bangs v. Sullivan, 33 Tex.
Civ. 38, 73 8. W. 79, determining right of stockholder of insolvent cor-
poration to intervene in action by reorganization committee to enforce
agreement made by mortgagee; Fleming v. Seeligson, 57 Tex. 533, pur-
chaser at trust sale of interest of one of parties to suit may inter-
vene; By an v. Ooldfrank, 58 Tex. 358, one whose property is attached
for another's debt must file claimant's bond and cannot intervene;
Irvin V. Ellis, 76 Tex. 167, 13 S. W. 23, permitting claimant of
sequestered property to intervene; Stansell v. Fleming, 81 Tex. 298,
16 S. W. 1035, holding creditor cannot intervene in suit on note by
one former partner against another; Jaffray v. Meyer, 1 Tex. Ap.
Civ. 791, claimant under deed of assignment cannot intervene;
Earnest v. Moline Plow Co., 8 Tex. Civ. 162, 27 S. W. 735, permitting
intervention by indorser of note given by intervener as collateral;
Polk V. King, 19 Tex. Civ. 668, 48 S. W. 602, landlord may inter-
vene in suit for foreclosure of chattel mortgage on property covered
by his lien; Beddick v. Elliot (Tex. Civ.), 28 S. W. 43, purchaser
at a sheriff's sale cannot intervene in action by landlord against
tenant; Williams v. Bailey (Tex. Civ.), 29 S. W. 835, third parties
eannot recover, by intervention, damages for conversion when not
affected by the original judgment. See note, 35 L. B. A. 773.
The Bight to a Mechanic's Lien depends om substantial compli-
ance with statute.
Approved in Lee v. O'Brien, 54 Tex. 636, holding bill of particulars
must be recorded, and copy served on party owing debt, to fix lien.
The Requisites of tlie Statute conferring mechanic's lien must be
pleaded in petition for enforcement of lien.
Approved in Sedgwick v. Patterson, 2 Posey U. G. 353, petition
must show recordation of bill of particulars.
An Exhibit Filed With a Flea can only be looked to in aid and
explanation of special allegations in plea.
Approved in Malin v. McCutcheon, 33 Tex. Civ. 390, 76 S. W. 588,
and Miles v. Mays, 4 Tex. Ap. Civ. 170, 16 S. W. 541, both following
rule; Borden v. City of Houston, 26 Tex. Civ. 33, 62 8. W. 428,
applying rule in suit for taxes against several owners of separate
parcels.
8 Tex. Notefr— 60
52 Tex. 638-650 NOTES ON TEXAS BEPOBTS. 946
To Entitle Subcontractor to Subrogation to rights of principal
contractor the atatutory notice in the natare of a garnishment must
be given.
Approved in Sens v. Trentune, 54 Tex. 220, laborer working for
contractor must give owner notice to acquire lien; I. & G. N. B. B,
V. Hutchins, 1 Tex. Ap. Civ. 123, holding owner not liable to sub-
contractor where no privity of contract shown.
Where Subcontractors are About to Abandon Work and owner
agrees to pay if they continue, they are subrogated to rights of
original contractor with reference to liens, the latter promise being
without the statute of frauds.
Approved in Green v. Dallahan, 54 Tex. 286, holding request by
owner to furnish lumber to contractor not within statute of frauds.
See notes, 22 L. B. A. (n. s.) 1080; 15 L. B. A. (n. s.) 233.
Tez. 638-641, SHEPHABD T. BABNETT.
Petition Showing Public Nuisance and also depreciation in valna
of lot consequent on obstruction of lot bounding lot is sufficient to
show particular injury to plaintiff.
Approved in Corporation of Seguin ▼. Ireland, 58 Tex. 185, Individ^
ual owning property abutting on public square may prevent use in-
consistent with dedication where his property injured; San Antonio
v. Strumberg, 70 Tex. 369, 7 S. W. 755, interference with mere public
right cannot be restrained by one who does not sustain damage
peculiar to himself; Bichardson v. Lone Star Salt Co., 20 Tex. Civ.
489, 49 S. W. 648, failure to object while expensive permanent ob-
struction to street is made does not estop party sustaining special
damage from maintaining abatement.
Distinguished in Hulse v. Powell, 21 Tex. Civ. 473, 51 S. W. 863,
holding one not sustaining special damages cannot enjoin cutting
shade trees in park.
62 Tex. 641-660, WOIiFE v. BUOKI^EY.
Adoption of Orphan Grandchild of Former Husband, who was
dependent on widow, though after levy on homestead, does not con-
stitute fraud on creditors, though adoption made to strengthen home-
stead claim.
Approved in American Nat. Bank ▼. Cruger, 31 Tex. Civ. 24, 71 8.
W. 789, upholding homestead right of unmarried woman maintaining
nephews and nieces living with her though they had property of
their own; Adams v. 'Clark, 48 Fla. 211, 37 So. 736, applying rule
where granddaughter informally adopted by spouses; Barry v. Hale,
2 Tex. Civ. 670, 21 S. W. 784, unmarried man supporting sister and
widowed mother has family within homestead law; Phillips v. Price,
12 Tex. Civ. 409, 34 S. W. 784, holding minor grandchild, whose
parents can support her, cannot claim homestead as against grand-
mother's creditors; American Nat. Bank v. Cruger (Tex. Civ.), 44 8.
W. 1058, holding an unmarried female as the head of a house could
homestead property; Smith v. Wright, 13 Tex. Civ. 485, 36 S, W.
326, widow supporting orphan grandchild is head of family under
homestead law; Schneider v. Bray, 59 Tex. 673, Mullins v. Looke,
8 Tex. Civ. 143, 27 S. W. 929, and Bybee v. Wadlington, 2 Posey
XT. C. 467, all arguendo. See note, 4 L. B. A. (n. s.) 381.
947 NOTES ON TEXAS BEFOBTS. 52 Tex. 657-668
62 Tex. 667-668, McGOWEN ▼. McOOWEK.
Doctrine of Bes OestM l8 Baaed on Presnmption that declaratians
made at time of principal act are as reliable as the act itself, of
which they are a part.
Approved in Hanna v. Hanna, 3 Tex. Civ. 53, 21 S. W. 721, Pass-
more V. Passmore, 113 Ind. 241, 15 N. E. 340, admitting statement
of wife as to husband's cruelty; Ft. Worth etc. By. v. Stone (Tex.
Civ.), 25 S. W. 808, statements made by an injured party to a physi-
cian and explanatory of the accident are not admissible as res
gestae.
DedarationB to be Fart of Bee Ctostae, if they spring out of the
principal transaction, may either precede or follow the act.
Approved in Pilkinton v. Onlf etc. By., 70 Tex. 231, 7 S. W. 808,
where circumstances render it probable that statement was result
of deliberate design to effect particular purpose, it is inadmissible;
Missouri etc. By. v. Moore, 24 Tex. Civ. 490, 59 S. W. 283, admitting
declarations of injured party some time after accident where he was
rendered unconscious; International etc. B. v. Smith (Tex. Sup.), 14
S. W. 644, explanations made by an injured party suffering pain
fifteen minutes after the injury, and explanatory of it, are admissible
as res gestae; Wright v. Solomon (Tex. Civ.), 46 S. W. 59, admitting
declarations made at the time of delivery of property to show motive
of the transaction; Atchison etc. By. Co. v. Logan, 65 Kan. 752, 70
Pac. 879, * statement, five minutes after accident, made by injured
party after being pulled from under cars not admissible as res gestae,
where he told one person to call another as he wanted to make
statement; Huth v. Huth, 10 Tex. Civ. 187, 30 S. W. 242, arguendo.
To Ctonstitate Voluntary Separation with intent to abandon, author-
izing divorce, it must be shown that plaintiff neither caused, pro-
cured, nor consented to the separation.
Approved in Hannig v. Hannig (Tex. Civ.), 24 S. W. 696, and
Boberson t. Boberson, 2 Posey U. G. 451, both following rule.
NOTES
ON THE
TEXAS EEPOETS
GASES IN 53 TEXAS.
68 Tbqc 1-^, HABBI8 ▼. OATLIK.
Vendor's Heirs Betain Legal Title to Xduid where purchase monej
is not paid and can recover land sold.
Approved in Sanders v. Bawlings (Tex. Civ.), 77 8. W. 42, where
suit on purchase money note barred by limitation, vendor might still
recover land; Crafts v. Daugherty, 69 Tex. 480, 481, 6 8. W. 852,
legal title is in vendor after executing deed where consideration is
not fully paid; Smith ▼. Pate (Tex. Civ.), 43 S. W. 314, superior title
to land remains in vendor where he retains an express lien in the
land; White v. Cole, 9 Tex. Civ. 281, 29 S. W. 1150, in action of
trespass to try title vendee cannot defeat legal title of vendor. See
note, 49 Am. Dec. 763.
Vendee cannot Betain Land discharged from all demands of ven-
dor's estate without paying full purchase price.
Approved in McPherson v. Johnson, 69 Tex. 487, 6 S. W. 799,
vendee cannot recover possession without paying balance of pur-
chase money; White v. Cole, 9 Tex. Civ. 280, 29 S. W. 1149, vendee
eannot defeat recovery by vendor without paying purchase money.
Distinguished in Coddington v. Wells, 59 Tex. 51, 54, and Summer-
hill V. Hanner, 72 Tex. 227, 9 S. W. 882, vendor's representatives can-
not recover where, vendor had judgment for purchase money.
53 Tex. 9-14, LEAGUE ▼. DAVI8.
Where Becord Fails to Show Defense of statute of limitations,
court was not required to interpose it.
Approved in Bringhurst v. Texas Co., 39 Tex. Civ. 508, 87 S. W.
897, defense of statute of frauds must be raised by pleading or objec-
tion to evidence; Pool v. Wedemeyer, 56 Tex. 300, defendant failing
to plead statute waives that defense; Day v. Dalziel (Tex. Civ.), 32
S. W. 378, appellate court will not interpose statute of frauds as a
defense; Moody v. Jones (Tex. Civ.), 37 S. W. 379, parol evidence is
not admissible to prove a contract required to be in writing although
not so alleged; Diehl v. Fowler, 10 Tex. Civ. 559, 30 S. W. 1086,
court not bound to adjudge issue not raised by pleadings.
• Distinguished in Gulf etc. Ry. v. Settegast, 79 Tex. 261, 15 S. W.
229| statutory defense cannot be pleaded by stranger to defense.
(949)
53 Tex. 15-46 NOTES ON TEXAS REPOBTS. 950
63 Tex. 15-23, McCOBMICK v. McNEEL.
Wife can Elect to Sue on Note given by husband before marriage
and forecloBe lien upon homestead in lieu of taking homestead oat
of estate.
See note, 70 Am. Dec. 400.
53 Tex. 23-30, PETI00I.A8 T. OABPENTES.
District Court has Jarlsdiction of Interventioii hj judgment credi-
tor from justice's court, though amount in controversy less than five
hundred dollars.
Approved in Templeman v. Gresham, 61 Tex. 53, district court
could adjust rights to property, though interest of same not suffi-
cient to give court jurisdiction; Heidenheimer v. Johnson, 76 Tex.
206, 13 S. W. 47, court has jurisdiction of' intervener's claims,
though each claim may not give jurisdiction; Garrett v. Robinson,
93 Tex. 412, 55 S. W. 566, court can give defendant judgment
against intervener when he is party to action.
Intervener Is Entitled to Bestltatloa after reversal of judgment
which has been executed, without resorting to new suit.
Approved in City of Houstoil v. Walsh, 27 Tex. Civ. 125, 66 S. W.
108, on reversal of judgment foreclosing tax lien, defendant entitled
to return of property or value thereof, if rights of innocent third
parties have intervened; Cleveland v. Tufts, 69 Tex. 583, 7 S. W. 74,
plaintiff can amend, pleading damages, in action to try right to prop-
erty; Peters Furniture Co. v. Dickey, 2 Posey U. C. 238, subsequent
attaching creditor cannot take advantage of technicalities in first
attachment. See following notes in 76 Am. Dec. 467; 78 Am. Dec.
558.
53 Tex. 30-37, SPENCE T. McGOWAN.
At Oonunon Law, Action of Ejectment^ by use of fictitious persons,
tried title.
Approved in Thurber v, Conners, 57 Tex. 97, common-law action of
ejectment was same as suit to try title; Bevering v. Smith, 121 Iowa,
611, 96 N. W, 1112, permitting greater liberality in granting new
trials in actions concerning realty than in other cases. See notes, 6o
Am. Dec. 614.
Where Adjustment of Division Iiine is main question in action to
try title, and title is admitted, one adjudication is conclusive.
Approved in San Patricio Corp. v. Mathis, 58 Tex. 243, second
suit cannot be maintained to decide question of disputed boundary
line; Barbee v. Stinnett, 60 Tex. 167, disputed boundary line can-
not be litigated in second suit; Jones v. Andrews, 72 Tex. 13, 9 3.
W. 171, disputed boundary lines cannot be litigated in second suit;
Carley v. Parton, 75 Tex. 103, 12 S. W. 952, second suit can be
maintained where parties admit question of boundary line; Birdseye
V. Shaeffer (Tex. Civ,), 57 S. W. 989, second suit to try question of
boundary cannot be maintained. See notes, 67 Am. Dec. 621; 85
Am. Dec. 209.
53 Tex. 37-46, KLEIN T. OLA8&
Wife Is Bound by Deed of Trust upon homestead for future un-
limited advances to husband, where she voluntarily joins in mort-
gage.
Approved in McCormick v. Blum, 4 Tex. Civ. 16, 22 S. W. 1055,
wife can mortgage her separate property to pay future debts of
951 NOTES ON TEXAS BEPOBTS. 53 Tex. 46-56
husband; Tudor v. Hodges, 71 Tex. 395, see 9 S. W. 444, arguendo.
See note, 58 Am. Dee. 115, 116.
Sale will be Set Aside for inadequate price where fraud in aale
is presented by record.
Approved in Hudgins v. Morrow, 47 Ark. 518, 2 S. W. 105, inade-
quate price will not yitiate trustee's sale in absence of fraud. See
note, 103 Am. St. Bep. 57.
63 Tex. 46-66^ S7 Am. Bep. 744, INTEBNATIONAL ETC. B. B. ▼.
HAIiLOBEN.
Common Carrier must Use the degree of care of cautious persons
and must employ competent agents.
Approved in Green v. Houston Electric Co., 40 Tex. Civ. 262, 89
S. W. 443, International etc. B. Co. v. Clark, 36 Tex. Civ. 195, 81
8. W. 821, Gulf etc. By. v. Stricklin (Tex. Civ.), 27 8. W. 1094,
Texas etc. By. v. Orr (Tex. Civ.), 31 S. W. 696, Texas etc. By. v.
Buckalew (Tex. Civ.), 34 S. W. 166, Gulf etc. By. v. Beagan (Tex.
Civ.), 34 S. W. 799, and Missouri etc. By. v. Scarborough (Tex. Civ.),
51 S. W. 356, all following rule; St. Louis etc. By. Co. v. Parks, 40
Tex. Civ. 483, 90 S. W. 345, where passenger injured by sparks from
engine; El Paso etc. By. Co. v. Harry, 37 Tex. Civ. 93, 83 S. W. 736,
applying rule to injury of passenger from sudden starting of electric
car while she was alighting; St. Louis etc. By. Co. v. McCullough,
18 Tex. Civ. 536, 45 S. W. 325, applying rule in action by passenger
for damages for being carried past station; Gary v. Gulf etc. By.
Co., 17 Tex. Civ. 131, 42 8. W. 577, applying rule to care required
of railroad in selecting suitable place for passenger, who had taken
wrong train, to alight, and in stopping train and assisting her off;
Gulf etc. By. v. Butcher, 83 Tex. 316, 18 S. W. 587, company must
use more than ordinary care in providing safe platforms; Gulf etc.
By. ▼. Killebrew (Tex. Sup.), 20 S. W. 184, holding company must
use the care in making window fastenings secure which a cautious
person would under like circumstances; International etc. By. v.
Welch, 86 Tex. 204, 40 Am. St. Bep. 829, 830, 24 S. W. 391, error to
charge company must use all possible care; Ft. Worth etc. By. v.
Enos (Tex. Civ.), 50 8. W. 597, erroneous to charge that a company
should use proper care in making crossings; Fordyce v. Withers,
1 Tex. Civ. 544, 545, 20 8. W. 768, company must use prudence of
cautious man in caring for passenger's safety; Dillingham v. Wood.
8 Tex. Civ. 74, 27 S. W. 1075, company must use highest degree of
care for passenger's safety; Dallas Traction By. v. Bandolph, 8 Tex.
Civ. 216, 27 8. W. 926, company not a guarantor of passengers'
safety, but must use high degree of care for their safety; Gulf etc.
By. V. Shields, 9 Tex. Civ. 656, 657, 28 8. W. 710, company's agents
not bound to use highest degree of care human foresight capable of;
Gulf eto By. v. Brown, 16 Tex. Civ. 102, 40 8. W. 614, no error to
charge company must use care of prudent man; Louisville etc. By. v.
Thompson, 107 Ind. 451, 8 N. E. 23, company liable for not inspecting
bridge after flood when it had time; Texas etc. B. B. v. Brown
(Tex. Civ.), 58 8. W. 46, no error to charge company's agents must
use care of prudent persons. See notes, 63 Am. Dec. 333; 72 Am.
Dec. 532; 2 L. B. A. 84.
Company is Uable for Accident where it could obtain information
from observation and reasonable to anticipate it.
63 Tex. 56-71 NOTES ON TEXAS BEPOETS. 952
Approved in Missouri etc. B. B. y. Johnson, 72 Tez. 102, 10 S. W.
327, company is liable for damages resulting from mere continued
rainstorm.
OomiHUiy not Jiiable for Faflnre to provide against extraordinary
flooda or other invisible casualties.
Approved in Houston etc. By. v. Fowler, 56 Tex. 458, company
not liable for damages caused by extraordinary rainstorm; Columbus
etc. By. V. Bridges, 86 Ala. 452, 11 Am. St. Bep. 61, 5 So. 866, com-
pany not liable for damage caused by extraordinary flood; Knahtla
V. Oregon etc. By., 21 Or. 150, 27 Pac. 95, company not liable for
extraordinary flood unless it had time to examine bridge; Kansas etc.
By. V. Williams, 3 Ind. Ter. 357, 58 S. W. 572, company not liable
for damages caused by unprecedented storm; Barstow Irr. Co. v. Black,
39 Tex. Civ. 85, 86 S. W. 1039, irrigation company liable for escape
of water, no matter how skillful its engineers. See notes, 64 Am. Dec.
523; 4 Am. St. Bep. 84.
63 Tex. 56-61, EVANS T. BRANDON.
Petition of Stockholder Seeking Becovery for himself individually
and not corporation subject to demurrer.
Approved in Cates v. Sparkman, 73 Tex. 621, 623, 15 Am. St. Bep.
808, 811, 11 S. W. 849, 850, stockholder can only sue directors for
wrongdoing when corporation fails to sue; Howe v. Barney, 45 Fed.
670, where corporation refuses to sue directors^ stockholder may sue
for benefit of all; Becker ▼. Gulf City etc. Co., 80 Tex. 486, 487, 15
S. W. 1098, stockholder's petition not demurrable when proper par-
ties and titles of company before court; Howe v. Barney, 45 Fed.
669, stockholder's petition for himself against directors bad on de-
murrer.
68 Tex. 61-71, S7 Am. Bop. 760, TEXAS BANKINO ETC. GO. t.
HITTCHINS.
Appellants' Brief Containing No Propositlona of Law under assign-
ment of error is defective.
Distinguished in Vaughn v. G. C. etc. By., 3 Tex. Ap. Civ. 280,.
holding that the rule does not require the setting forth of assign-
ments of error in appellant's brief.
In Suit to Becover on Insurance Policy, where defense is that
policy was void for concealment and breach of warranty, the par-
ticular acts, representations, or conduct of insurer constituting a
waiver thereof, and hence an estoppel to the defense, must be set
forth with reasonable certainty.
Approved in Tres Palacios Bice etc. Co. v. Eidman, 41 Tex. Civ.
546, 93 S. W. 700, holding estoppel must be pleaded; Scarbrough v.
Alcorn, 74 Tex. 360, 12 S. W. 73, estoppel in pais must be specially
pleaded; East Texas etc. Ins. Co. v. Brown, 82 Tex. 636, 18 S. W.
715, plaintiff must plead waiver to avail himself of it; German Ins.
Co. V. Daniels (Tex. Civ.), 33 S. W. 551, plaintiff cannot prove waiver
where he fails to plead a waiver of condition requiring payment of
premium before loss; Love v. Bempe (Tex. Civ.), 44 S. W. 681, plain-
tiff cannot prove a waiver of additional charges in a written contract
where he has not alleged them; Texas Produce Co. v. Turner, 7
Tex. Civ. 213, 26 S. W. 919, estoppel must be pleaded; Security Mort-
gage etc. Co. V. Caruthers, 11 Tex. Civ. 440, 32 S. W. 842, error
of court to submit waiver when not pleaded; Mutual etc. Ina. Co.
953 NOTES ON TEXAS REPORTS. 53 Tex. 72-121
▼. CoUin Co. Nat. Bk., 17 Tex. Civ. 479, 43 S. W. 832, facta con-
Btituting estoppel must be pleaded; Merchants' Ins. Co. v. Dwyer, 1
Posey U. C. 449, plaintiff cannot rely on waiver not pleaded; Dwell-
ing-HoQse Ins. Co. v. Johnson, 47 Kan. 5, 27 Pac. 102, error to give
instructions on matter not pleaded.
Explained in Sun etc. Ins. Co, v. Roberts, 90 Tex." 79, 37 S. W.
312, holding case at bar not in conflict because of facts being differ-
ent. See note, 27 Am. St. Rep. 347.
Notice OlTen to Secretary by agent of insurance company, on
atreet and away from office, of breach of warranty constituting valid
ground of forfeiture, not sufficient.
Approved in Crescent Ins. Co. ▼. Grif&n, 59 Tex. 514, waiver of
warranty where company's agent, after knowledge, acquiesced in
breach; Phoenix Assurance Co. v. Coffman, 10 Tex. Civ. 635, 32 S. W.
812, company estopped where its agents had knowledge of lien.
Party Ouilty of Frand cannot be protected by estoppel from eon-
aequences of fraud.
Approved in Munk v. Weidner, 9 Tex. Civ. 496, 29 S. W. 411, wife
is estopped from claiming land when guilty of fraud or act of con-
cealment. See note, 39 Am. Rep. 322.
53 Tex. 72-81, JACOBS T. McCLINTOGK.
Sale Under Trust Deed is valid where mere technical omission of
seal in appointment of trustee.
Approved in Cheveral v. McCormick, 58 Tex. 445, court has no
power to correct omission of essential substance.
63 Tex. 82-96, 800TT T. ALFOBD.
Court can Pronounce Deed Void when fact or intention avoiding
deed is apparent or necessary deduction from it.
Approved in Kruschell v. Anders (Tex. Civ.), 26 S. W. 249, and
Moore v. Blum (Tex. Civ.), 40 S. W. 514, both following rule; Eicks
V. Copeland, 53 Tex, 589, 37 Am. Rep. 761, court should declare
legal effect of conveyance where fraud is apparent; Cook v. Halsell,
65 Tex. 7, no error for court to charge for defendants where plain-
tiffs executed chattel mortgage and obtained profits from sale of
mortgaged property. See notes, 70 Am. Dec. 292; 7o Am. Dec. 818,
819; 58 Am. St. Rep. 94.
Stipolation in Deed of Tmst purporting to create lien on subse-
quently acquired property does not make deed void if valid in other
respects.
Approved in Johnston v. Luling Mfg. Co. (Tex. Civ.), 24 S. W.
999, 1000, permitting a trustee to have possession of the trust prop-
erty till he could execute the trust does not make it per se void as
to creditors; Haas v. Sternbach, 156 111. 58, 41 N. £. 55, promise
to withhold mortgage from record is not fraudulent per se; Mark v.
Heidenheimer, 63 Tex. 307, attempted creation of lien does not affect
other valid clauses in instrument.
Trust Deed of Entire Stock to single creditor providing that debtor
should continue to conduct business is not fraudulent per se.
See notes, 18 L. R. A. 623; 18 L. R. A. 605.
63 Tex. 96-121, INTERNATIONAL ETC. B. B. T. BBEMOND.
Delay of Stockholder in Seeking His Interest^ appropriated without
authority by consolidated company, precludes him from enjoining
further consolidation.
See notes, 9 L. R. A. (n. s.) 606; 52 L. R. A. 389.
63 Tex. 56-71 NOTES ON TEXAS BEPOBTS. 952
Approved in Missouri etc. B. B. v. Johnson, 72 Tex. 102, 10 S. W.
327, company is liable for damages resulting from mere continued
rainstorm.
OomiHUiy not Jiiable for Faflnre to provide against extraordinary
floods or other invisible casualties.
Approved in Houston etc. By. v. Fowler, 56 Tex. 458, company
not liable for damages caused by extraordinary rainetorm; Columbus
etc. By. V. Bridges, 86 Ala. 452, 11 Am. St. Bep. 61, 5 So. 866, com-
pany not liable for damage caused by extraordinary flood; Knahtla
V. Oregon etc. By., 21 Or. 150, 27 Pac. 95, company not liable for
extraordinary flood unless it had time to examine bridge; Kansas etc.
By. V. Williams, 3 Ind. Ter. 357, 58 S. W. 572, company not liable
for damages caused by unprecedented storm; Barstow Irr. Co. v. Black,
39 Tex. Civ. 85, 86 S. W. 1039, irrigation company liable for escape
' of water, no matter how skillful its engineers. See notes, 64 Am. Dec.
523; 4 Am. St. Bep. 84.
53 Tex. 56-61, EVANS T. BRANDON.
Petition of Stockholder Seeking Becovery for himself individually
and not corporation subject to demurrer.
Approved in Cates v. Sparkman, 73 Tex. 621, 623, 15 Am. St. Bep.
808, 811, 11 S. W. 849, 850, stockholder can only sue directors for
wrongdoing when corporation fails to sue; Howe v. Barney, 45 Fed.
670, where corporation refuses to sue directors, stockholder may sue
for benefit of all; Becker t. Gulf City etc. Co., 80 Tex. 486, 487, 15
S. W. 1098, stockholder's petition not demurrable when proper par-
ties and titles of company before court; Howe v. Barney, 45 Fed.
669, stockholder's petition for himself against directors bad on de-
murrer.
53 Tex. 61-71, S7 Am. Bap. 760, TEXAS BANKINO ETC. CO. t.
HITTOHINS.
Appellants' Brief Containing No Propositions of Law under assign-
ment of error is defective.
Distinguished in Vaughn v. G. C. etc. By., 3 Tex. Ap. Civ. 280,
holding that the rule does not require the setting forth of assign-
ments of error in appellant's brief.
In Suit to Becover on Insurance Policy, where defense is that
policy was void for concealment and breach of warranty, the par-
ticular acts, representations, or conduct of insurer constituting a
waiver thereof, and hence an estoppel to the defense, must be set
forth with reasonable certainty.
Approved in Tree Palacios Bice etc. Co. v. Eidman, 41 Tex. Civ.
546, 93 S. W. 700, holding estoppel must be pleaded; Scarbrough v.
Alcorn, 74 Tex. 360, 12 S. W. 73, estoppel in pais must be specially
pleaded; East Texas etc. Ins. Co. v. Brown, 82 Tex. 636, 18 S. W.
715, plaintiff must plead waiver to avail himself of it; German Ins.
Co. V. Daniels (Tex. Civ.), 33 S. W. 551, plaintiff cannot prove waiver
where he fails to plead a waiver of condition requiring payment of
premium before loss; Love v. Bempe (Tex. Civ.), 44 S. W. 681, plain-
tiff cannot prove a waiver of additional charges in a written contract
where he has not alleged them; Texas Produce Co. v. Turner, 7
Tex. Civ. 213, 26 S. W. 919, estoppel must be pleaded; Security Mort-
gage etc. Co. V. Caruthers, 11 Tex. Civ. 440, 32 8. W. 842, error
of court to submit waiver when not pleaded; Mutual etc. Ins. Co.
B53 NOTES ON TEXAS REPORTS. 53 Tex. 72-121
T. CoUia Co. Nat. Bk., 17 Tex. Civ. 479, 43 S. W. 832, fact* con-
stituting estoppel must be pleaded; Merchants' Ins. Co. v. Dwyer, 1
Posey U. C. 449, plaintiff cannot rely on waiver not pleaded; I>well-
ing-House Ins. Co. v. Johnson, 47 Kan. 5, 27 Pac. 102, error to give
instructions on matter not pleaded.
Explained in Sun etc. Ins. Co. v. Roberts, 90 Tex. 79, 37 S. W.
312, holding case at bar not in conflict because of facts being differ-
ent. See note, 27 Am. St. Rep. 347.
Notice Ctlven to Secretary by agent of insurance company, on
street and away from office, of breach of warranty constituting valid
ground of forfeiture!, not sufficient.
Approved in Crescent Ins. Co. v. Griffin, 59 Tex. 514, waiver of
warranty where company's agent, after knowledge, acquiesced in
breach; Phoenix Assurance Co. v. Coffman, 10 Tex. Civ. 635, 32 S. W.
812, company estopped where its agents had knowledge of lien.
Party Qullty of Fr&nd cannot be protected by estoppel from con-
sequences of fraud.
Approved in Munk v. Weidner, 9 Tex. Civ. 496, 29 S. W. 411, wife
is estopped from claiming land when guilty of fraud or act of con-
cealment. See note, 39 Am. Rep. 322.
53 Tex. 72-81, JACOBS t. McCLINTOOK.
Sale Under Trust Deed is valid where mere technical omission of
seal in appointment of trustee.
Approved in Cheveral v. McCormick, 58 Tex. 445, court has no
power to correct omission of essential substance.
63 Tex. 82-96, SCOTT V. ALFOBD.
Court can Pronounce Deed Void when fact or intention avoiding
deed is apparent or necessary deduction from it.
Approved in Kruschell v. Anders (Tex. Civ.), 26 S. W. 249, and
Moore v. Blum (Tex. Civ.), 40 S. W. 514, both following rule; Eicks
V. Oopeland, 53 Tex. 589, 37 Am. Rep. 761, court should declare
legal effect of conveyance where fraud is apparent; Cook v. Halsell,
65 Tex. 7, no error for court to charge for defendants where plain-
tiffs executed chattel mortgage and obtained profits from sale of
mortgaged property. See notes, 70 Am. Dec. 292; 75 Am. Dec. 818,
819; 58 Am. St. Rep. 94.
Stipulation in Deed of Trust purporting to create lien on subse-
quently acquired property does not make deed void if valid in other
respects.
Approved in Johnston v. Luling Mfg. Co. (Tex. Civ.), 24 S. W.
999, 1000, permitting a trustee to have possession of the trust prop-
erty till he could execute the trust does not make it per se void as
to creditors; Haas v. Sternbach, 156 111. 58, 41 N. E. 55, promise
to withhold mortgage from record is not fraudulent per se; Mark v.
Heidenheimer, 63 Tex. 307, attempted creation of lien does not affect
other valid clauses in instrument.
Trust Deed of Entire Stock to single creditor providing that debtor
should continue to conduct business is not fraudulent per se.
See notes, 18 L. R. A. 623; 18 L. R. A. 605.
53 Tex. 96-121, INTERNATIONAL ETC. B. B. v. BBEMOND.
Delay of Stockholder in Seeking His Interest^ appropriated without
authority by consolidated company, precludes him from enjoining
further consolidation.
See notee^ 9 L. R. A. (n. s.) 606; 52 L. R. A. 389.
63 Tex. 121-138 NOTES ON TEXAS REPORTS. 954
Explained in Morrill v. Smith County (Tex. Civ.), 33 S. W. 907,
company is entitled to bonds from the county when it has complied
with the requirements, though it consolidated with another company
before issuance of the bonds.
Railroad Company Equitably I<iable to objecting stockholder for
unauthorized consolidation for value of his shares.
Approved in Tanner v. Lindell By. Co., 180 Mo. 19, 103 Am. St. Bep.
534, 79 S. W. 159, minority stockholders not bound to accept share
of proceeds from sale of stock in new corporation, but may have
market value of stock; dissenting opinion in Germer v. Triplo-State
Natural Gas etc. Co., 60 W. Va. 163, 54 S. E. 517, majority per-
mitting corporation to exchange all of its property for stock in an-
other company. See notes, 89 Am. St. Bep. 622, 623; 4 L. B. A. 365;
1 L. B. A. (n. 8.) 610.
I>irectoni are luyt Liable for consolidation with other corporation
affected by act of stockholders.
See note, 55 L. B. A. 765.
Miscellaneous. — Chicago etc. By. t. Auditor General, 53 Mich. 90,
see 18 N. W. 591, cited generally in suit involving taxation of local
railway which became consolidated with a foreign railroad, which
controlled several other railway systems. See note, 98 Am. Dee.
102.
63 Tex. 121-138, BLUM T. LOOOnrS.
Holder of Promissory Note imports he acquired it bona fide.
Approved in Abercrombie v. Stillman, 77 Tex. 592, 14 S. W. 197,
possession of notes properly indorsed shows notes acquired in usual
course of business; Herman v. Gunter, 83 Tex. 68, 69, 29 Am. St.
Bep. 634, 635, 18 S. W. 429, no error to charge plaintiff as holder
acquired notes without notice; Prouty v. Musquiz, 94 Tex. 91, 58
S. W. 722, holder of note by parol assignment is prima facie holder
for value; Luter v. Boberts (Tex. Civ.), 39 S. W. 1002, legal as-
signee of a promissory note is the legal holder in the due course
of trade; Graham v. Lawrence (Tex. Civ.), 44 S. W. 558, maker of
note must show want of original consideration to defeait recovery
by indorsee.
'Holder of Note must show that he acquired it bona fide when fraud
is proved.
Approved in Bische v. Planters* Nat. Bk., 84 Tex. 420, 19 S. W.
611, holder of paper put in circulation fraudulently must prove he
is innocent holder; Hart v. West, 91 Tex. 187, 42 S. W. 546, plaintiff
not injured where court charges for defendant where he holds note
without consideration.
Acceptance of Note for purpose of liquidating antecedent indebted-
ness is transfer for valuable consideration.
Approved in Liddell v. Crain, 53 Tex. 555, negotiable instrument
asaigned as collateral security is transfer for valuable consideration;
Willis V. Sanger, 15 Tex. Civ. 664, 40 S. W. 233, note given for ante-
cedent indebtedness in transfer with consideration; Bice v. Soders,
1 Posey U. C. 619, holding the crediting on pre-existing debt due
the firm by his vendor of the price of land conveyed by debtor to
one of members of firm is a sufficient valuable consideration as against
prior equities of third parties, where vendee had no notice. See
notes, 84 Am. Dec. 404; 86 Am. Dec. 669; 11 Am. St. Bep. 324, 325.
955 NOTES ON TEXAS BEPOBTS. 53 Tex. 139-157
When Answer Fully Meets and Denies Avennants of petition for
injunction, motion to dissolve should be granted.
Approved in Hampson v. Adams, 6 Ariz. 339, 57 Pac. 622, reaffirm-
ing rule.
Distinguished in Huron Waterworks Co. v, Huron, 3 S. D. 616,
54 N. W. 653, motion to dissolve injunction refused where answer
denied material averments of petition.
58 Tex. 139-150, GALVESTON OITY BY. v. NOImAN.
Motion to Abate will not be Granted where appellee dies after
judgment was rendered.
Approved in Fowden v. Pacific Coast Steamship Co., 149 Cal. 154, 86
Pac. 179, reaffirming rule; Brooke v. Clark, 57 Tex. 109, motion to
abate denied where guardian ad litem died during appeal; Pullman
Palaee Car Co. v. Powler, 6 Tex. Civ. 759, 27 S. W. 270, motion to
abate cannot be maintained where appellee died after judgment.
Oompany is Liable for failure to comply with their obligations
in not keeping their roadbed and rails at level of established grade,
but is not bound to fill up holes caused by wearing away of surface.
Approved in Houston St. By. v. Delesderner, 84 Tex. 86, 19 S. W.
368, company liable for neglecting track, though city agreed to
it; Groves v. Louisville By. (Ky. Ap.), 58 S. W. 514, company liable
for not repairing streets along its track, though city approved. See
notes, 90 Am. Dec. 57; 70 L. B. A. 855; 52 L. B. A. 458.
Where Charge of Oonrt is erroneous in reference to averments
of petition and evidence, judgment will be reversed.
Approved in Union St. By. v. Stone, 54 Kan. 100, 37 Pac. 1015,
no reversal granted where the jury was not misled by findings and
evidence.
63 Tex. 160-157, BAKEB T. WASSON.
Liability of One Procuring Wrongful Transfer of stock is for that
act alone and not subsequent dispositions of new stock.
Approved in Baker v. Wasson, 59 Tex. 143, 145, applying rule on
subsequent appeal. See notes, 48 Am. St. Bep. 922; 22 Am. St. Bep.
514; 44 Am. Dec. 502.
Shares of Incorporated OomiMuiies under statute are considered as
property.
Approved in Smith v. Traders' Nat. Bk., 74 Tex. 462, 12 S. W. 115,
stock of Texas Investment Company subject to garnishment; Bio
Grande Cattle Co. v. Burns, 82 Tex. 56, 17 S. W. 1045, interest of
stockholder without certificate is assignable; Tombler v. Palestine Ice
Co., 17 Tex. Civ. 601, 43 S. W. 897, stockholder may transfer his
certificate and purchaser holds same against subsequent lien; Lips-
comb's Admr. v. Condon, 56 W. Va. 426, 107 AnL St. Bep. 938, 49
S. E. 395, 67 L. B. A. 670, in proceeding to subject shares to payment
of debt, corporation should be made garnishee.
Oompany is Liable to Stockholder for wrongful cancellation of
stock either through negligence or fraud.
Approved in Bio Grande Cattle Co. v. Burns, 82 Tex. 57, 17 S. W.
1046, stockholder can sue company for conversion for refusing to
issue stock; Kempner v. Wallis, 2 Tex. Ap. Civ. 518, 520, company
liable for transferring minor's stock where guardian does not show
authority; Herbert-Kraft Co. Bank v. Bask of Orland, 133 Cal. 68, 65
Pac. 145, equity will relieve from wrongful sale of stock under void
assessment.
63 Tex. 157-172 NOTES ON TEXAS REPORTS. 956
For Wrongful Act of Agent, acting for hi» principal, both are
liable.
Approved in Eastin r. Texas etc. Ry. Co., 99 Tex. 659, 92 S. W. 839,
holding railway and its agent liable for refusal to ship cattle by most
direct route.
One Aiding in Procuring Illegal Issaaoce of stock to himself can-
not relieve himself from responsibility by showing he acted as agent.
See note, 50 L. R. A. 647.
63 Tex. 157-162, EDMONBON ▼. GALVESTON.
Judgment for City Taxes assessed for an aggregate amount and
creating lien on property is erroneous.
Approved in Jodon ▼. Brenham, 57 Tex. 657, reversing judgment
for taxes assessed against land including homestead; Parker v.
Jacksonville, 37 Fla. 351, 20 So. 539, no general lien for taxes as-
sessed upon land in aggregate. See note, 42 Am. St. Rep. 657.
Distinguished in Dallas etc. Trust Co. v. Oak Cliff, 8 Tex. Civ.
221, 222, 27 S. W. 1040, affirming judgment for taxes assessed ac-
cording to list made by owner; Guerguin v. San Antonio, 19 Tex.
Civ. 100, 60 S. W. 141, holding judgment for taxes under new con-
stitution valid when property is assessed in lump.
Judgment for Interest on amount assessed for taxes is erroneous
where there is no atatute to support it.
Approved in Illinois etc. R. Co. v. Adams, 78 Miss. 904, 29 So. 998,
reaffirming rule; Cave v. Houston, 65 Tex. 622, error to render judg-
ment for interest on taxes unless statute expressly provides it;
Heller t. Alvarado, 1 Tex. Civ. 411, 20 8. W. 1004, error to allow
city to recover interest on taxes; McCombs v. Rockport, 14 Tex. Civ.
562, 37 S. W. 989, error to allow interest upon taxes from time they
were due. Cited in extensive note containing list of authorities made
part of dissenting opinion of Cooley, C. J., in State Tax Law Cases,
54 Mich. 447 (see 23 N. W. 190), to the general proposition that
the intervention of the judiciary in tax proceedings is allowed in many
of the etates. See note, 6 L. R. A. (n. s.) 695.
53 Tex. 162-172, STRANGE V. HOUSTON ETC. B. B.
Nonprodnctlon of Original Certificate by one demanding transfer
of certificate sufficient notice to company that title may be in third
party.
Approved in Baker v. Wasson, 59 Tex. 146, nonproduction of cer-
tificate sufficient notice to OLake inquiry; Walker v. Detroit Transit
Ry., 47 Mich. 348, 11 N. W. 190, owner is estopped from claiming
against innocent purchaser from agent with apparent authority to
dispose; Kempner v. Wallis, 2 Tex. Ap. Civ. 520, company liable
where guardian did not produce original certificate.
Assignee of Certificate of Stock can demand of company privi-
leges and benefits of original holder.
Approved in Seligson v. Brown, 61 Tex. 119, assignee of stock
certificate holds same as original stockholder; Spencer v. James,
10 Tex. Civ. 333, 31 S. W. 543, assignee of stock certificate entitled
to privileges incident thereto; Joslyn v. St. Paul Distilling Co., 44
Minn. 186, 46 N. W. 338. assignee of stock certificate regularly is-
sued holds same as original stockholder. See notes, 37 Am. Rep. 354;
67 L. R. A. 664.
Distinguished in Baker v. Wasson, 53 Tex. 155, 156, stockholder
can recover for value of stock issued on illegal transfer of stock.
95? NOTES ON TEXAS EEPOETS. 53 Tex. 172-213
Books of Oompany are not Notice of Ownership further than for
use and benefit of company itself.
Approved in Tombler y. Palestine Ice Co., 17 Tex. Civ. 601, 43
8. W. 897, purchaser of stock for valid consideration not bound hj
books of company showing transferrer as owner.
63 Tez. 172-194, LABD ▼. SOUTHERN COTTON FBE88 ETC. OO.
Mere Extent and Magnitude of Business does not change a private
charge into tolls subject to law.
Approved in American etc. Commission Co. v. Chicago etc. Ex-
change, 143 111. 238, 36 Am. St. Rep. 398, 32 N. E. 282, 20 L. R. A.
247, court has no power over magnitude of stockyard transactions;
State V. Associated Press, 159 Mo. 462, 60 S. W. 106, 51 L. R. A. 151,
legislature must make rules applicable to business of associated press,
and not courts. See notes, 45 Am. Dec. 156, 163, 171; 54 Am. Dec.
719; 33 L. R. A. 179.
Party Whose Busineee Is not Subjected to public use does not make
it so by combining with same business interests.
Approved in Seeligson v. Taylor Compress Co., 56 Tex. 227, 228,
compress company having a warehouse is not a combination in re-
sitraint of trade; Queen Ins. Co. v. State, 86 Tex. 273, 24 S. W. 405,
22 L. R. A. 483,. combination of insurance men regarding rates is not
iUegal.
Mere Protest Against Charge does not entitle party to recover it.
See note, 94 Am. St. Rep. 409.
63 Tez. 200-206, BASSE T. KENNEDY.
General Deposit With Banker creates simply relation of debtor and
creditor.
See note, 86 Am. St. Rep. 777.
83 Tez. 206-213, GALVESTON ETC. B. & T. DELAHXTNTT.
Oompany is Liable for Defective Machinery if proper precautions
were not taken to see that they were strong.
Approved in Texas etc. Ry. v. Huffman, 83 Tex. 290, 18 S. W. 742,
company must use reasonable diligence in furnishing safe machinery;
Peschel v. Chicago etc. Ry., 62 Wis. 353, 21 N. W. 276, master is
liable for safety of machinery delivered in parts when erected by
agents. See notes, 3 McCrary, 431; 59 Am. Rep. 75; 98 Am. St. Rep.
291.
Negligence of Oompany is question of fact for jury to determine.
Approved in Galveston etc. Ry. v. Knippa (Tex. Civ.), 27 S. W.
731, error to charge that the scattering of sparks is negligence; San
Antonio etc. Ry. v. Long, 4 Tex. Civ. 500, 23 S. W. 500, negligence
is question of fact to be determined by jury; arguendo in Houston
etc. Ry. V. Fowler, 56 Tex. 460.
No Reversal Where Error in Oharge did not operate to appellant's
prejudice.
Approved in Brown v. Presoler (Tex. Sup.), 1 S. W. 467, and Smith
V. Fordyce (Tex. Sup.), 18 S. W. 665, and Gulf etc. Ry. v. Killebrew
(Tex. Civ.), 20 S. W. 1006, all following rule; De Montel v. Speed,
53 Tex. 343, no reversal where erroneous charge operated no injury
to defendants; Burnett v. Waddell, 54 Tex. 276, reversing judgment
where judge charged appellee was entitled to specific sum; Gaston
V. Daahiell, 55 Tex. 520, no error in charge where jury could find
no other verdict; Atkinson v. Ward, 61 Tex. 385, no reversal granted
53 Tex. 213-224 NOTES ON TEXAS EEP0BT8. 958
unless yoLTj could find other verdict from charge; Nave ▼. Britton,
^1 Tex. 575, judgment not reversible where verdict would not be
altered by charge asked; Bowles v. Brice, 66 Tex. 731, 2 S. W. 733,
no reversal where no other verdict could be given, although er-
roneously charged; Hussey v. Moser, 70 Tex. 45, 7 8. W. 607, no
reversal where verdict is same as if charged as asked; Lee v. Wei-
borne, 71 Tex. 502, 9 8. W. 472, appellants cannot complain of
erroneous charge in their favor; Mexican Cent. By. v. Lauricella, 87
Tex. 281, 47 Am. St. Rep. 106, 28 S. W. 279, no reversal for er-
roneous charge where verdict would be the same; St. Louis etc. Ry. v.
Campbell (Tex. Civ.), 34 S. W. 186, following rule where the verdict
rendered was the only one that could have been rendered; Gulf etc.
Ry. V. Jones, 1 Tex. Civ. 375, 21 S. W. 146, no reversal where judge
gave correct charge but omitted means of procedure in determining
verdict; Texas etc. Ry. v. Johnson, 2 Tex. Ap. Civ. 155, no reversal
for erroneous charge where complaining party is not injured.
A Party Acquiescing in a Charge must show that it operated to his
prejudice to obtain a reversal.
Approved in Smith v. Fordyce (Tex. Sup.)i 18 8. W. 665, appellate
court will only consider material errors where appellant does not
except to charge.
63 Tex. 21^221, BTBNES ▼. MOBBI&
Answer of Witness stating he knew from the actions of plaintiff
that he had abandoned a certain sheriff's sale was properly excluded.
Approved in Norwood v. Alamo etc. Ins. Co., 13 Tex. Civ. 480,
35 8. W. 719, error to allow witness. to give opinion concerning writ-
ten contract.
Fact Tliat Purchaser had Waited Bights acquired by execution
sale by procuring a second sale under another execution upon same
judgment does not operate as an estoppel where the rights of com-
plainant accrupd before the second sale.
Approved in Carden v. Short (Tex. Civ.), 31 S. W. 248, holding that
one is estopped from claiming a homestead in property conveyed
when he has made affidavit that other property was his homestead.
Bill of Exception merely reciting court refused to give plaintiff's
instructions is not specific.
Approved in Carter v. Roland, 53 Tex. 544, court will not pass
upon assignments in general terms; Cameron v. Fay, 55 Tex. 64,
court will not consider assignment which is not specific; Cannon v.
Cannon, 66 Tex. 686, 3 S. W. 39, court will not consider assignment
including four distinct propositions; Handel v. Kramer, 1 Tex. Ap.
Civ. 473, assignment of errors must be specific; Driseoll v. Morris, 2
Tex. Civ. 605, 21 8. W. 630.
One Who Bids in Land at sheriff's sale under agreement with judg-
ment debtor to make purchase for his benefit, holds land in trust.
See note, 102 Am. St. Rep. 236.
Miscellaneous. — McKinion v. McGowan, 2 Posey U. C. 289, cited
as showing full history of the litigation in case at bar.
53 Tex. 221-224, BBOWN v. PFOUTS.
Plaintiff will not Obtain a Nonsuit voluntarily when the defendant
reconvenes.
Approved in Williams v. Williams (Tex. Civ.), 38 8. W. 262, de-
fendant seeking affirmative relief under a cross-bill filed before dis-
959 NOTES ON TEXAS REPORTS. 53 Tex. 224-244
missal is entitled to be heard in his cross-bill. See note, 15 L. R. A.
(n. B.) 345.
63 Tez. 224-229, lilNEB v. MOOBE.
Mecbaaic'B Uen Is Created by Law, and not by statute.
Approved in Bunton y. Palm (Tex. Sup.); 9 S. W. 183, a loan of
money to enable the borrower to erect buildings will not support a
mechanic's lien.
53 Tex. 229-234, WAIJ.AOE v. OAMPBEUi.
Trust Property Conveyed to Trustee on condition of not being
subject to debts of cestui que trust is not subject to execution.
Approved in Mason v. Rhode Island etc. Co., 78 Conn. 85, 61 Atl
58, reaffirming rule; Patten v. Herring, 9 Tex. Civ. 646, 29 S. W. 390,
testator creating trust can stipulate property shall be exempt for
debts of cestui que trust; Seymour v. McAvoy, 121 Cal. 442, 53 Pac.
947, 41 L. R. A. 544, author of trust can provide that beneficiary's
interest shall not be assignable nor subject to lien; White v. Dedmon
(Tex. Civ.), 57 S. W. 872, grantor's effort to restrict alienation is
null where he conveys absolute title. See notes, 97 Am. Dec. 306,
313, 314, 315; 24 Am. St. Rep. 693.
Distinguished in Sprinkle v. Leslie, 36 Tex. Civ. 357, 81 S. W. 1018,
restraint on alienation in devise of life estate repugnant and void.
Cxediton Iievying on Property of Cestui Que Trusty knowing legal
title is in trustee, are chargeable with notice of trust.
Approved in Monday v. Vance, 92 Tex. 433, 49 S. W. 518, bene-
ficiaries cannot alienate trust estate to defeat trust; Simonton v.
White, 93 Tex. 57, 77 Am. St. Rep. 828, 53 S. W. 341, purchasers
from trustee restrained from alienating by trust take property with
notice; Monday v. Vance (Tex. Civ.), 51 S. W. 349, an equitable es-
tate for life carries no power of alienation.
53 Tex. 236-238, I>OS8 V. SLAUGHTEB.
A I«ocatiye Interest Contract is one for the joint acquisition of
land, and the subsequent patentee holds the title in trust to the
extent of the beneficiary's interest under the contract.
Cited in note in 78 Am. Dec. 582.
53 Tex. 238-244, CAMEBON ▼. BOMELE.
Poflseflslon by Vendor for Less Time than to remove from premises
not sufficient to give subsequent purchaser notice of title.
Approved in Bamirez v. Smith (Tex. Civ.), 56 S. W. 259, purchaser
must inquire as to the title and interest of person in possession;
Bumpas v. Zachary (Tex. Civ.), 34 S. W. 672, continued possession
by a grantor of a lot conveyed by mistake is constructive notice to
vendee of the grantee; Smith v. James, 22 Tex. Civ. 156, 54 S. W.
43, possession is constructive notice of title of possessor; Saunders
V. Isbell, 5 Tex. Civ. 515, 24 S. W. 308, holder of equitable title
must show purchaser of legal title had notice. See note, 13 L. R. A.
(n. 8.) 53, 120.
The Law will not Cancel a Deed for a vendor which was made to
protect property from liability for vendor's debts.
Approved in Biering v. Flett (Tex. Sup.), 7 S. W. 232, vendor
cannot dispute the validity of a sale made to hinder his creditors.
Olving PromijBSory Note payable to bearer is as effectual as pay-
ment in cash.
53 Tex. 245-257 NOTES ON TEXAS BEPOBTS. 960
Approved in Weaver v. Nugent, 72 Tex. 278, 13 Am. St. Bep. 797,
10 S. W. 460, no error to charge promissory note was valuable con-
sideration; Dodd V. Gaines, 82 Tex. 435, 18 S. W. 620, promissory
notes given by vendee, knowing fraud of vendor, is not valid con-
sideration; Wilson V. Denton, 82 Tex. 536, 27 Am. St. Bep. 913, 18
S. W. 622, purchase of negotiable note with a negotiable note makes
the purchaser a bona fide holder; Watkins v. fiproull, 8 Tex. Civ.
431, 28 8. W. 358, purchaser paying part cash and giving note is pur-
chaser for value; Taylor v. Callaway, 7 Tex. Civ. 471, 27 S. W. 939,
giving of promissory note without notice makes giver a bona fide
holder.
Where Both Vendor and Vendee are in possession, possession of
former is not notice as to' third party paying full price.
See notes, 13 L. B. A. (n. s.) 115; 1 L. B. A. (n. a.) 1012.
Miscellaneous.— Cited in Bivera v. White, 94 Tex. 540, 63 S. W.
126, and Meyer v. Miller (Tex. Civ.), 23 S. W. 994, holding proof
that a person is a granddaughter is not sufficient to show that she
is entitled to inherit her grandparent's estate.
63 TeoL 245-251, FBBGUSON v. ABHBELIi.
Bill of Particulars not Snificlently Certain and specific does not
comply with statute to secure lien.
Approved in Meyers v. Wood, 95 Tex. 71, 65 S. W. 176, following
rule; Lee v. O'Brien, 54 Tex. 636, no lien granted where plaintiff
did not follow statutory requirements; Warner etc. Mfg. Co. v.
Houston (Tex. Civ.), 28 S. W. 407, one must substantially comply
with statute to obtain a mechanic's lien; Sedwick v. Patterson, 2
Posey U. C. 353, demurrer sustained to petition showing require-
ments of statute not followed; Murphey v. Heidenheimer, 2 Posey
TJ. C. 723, to fix and secure a mechanic's lien, one must show a sub-
stantial compliance with the statute in every essential particular.
53 Tex. 251-257, BABELET T. TAB&AKT OOUNTY.
Beport of Auditor not in Besponae to Pleadings should to that ex-
tent be excluded.
Approved in Kendall v. Hackworth, 66 Tex. 506, 18 S. W. 105,
matters in report of auditor not pleaded should not go to jury; Hunt
V. Ullibari (Tex. Civ.), 35 8. W. 300, unnecessary to state the grounds
of exceptions to an auditor's report; Moore v. Waco Building Assn.,
9 Tex. Civ. 407, 28 S. W. 1034, items in auditor's report not pleaded
should not go to jury.
General Notice by Defendant of attacking items in auditor's re-
port is objectionable.
Approved in Dwyer v. Kalteyer, 68 Tex. 559, 5 S. W. 77, report
of auditor will stand, unless specific exceptions be taken; Bichie v.
Levy, 69 Tex. 138, 6 S. W. 688, party contesting auditor's report
must do so specifically. See note, 62 Am. Dec. 506.
Court Should Instruct Jury what true issues are, not leave the jury
to evolve such issues from pleadings.
Approved in Houston Elec. Co. v. Nelson, 34 Tex. Civ. 73, 77 S.
W. 979, reaffirming rule; Bering Mfg. Co. v. Femelat, 35 Tex. Civ.
41, 79 S. W. 872, applying rule to personal injury case where com-
plaint did not charge negligence as matter of law.
Ml NOTES ON TEXAS EEPOETS. 53 Tex. 257-283
63 Tez. 257-263^ McDAKTEIi T. WEISS.
Certified Copy from Becorde of district court are admissible with-
out statute.
Approved in Kerr v. Oppenheimer, 20 Tex. Civ. 143, 49 S. W.
151, applying rule to admission of certified copy of judgment.
Conveyance by Husband to Wife vests property in community, and
subject to execution against husband.
Approved in Donovan v. Ladner, 3 Tex. Civ. 206, 22 S. W. 62,
defendants could avail themselves of other pleas after pleading es-
toppel; Swink V. League, 6 Tex. Civ. 311, 25 S. W. 807, a conveyance
to either spouse during coverture vests title in community. See
notes, 86 Am. Dec. 638, 643; 96 Am. Dec. 423.
53 Tex. 264-266, MABZ v. ABBAM80N.
Affidavit for Attacbment cannot be amended.
Approved in Smith v. Wallis, 18 Tex. Civ. 403, 45 8. W. 820, mo-
tion to quash affidavit granted where amendment was offered. See
notes, 61 Am. Dec. 129; 31 L. B. A. 426.
Distinguished in Chapman v. Pittsburg etc. E. E., 26 W. Ya. 312,
affidavit for foreign attachment can be amended; Booth v. Denike,
65 Fed. 45, federal court has power to grant amendment to affidavit
in attachment.
Amended Petition, not Verified, will not cure defective affidavit.
Approved in Lutterlosh v. Mcllhenny Co., 74 Tex. 76, 11 8. W.
1064, no lien granted in a cause of action, where writ issued on an-
other; Avery v. Zander, 77 Tex. 209, 13 S. W. 972, amended petition
cannot cure defects in affidavit; Greer v. Eichardson Drug Co., 1
Tex. Civ. 639, 20 S. W. 1129, amended petition will cure defects of
petition where attachment has issued; Beville v. Boyd, 16 Tex. Civ.
495, 41 S. W. 672, arguendo in an attachment suit.
53 Tez. 274-283^ ZndPELUCAN v. EOBB.
Wife Deserted by Husband can manage, control, and dispose of
community property, at her discretion.
Approved in Schwulst v. Neely (Tex. Civ.), 50 8. W. 609, reaffirm-
ing rule; Eoos v. Basham, 41 Tex. Civ. 553, 91 S.'W. 657, wife, with
husband's consent, may convey community real estate standing in her
own name; Woodson v. Massenberg, 3 Tex. Civ. 148, 22 S. W. 107,
wife can dispose of community property when deserted by husband:
Houston etc. Ey. v. Lackey, 12 Tex. Civ. 234, 33 S. W. 770, wife,
when deserted, can recover damages for causing depreciation to com-
munity property; St. Louis etc. Ey. v. Griffith, 12 Tex. Civ. 636, 35
8. W. 744, wife can maintain action alone for tort when deserted by
husband; Fermier v. Brannan, 21 Tex. Civ. 547, 548, 53 S. W. 701,
wife can execute deed of trust of community property when de-
serted; Noel V. Clark, 25 Tex. Civ. 143, 60 8. W. 359, holding mar-
ried woman cannot give promissory note, unless for statutory excep-
tions. See notes, 60 Am. Dec. 205; 64 Am. St. Eep. 862.
Distinguished in Sadler v. Niess, 5 Wash. 189, 31 Pac. 632, con-
veyance by husband when deserted is voidable.
Legal Effect of Deed to Husband alone of community property
makes it a deed to community.
Approved in Edwards v. Brown, 68 Tex. 336, 6 8. W. 89, commu-
nity property belongs beneficially to both, though legal title is
conveyed to one. See note, 34 Am. St. Eep. 872.
2 Tex. Notefl^-61
53 Tex. 284-297 NOTES ON TEXAS BEPOBTS. 062
Conveyance by Heizs is Superior to a prior unrecorded eonyej-
ance from the ancestor, where there was not actual notice.
BeafBrmed in Meyer t. Hale (Tex. Civ.), 23 S. W. 993.
Quaere, Where Land Certificate was issued to one as a married man
and head of family, when in fact he was not married to the woman
with whom he lived as such, whether the woman was not entitled to
one-half the certificate in the nature of a joint acquisition as his
partner.
Cited in Morgan v. Morgan, 1 Tex. Civ. 318, 21 S. W. 155, woman
who in good faith marries man is entitled to share property jointly
acquired notwithstanding nullity of man's previous divorce.
58 Tex. 28^289, BED v. JOHNSON.
Building Used for School Purpoees and Residence is not exempt
from taxation.
Approved in Watson t. Cowles, 61 Neb. 217, 85 N. W. 35, reaffirm-
ing rule; Morris v. Lone Star Chapter etc., 68 Tex. 701, 705, 5 S. W.
520, 522, error for court to exempt property leased for profit; Bed
V. Morris, 72 Tex. 555, 10 S. W. 681, property used exclusively for
school purposes exempt from taxation; Edmonds v. San Antonio,
14 Tex. Civ. 157, 36 S. W. 496, property used for school purposes,
and occupied as residence, subject to taxation; San Antonio v. Seeley
(Tex. Civ.), 57 S. W. 689, injunction against assessor dismissed where
portions of property not used for school purposes. See notes, 69
Am. Dee. 199; 21 L. B. A. (n. s.) 172, 173; 19 L. B. A. 292; 10 L.
B. A. 376.
Distinguished in Cassiano v. Ursuline Academy, 64 Tex. 676, lands
around school, cultivated to supply table necessaries, are exempt;
State ▼. Johnston, 214 Mo. 668, 113 S. W. 1086, military school
exempt, though owner and family lived therein, where conducting
the school was their sole employment.
Petition Averring Sale Would Cloud Title not sufficient to justify
enjoining collection of taxes.
Approved in Blanc v. Meyer, 59 Tex. 92, district court will not
enjoin collection of taxes to prevent cloud on title. See note, 22.
L. B. A. 706.
Distinguished in Galveston Gas Co. y. Galveston Co., 54 Tex. 292,
where taxes are paid under protest to prevent sale of the property,
the payment may be recovered if sought with reasonable promptness.
District Court has Power to Grant Belieif where equity would issue
injunction, though amount be not sufficient to give jurisdiction.
Approved in Anderson Co. v. Kennedy, 58 Tex. 623, district court
can issue injunction without reference to amount involved, where
equity could do 90; Court v. O'Connor, 65 Tex. 339, district court
will enjoin collection of taxes illegally assessed; Galveston etc. By.
V. Dowe, 70 Tex. 3, 6 S. W. 792, district court can issue writ of in-
junction, where equity would issue it. See note, 8 L. B. A. 729.
53 Tex. 289-297, 37 Am. Bep. 753, STEWABT T. INTEBNATIONAL
ETC. B. &
Common Carrier's Contractual Belations with passengers do not
cease when passenger safely alights at depot, but it must provide
reasonable accommodation at stations.
Approved in Chicago etc. By. Co. v. Barrett, 35 Tex. Civ. 367, 80-
S. W. 661| same degree of care applies to passenger on depot plat-
963 JTOTES ON TEXAS REPORTS. 53 Tex. 298-304
form; Texas etc. Ry. y. Majes (Tex. Ap.), 15 S. W. 43, company
must provide ample accommodations for its passengers at its sta-
tions; Galveston etc. Ry. v. Thornsberry (Tex. Sup.), 17 S. W. 523,
company must keep the passageways to its stations well lighted;
Texas etc. Ry. v. Mays, 4 Tex. Ap. Civ. 226, 15 S. W. 43, granting
damages where passenger took cold in waiting-room, waiting for
train; Pordyce v. Merrill (Ark.), 5 8. W. 329, and Missouri etc. Ry.
v. Miller, 8 Tex. Civ. 245, 27 S. W. 906, company must provide suffi-
cient lights at its depots; Texas etc. Ry. v. Hudman, 8 Tex. Civ.
313, 28 S. W. 390, company liable for not making safe approaches
to its grounds; Gulf etc. Ry. v. Glenk, 9 Tex. Civ. 605, 30 8. W.
279, company is liable for injury from unsafe sidewalk approaches;
Texas etc. Ry. v. Lee, 21 Tex. Civ. 176, 51 S. W. 362, company is
bound to stop long enough to allow passengers to alight; Mont-
gomery etc. Ry. v. Thompson, 77 Ala. 457, 54 Am. Rep. 74, company
is liable for defective property causing injury to licensee; Alabama
etc. R. R. V. Arnold, 84 Ala. 167, 5 Am. St. Rep. 357, 4 So. 363,
company should provide ample accommodations for passengers; Texas
etc. Ry. v. Orr, 46 Ark. 195, company liable to licensees for injuries
sustained by maintaining nuisance; Fordyce v. Merrill, 49 Ark. 27l>,
5 S. W. 329, company liable, where passenger was injured by lack
of lights; Cincinnati etc. R. R. v. Peters, 80 Ind. 178, majority
holding passenger could not recover, where guilty of contributory
negligence; Louisville etc. Ry. v. Lucas, 119 Ind. 590, 21 N. E. 971, 6
L. R. A. 193, company liable where passenger fell into hole in plat-
form from insufficient light; Missouri etc. Ry. v. Neiswanger, 41 Kan.
626, 13 Am. St. Rep. 308, 21 Pac. 583, company liable for injuries
caused by falling from platform. See notes, 64 Am. Dec. 524; 2
Am. St. Rep. 40; 2 Am. St. Rep. 154; 20 L. R. A. 520; 11 L. R. A.
720; 3 L. R. A. 74.
53 TeoL 298-304, PEYTON T. BARTON.
Statate of LtmltaticmB Does not Bun in favor of junior title to
land not actually possessed.
Approved in Howard v. Kellam (Tex. Sup.), 8 8. W. 94, and Ma-
son V. Stapper (Tex. Sup.), 8 S. W. 599, both reaffirming rule; Bun ton
T. Cardwell, 53 Tex. 412, applying rule where possession by junior
title is not on land in dispute; Parker v. Bains, 59 Tex. 17, 18, citing,
but not applying rule to possession under void judgment; Evitts v.
Roth, 61 Tex. 85, entry of true owner interrupts constructive pos-
session to junior title to land not inclosed; Frisby v. Withers, 61
Tex. 143, possession by junior title supports plea of limitation against
all except superior title; Parker v. Baines, 65 Tex. 611, error for
court to charge in favor of junior title when not in possession of all
land; Porter v. Miller, 76 Tex. 596, 13 S. W. 556, actual possession
of defendant under different grant not extended by construction;
Turner v. Moore, 81 Tex. 209, 16 8. W. 930, applying rule where
defendant claiming under quitclaim deed did not occupy land; Hous-
ton V. Brown (Tex. Sup.), 8 S. W. 320, holding adverse possession
is limited to lands actually described in deed; Faison v. Primm (Tex.
Civ.), 34 8. W. 835, actual possession of land by one does not confer
title on another; Freedman v. Bonner, (Tex. Civ.), 40 S. W. 48,
statute of limitation applies only to the land actually occupied
adversely; Mc Adams v. Moody (Tex. Civ.), 50 8. W. 629, small en-
croachments upon a survey will not support the statute of limitation;
53 Tex. 305-330 NOTES ON TEXAS BEPORTS. 964
Boach Y. netcher, 11 Tex. Ciy. 229, 32 8. W. 588, holder of jnnior
title takes no title \>j possession to property not occupied. See note,
70 Am. Dec. 122.
53 Tex. 805-318, DAVIS ▼. BOOSVELT.
To Defeat Becovery, Defendant should either tender the unpaid
purchase money, or otherwise proffer to do equity.
Beaffirmed in Dixon ▼. National Loan etc. Go. (Tex. dv.), 40 S.
W. 544.
Intervener Asking No InstmctiOQB regarding his rights is not en-
titled to new trial because charge did not present law fully.
Approved in Texas etc. By. ▼. Gay, 86 Tex. 609, 26 S. W. 615, 25
L. B. A. 52, no reversal for charge correct as to facts but not apply-
ing law.
Omission of Star from Seal not fatal where no form of seal pre-
scribed,
t See note, 108 Am. St. Bep. 554.
53 Tex. 318-330, 37 Am. Bepi 756, HOUSTON ETC. & & T. WIUJB.
Statement by Engineer to Injured Coemployee, showing reckless-
ness of engineer, admissible to prove careless selection by company.
Approved in Texas etc. By. v. Bowland, 3 Tex. Civ. 162, 22 S.
W. 136, testimony tending to show intemperance of company's agent
admissible; International etc. By. v. Telephone etc. Co., 69 Tex. 281,
5 Am. St. Bep. 47, 5 S. W. 518, declaration by agent outside of the
scope of his authority is not admissible. See* notes, 131 Am. St.
Bep. 311, 335; 14 L. B. A. (n. s.) 772; 48 L. B. A. 371; 41 L. B. A.
94.
Distinguished in Bouston v. Detroit United By., 151 Mich. 241, 115
N. W. 63, rejecting statement of motorman that his car was not work-
ing made eighteen hours before accident.
In Measuring Damages for liBSsened Ability to Labor, the life of
plaintiff is to be calculated upon reliable basis of average duration of
human life.
Approved in Galveston etc. By. v. Cooper, 2 Tex. Civ. 49, 20 S.
W. 992; testimony of actuary regarding probable life of man admis-
sible; Bourke v. Butte Electric etc. Co., 33 Mont. 288, 289, 83 Pae.
475, 476, allowing value of annuity equal to difference between plain-
tiff's earnings before and after injury; Florida By. etc. Co. v.
Webster, 25 Fla. 425, 5 So. 722, applying rule for measuring damages
where not totally disabled to labor.
Ballway Company not Negligent in selecting competent engineer is
not liable for injuries to brakeman resulting from such engineer's
want of proper care.
Approved in I. & G. N. B. B. v. Both, 2 Posey U. C, 246, burden
is on plaintiff to prove damages resulting from carelessness of coem-
ployee. See notes, 14 L. B. A. (n. s.) 758, 760; 48 L. B. A. 371; 25
L. B. A. 711.
Section 2 of Act of BCarch 21, 1874, fixing venue in certain eases,
and section 2 of act of April 17, 1874, conferring jurisdiction in
certain cases, did not repeal, by implication, the provisions of act
of 1854 (article 4888, Paschal's Digest), but were intended aa cumula-
tive.
Explained in Houston etc. B. B. v. Ford, 53 Tex. 370, explaining
the scope and object of both of said acts.
965 NOTES ON TEXAS BEPOBTS. 53 Tex. 330-353
68 Tex. 330-339, 37 Am. Bepu 758, BBEMNAN ▼. WEATHEBFOBD.
Oreation of Corporate Ftanchlse ia an attribute of sovereignty,
exercisable hy itate alone.
Approved in People v. Bancroft, 2 Idaho, 1085, 3 Idaho, 365, 29
Pac. 115, mnnicipal corporation, incorporated according to statute,
surrenders its charter to state on dissolution. See note, 53 Am. Dec.
473.
Demurrer to Petition attacking existence of corporation collaterally
should be sustained; remedy by quo warranto proceedings.
Approved in White t. Quanah (Tex. Civ.), 27 S. W. 840, reaffirm-
ing rule; McCrary t. Comanche (Tex. Civ.), 34 S. W. 680, in ac-
tion to recover taxes due the city, defendant cannot attack the
legality of plaintiff's corporate existence; Higgins v. Bordages (Tex.
Civ.), 28 8. W. 352, defendant cannot attack the legality of the
corporate existence of a city to defeat recovery of possession of
property sold for taxes; Eustis v. Henrietta (Tex. Civ.), 37 S. W.
636, a de facto municipality can collect taxes until its existence Is
attacked by the state in a direct proceeding; Troutman v. McClesky,
7 Tex. Civ. 562, 27 S. W. 173, no injunction to restrain collection of
taxes for invalidity of existing corporation.
Distinguished in Milliken v. City Council, 54 Tex. 391, granting
mandamus in suit against alderman; Lum v. Bowie (Tex. Sup.), 18
8. W. 144, holding city can be restrained from collecting taxes where
it has extended its limits without the consent of the electors.
53 Tex. 339-343» DE MONTEL ▼. SPEED.
Iiocator's Bight to Land Attaches when he files his location and
applies for survey.
Approved in Bassett v. Brewer, 74 Tex. 556, 12 S. W. 230, ma-
terialman's lien not forfeited where filed but not recorded within
time; Jones v. Lee, 86 Tex. 41, 22 S. W. 394, cotenants cannot devest
rights of other cotenants located by land certificates; Cuellar v.
Dewitt, 5 Tex. Civ. 573, 24 S. W. 673, pre-emptor entitled to patent
on fulfilling conditions of statute.
Survey not Authorized Where Locator is not a settler, and locator's
assignee has no rights unless actual settler.
Approved in McCarthy v. Gomez, 85 Tex. 16, 19 8. W. 1001, de-
murrer should be overruled where petition alleges applicant was not
settler; Swetman v. Sanders, 85 Tex. 298, 20 8. W. 126, survey of
land under statute void where applicant was not settler; Jones v.
Hart (Tex. Civ.), 25 8. W. 704, a mere temporary renter is not a
settler and cannot claim benefits of homestead rights.
Judgment will not be Beyersed where no objection is made to
general verdict defective in form.
Approved in Bowles v. Brice, 66 Tex. 731, 2 8. W. 733, judgment
not reversed where error is immaterial to complaining party.
53 Tex. 343-353, HOUSTON ETC. B. & T. ODUM.
Charter to Build Bailroad to City imparts authority to extend road
within corporate limits.
Approved in Galveston etc. By. v. Galveston (Tex. Civ.), 37 8.
W. 31, legislature can allow a railroad to build its road in the streets
of a city subject to the assent of municipal authorities; Colorado
etc. By. V. Union Pac. By., 41 Fed. 302, company could build to ter-
minus conferred by charter unless it elected another.
53 Tex. 354r-363 NOTES ON TEXAS BEPOBTS. 906
Part of Act Authorizing Ezteiuion of Boad not foreign to object
expressed in title does not make act invalid.
Approved in City of Oak Clifl v. State (Tex. Civ.), 77 S. W.
27, applying rule to act consolidating two cities; Day Land etc. Co. v.
State, 68 Tex. 543, 4 S. W. 872, holding statute valid where subject to
be controlled is single; Floeck v. State, 34 Tex. Cr. 324, 30 S. W. 798,
holding act valid where entire subject embraced is germane to cap-
tion.
It Seems Th»t^ if Use of a Street by a Bailroad defeats the pur-
pose of the dedication of the street, an abutting lot owner may claim
protection regardless of who owns the fee of the street.
Approved in G. C. etc. B. B. v. Eddins, 60 Tex. 667, abutting
owner has right of action against party who specially injures hiv
easement in the street, regardless of ownership of fee to the street.
See note, 5 L. B. A. 373.
The Use of a Street by a Bailroad is not ordinarily inconsistent
with its continued use for the common purposes of a street.
Approved in Bische v. Texas Transp« Co., 27 Tex. Civ. 35, 66 S. W.
326, refusing to enjoin use of street by street railway company for
transporting passengers and freight; Fort Worth etc. By. v. Jennings,
76 Tex. 375, 13 S. W. 270, 8 L. B. A. 180, arguendo, while holding one
railway cannot convey unused portion of its right of way to another
road.
Adjacent Lot Owner has No Bight to Compensation for use of street
authorized by statute.
Approved in G. C. etc. B. B. v. Eddins, 60 Tex. 661, adjacent lot
owner cannot recover compensation where street is not exclusively
appropriated; 6. C. etc. By. v. Graves, 1 Tex. Ap. Civ. 303, abut-
ting lot owner cannot claim damages where company appropriates
part of street.
Distinguished in G. C. etc. By. v. Thompson, 2 Tex. Ap. Civ. 501,
petition for damages not governed by rule.
Compensation is Due Adjoining Lot Owner for entire destruction
of street.
Approved in G., C. & Santa Fe B. B. Co. v. Eddins, 60 Tex. 662,
following rule; Davidson v. H. E. etc. By., 3 Tex. Ap. Civ. 474, evi-
dence showing enhancement of value of adjoining land to offset dam-
ages. See notes, 4 Am. St. Bep. 402; 51 Am. Dec. 620.
Distinguished in Williams v. G. C. etc. B. B., 1 Tex. Ap. Civ. 132,
reversing where charge was in accordance with rule
Journals of Legislature may show passage of bill if chief officers
of both houses failed to officially certify it.
See note, 23. L. B. A. 345.
Miscellaneous. — Cited in Gunderman v. Missouri ete. By. Co., 53
Mo. Ap. 379, to point that carriers are not insurers of the safety
of their passengers. See note, 73 Am. Dec. 216.
53 Tex. 354-363, RHINE T. CITY OF McKINNET.
Commissioners to Assess Damages in condemning property should
be appointed by unbiased party and by corporation to be benefited.
Approved in Ingram v. Maine Water Co., 98 Me. 573, 57 Atl. 894,
trial by jury not matter of right in eminent domain proceeding;
Locke V. Highway Commissioner, 107 Mich. 632, 65 N. W. 558, hold-
ing decision of township board invalid where members were disqual-
ified.
967 NOTES ON TEXAS REPORTS. 53 Tex. 364-378
DistingDished in Hutcheson v. Storrie (Tex. Ciy.), 48 S. W. 789,
on the facts and holding that citizens are charged with notice of
all proceedings of city council connected with the levy of taxes, gen-
eral or local.
Act Allowing Corporation, of Its Own Motion, to appoint three
freeholders to assess damages in opening streets declared unconsti-
tutional.
Approved in Gulf etc. Ry. v. Ellis, 70 Tex. 310, 7 S. W. 723, hold-
ing act delegating power to open roads to commissioner's court un-
constitutional; Armstrong v. Traylor, 87 Tex. 603, 30 S. W. 441,
holding statute authorizing owner of premises to impound and sell
stock unconstitutional; Dilworth v. State, 36 Tex. Cr. 192, 36 S. W.
276, holding statute prohibiting length of fence invalid; Porter v.
Abilene, 4 Tex. Ap. Civ. 222, 16 S. W. 107, holding void proceedings
condemning property when not following statute.
Distinguished in Vogt v. Bexar Co., 16 Tex. Civ. 571, 42 S. W.
129, holding constitutional the law regulating the making of roads.
03 Tex. 364-872, HOUSTON ETC. & S. v. FOBD.
Subsequent Act Passed at Same Legislature does not repeal former
when it makes more general the right to sue in the manner prescribed
in the first act.
Approved in State v. Rotwitt, 17 Mont. 48, 41 Pac. 1006, holding
two statutes valid if operating in harmony; Congdon v. Butte etc.
By., 17 Mont. 485, 43 Pac. 631, holding two statutes valid where not
repugnant.
Liberal Construction Should be Allowed against repeal by implica-
tion of first by second act.
Approved in Laughter v. Seela, 59 Tex. 183, courts should not
resort to technical subtleties to defeat purpose of statute.
Plaintiff Purchasing Ticket from one not held out as company's
agent does so at his peril.
Approved in Buzard v. Jolly (Tex. Sup.), 6 8. W. 424, principal
is not bound by acts of a special agent in absence of proof that he
held him out as his agent; Comer v. Foley, 98 Ga. 683, 25 S. E. 673,
purchaser of ticket from scalper purchases with notice. See note, 68
Am. Dec. 571.
Miscellaneous. — Cited in Gulf etc. Ry. Co. v. Riney, 41 Tex. Civ.
401, 92 S. W. 56, good faith no excuse for plaintiff attempting to ride
on expired round-trip ticket. See note, 5 L. R. A. 820.
53 Tex. 372-378, FREEMAN v. MILLEB.
Judgment can be Rendered Against Qaxnlsliee failing to answer
or make sufficient excuse.
' Approved in Marx v. Epstein, 1 Tex. Ap. Civ. 769, judgment against
garnishee reversed where he showed good faith in compliance with
writ. See note, 53 Am. St. Rep. 445.
Qamlshee may Set Aside Judgment by suit in equity showing that
failure to make answer is not attributable to himself.
Approved in Ratto v. Levy, 63 Tex. 281, no error in judgment
where appellant's failure was not result of acts of appellee; Ander-
son V. Oldham, 82 Tex. 231, 18 S. W. 558, petition for injunction
refused where petition failed to show valid excuse; Adams v. First
Nat. Bank (Tex. Civ.), 52 S. W. 643, to set aside a judgment one
must show that he was prevented by fraud or accident, and with-
out negligence in himself or agent in making answer; Builey v.
53 Tex. 379-386 NOTES ON TEXAS REPORTS. 968
BoydBtun (Tex. Civ.), 33 S. W. 283, judgment of a court of com-
petent jurisdiction will not be set aside where defendant had an
opportunity to be heard; Oregon Ry. etc. Co. v. Gates, 10 Or. 518,
granting injunction where plaintiff was diligent to correct mistake;
Rader v. Barr, 37 Or. 458, 61 Pac. 1028, judgment debtor may set
aside cost bill where he shows good defense. See note, 30 L. R. A.
362, 704, 799.
Where Judgment of Lower Oourt is correct, and equities of parties
are equal, it will not be reversed on appeal.
Approved in Galveston etc. Ry. v. Dowe, 70 Tex. 4, 6 S. W. 793,
district court will not review errors of justice court; Foust v. War-
ren (Tex. Civ.), 72 S. W. 406, service of justice summons presumed
to have been made by authorized person. See note, 30 L. R. A. 787.
63 Tez. S79-382, DUBEN ▼. STRONG.
Plaintiff can Becover from Grantee of Lessee where he shpws prior
peaceful possession, never abandoned.
Approved in Magerstadt v. Lambert, 39 Tex. Civ. 474, 87 8. W.
1069, possession sufficient ground for recovery against naked tres-
passers; House V. Reavis, 89 Tex. 630, 35 S. W. 1064, holding prior
possession by plaintiff is prima facie evidence of title; Foster v.
Johnson, 89 Tex. 646, 36 S. W. 69, holding defendant must prove
Bui)erior title where son of prior possessor sues; Watkins v. Smith,
91 Tex. 592, 45 S. W. 561, holding constructive possession of unin-
closed land evidence of title.
Distinguished in Veatch v. Gray, 41 Tex. Civ. 152, 91 S. W. 328,
denying recovery on ancestor's possession of part of land more than
fifty years before; Collyns v. Cain, 9 Tex. Civ. 200, 28 8. W. 548,
prior possession takes no title against state or public domain.
63 Tez. 382-386, STEINBBCK ▼. STONE.
Deecrlption, Giylng Name of County where land is situated and
referring to three recorded deeds, is sufiicient.
Approved in Rogers v. McLaren, 53 Tex. 426, confusion in de-
scription is cured by subsequent allegation referring to deed;
Knowles v. Torbitt, 53 Tex. 558, description setting out county,
number of acres, and particular claim, is sufficient; Bowles v. Beal,
60 Tex. 324, deed referring to sheriff's deed is sufficient; Falls Land
etc. Co. V. Chisholm, 71 Tex. 526, 9 S. W. 481, description in deed
conveying all lands not sold in patent sufficient; Wright v. Lassi-
ter, 71 Tex. 643, 10 S. W. 297, reference to deed on record sufficient;
Westmoreland v. Carson, 76 Tex. 622, 13 S. W. 559, it was error to
admit instrument executed by defendants over defendants' objec-
tion to description; Lumpkin v. Silliman, 79 Tex. 167, 15 S. W. 231,
reference to deeds ie sufficient description; Goldman v. Douglass,
81 Tex. 650, 17 S. W. 235, error to arrest judgment where descrip-
tion was same except place omitted; Norton v. Conner (Tex. Sup.),
14 S. W. 195, a deed is sufficient when it refers to a specific survey
and field-notes; Brown v. Elmendorf (Tex. Civ.), 25 8. W. 148, de-
scription referring to a deed recorded in Bexar county is valid;
Thompson v. Jones (Tex. Sup.), 12 S. W. 79, a judgment and order
of eale describing the premises by giving the county, the adjoining
survey, the beginning stake, and the number of acres, is good; Cox
V. Hart, 145 U. S. 388, 12 Sup. Ct. Rep. 967, 36 L. R. A. 746, admit-
ting marshal's deed describing land lying in a certain district.
»69 NOTES ON TEXAS BEPORTa 53 Tex. 387-412
63 Tez. 387-401, STATE ▼. DE OBESS.
IMstrlct Oonrt lias JnrlBdlctioii of Qao Warranto proceeding to oust
mayor, being a civil case and salary of ofSce is over f^ve hundred
dollars.
Approved in Milliken v. City Council, 54 Tez. 390, district court
could mandamus board of aldermen to give seal to mayor; Morri0
V. State, 62 Tez. 734, quo warranto proceedings, on relation of pri-
vate persons, are valid if injury to public gives court jurisdiction;
State V. De Gross, 72 Tez. 245, 11 S. W. 1029, district court has
no jurisdiction of quo warranto against alderman where amount
is less than ^ve hundred dollars; Buckler v. Turbeville, 17 Tez.
Civ. 121, 43 S. W. 810, courts have no jurisdiction of contested elec-
tion proceeding as not a civil case; Hussey v. Heim, 17 Tez. Civ.
154, 42 S. W. 860, action brought by relator to recover office of
city marshal is a civil proceeding. See note, 3 L. B. A. 512.
Distinguished in Bobinson v. Wingate, 36 Tez. Civ. 69, 80 S. W.
1069, refusing to enjoin commissioners' court from canvassing result
of local option election.
Officer of the Army on Betired List holds a lucrative office under
authority of the United States, and as such cannot hold municipal
office.
Approved in Foltz v. Kerlin, 105 Ind. 224, 4 N. E. 440, holding
postmaster cannot be elected town trustee; Bishop v. State, 149
Ind. 232, 63 Am. St. Bep. 286, 48 N. E. 1041, holding town trustee
could not be postmaster; Oliver v. Jersey City, 63 N. J. L. 102, 42
Atl. 784, holding pontion of colonel of army is an office under stat-
ute. See notes, 72 Am. Dec. 189; 83 Am. Dec. 375; 12 L. B. A.
125.
Disapproved in Beed v. Schon, 2 Cal. Ap. 58, 83 Pac. 79, retired
army officer eligible as mayor of city.
Distinguished in People v. Duane, 121 N. Y. 376, 24 N. E. 848,
holding retired officer of army occupies no lucrative office.
63 Tez. 401-408, POTTEB ▼. WHEAT.
Where Parties are Mistaken, defendants are entitled to have their
defense submitted to jury.
Approved in Keating etc. Machine Co. v. Erie City Iron Works
(Tez. Civ.), 63 S. W. 548, error to charge jury to allow plaintiff's
account where defendant is allowed credit; Ellis v. Bosenberg (Tex.
Civ.), 29 S. W. 520, error not to charge upon an issue raised by
either party, though the weight of evidence is against it.
In Action by Administrator defendant disqualified from testifying
only as to transactions with or statements by intestate.
Approved in Davis v. Beall, 21 Tez. Civ. 186, 50 S. W. 1088, death
of guardian by whom judgment recovered for ward's benefit does
not render defendant incompetent to testify to conversation with
guardian after judgment, in action by defendant to enjoin ezecu-
tion.
Miscellaneous. — Cited in Parker v. Stroud, 39 Tez. Civ. 450, 87 S.
W. 735, upholding verdict for fized sum for each bale of hay mowed
and total amount, without stating number of bales.
63 Tez. 408-412, BTTNTON ▼. CABDWELK
Statute of Limitation Does not Bun in favor of plaintifif holding
under junior title where his improvements are not on laud in con-
flict
53 Tex. 413-436 NOTES ON TEXAS BEPORTS. 970
Approved in Parker v. Baines, 65 Tex. 612, error to charge title
runs to junior title to land not occupied; Porter v. Miller, 76 Tex.
596, 13 S. W. 556, defense of limitation not extended to land be-
yond possession; Turner v. Moore, 81 Tex. 209, 16 S. W. 930, ap-
plying rule where conflict does not arise from overlapping lands.
Where Qrant Issaed for Two Surveys for league of land, each
located and surveyed at same time and which call for common
marked corner and common divisional lines, they are not affected by
fact that by observing line excess of one thousand acres is contained
in one survey.
See note, 129 Am. St. Bep. 1012.
63 Tez. 41S-423, JOHNSON T. WILCOX.
Administrator is not Responsible for rents of property taken from
his possession under order of court.
Approved in Cameron v. Morris, 83 Tex. 19, 18 S. W. 424, admin-
istrator is protected in contest with heirs where he paid money on
order of court.
53 Tex. 423-426, B0GEB8 ▼. McI.ABEN.
Subsequent Allegation in Petition referring to deed made by ven-
dor to vendee will cure defects in description arising from recitals
in note also set out in petition.
Approved in Bowles v. Beal, 60 Tex. 324, description referring to
sheriff's deed sufficient.
63 Tez. 427-432, STATE T. NOBBELK
Judgment on Forfeited Bail Bonds and recognizance partake of
criminal character, though quasi civil in nature.
Approved in Hart v. State, 13 Tex. Ap. 557, holding appeal from
judgment of forfeited bail bond is in character of criminal ease;
Scott V. State, 6 Tex. Civ. 345, 25 S. W. 337, court of appeals has
jurisdiction of appeal from judgment disbarring attorney, being in
nature of criminal proceeding.
Under Article 1112 of Bevised Oode of Criminal Procedure, clerk
of district court is not entitled to the fees mentioned therein as com-
missions for collection of judgment rendered in civil suit on default
of collector's bond.
Approved in State v. Hart, 96 Tex. 104, 105, 70 S. W. 948; clerk
of court not entitled to percentage of penalty recovered by state in
civil action; Spencer v. Galveston Co., 56 Tex. 393, holding dis-
trict attorney was not to collect moneys when he gave no bond;
State V. Moore, 57 Tex. 318, applying rule to moneys collected by
county attorney.
Miscellaneous. — Austin v. Johns, 62 Tex. 183, cited generally while
construing city ordinance to allow city attorney commission on all
sums collected by him in addition to his regular compensation.
53 Tex. 432-436, OBEEN ▼. GBISSON.
Failure of Wife to Verify Inventory of community property can-
not be attacked collaterally to set aside sale.
Approved in Busby v. Davis, 57 Tex. 325, holding inventory of
widow of community property invalid where no order of court ap-
pears; Withrow V. Adams, 4 Tex. Civ. 445, 23 S. W. 439, failure
to list community property does not deprive wife of it.
971 NOTES ON TEXAS REPORTS. 53 Tex. 436-473
Proceedings Taken by Survivor in sabstantial compliance with
etatute will be upheld in subsequent proceeding.
Approved in Gulp v. Jones (Tex. Civ.), 24 S. W. 1124, following
rule; Richardson v, Overleese, 17 Tex. Civ. 381, 44 S. W. 310, hold-
ing error to approve new bond from husband after giving first;
Townsend v. Willis, 78 Fed. 854, holding bond of husband cannot
be attacked in collateral proceeding.
53 Tex. 436-440, BOOTH V. PICKETT.
Snfflciency of Pleadings should be settled by demurrer, and not by
objection to testimony.
Approved in Avery v. Mansur etc. Imp. Co. (Tex. Civ.), 37 8. W.
467, following rule; Tillman v. Fletcher, 78 Tex. 676, 15 S. W. 162,
no error to admit evidence in support of defective plea; Lewis v.
Taylor (Tex. Civ.), 24 S. W. 93, and International etc. R. Co. v.
Harris (Tex. Civ.), 65 S. W. 886, a pleading good against demurrer
will be allowed to stand, and evidence is admissible to support it;
Ashcroft V. Stephens, 16 Tex. Civ. 345, 40 S. W. 1038, error for judge
to charge exclusion of defendant's unverified plea.
53 Tex. 440-461, BBYAK v. 8HIBUSY.
Patent Tumilng Lawfully from proper ofiSce cannot be held void by
third parties having no equities prior to issuance.
Approved in Yarbrough v. De Martin, 28 Tex. Civ. 279, 67 S. W.
179, mere trespasser not entitled to have calls of patent reformed;
Decourt v. Sproul, 66 Tex. 371, 1 S. W. 338, holding patent issued to
wife while husband was living valid; McLeary v. Dawson, 87 Tex.
535, 29 S. W. 1046, holding titles issued to plaintiff cannot be at-
tacked by third party; Roach v. Fletcher, 11 Tex. Civ. 227, 32 S.
W. 586, holding patent issued on older location valid as to third
party; New York etc. Land Co. v. Gardner, 11 Tex. Civ. 408, 32 S. W.
788, holding defendant could not attack plaintiff's patent on ground
of fraud; Owen v. Presidio Mining Co., 61 Fed. 12, authority in the
oflScer making a colonial grant is presumed where the documentary
evidence of the grant comes from proper archives, or where its genu-
ineness is unquestioned.
5S Tex. 461-463, FITZGERALD v. EVANS.
Judgment Falling to Show Facts determined and action of court
thereon is not a final judgment.
Approved in Carswell v. Crowther, 4 Tex. Ap. Civ. 217, 16 S. W.
172, dismissing appeal where not final judgment; McAnally v. Hay-
nie, 17 Tex. Civ. 525, 42 S. W. 1051, holding decree not final which
is not complete; Railroad Commission v. Weld (Tex. Civ.), 66 S. W.
127, judgment merely finding regulation of freight rates by commis-
sion unjust, not final judgment; Corley v. Corley, 53 W. Va. 146, 44
S. £. 134, order that defendant merely recover costs not final judg-
ment. See notes, 55 Am. Dec. 784; 60 Am. Dec. 436.
63 Tez. 463-473, HENDRICKS v. WILSON.
Statute Passed After Location and issuance of patent to appel-
lees does not affect their rights.
Approved in Bradshaw v. Smith, 53 Tex. 478, invalidity of patent
regularly issued was not affected by statute; Parker v. Walker, 15
Tex. Civ. 372, 39 S. W. 612, holding headright certificate, when
located, became real property.
53 Tex. 474-518 NOTES ON TEXAS EBPOBTa 972
■
53 Tez. 474-479, BBABSHAW T. SMITH.
Certificate Merged into Patent and regularly iasned by competent
tribunal is not subject to collateral attack.
ApproTed in Burkett y. Scabborough, 59 Tez. 408, holding issu-
ance of patent to heirs is concluadve that they were heirs entitled
to it.
53 Tez. 479-484, McGOWEN v. ZIMPELMAN.
When the Beqolsites of tlie Statute relative to probate proceed-
ings are complied with, all parties interested must take notice at
their peril, as proceedings are binding till set aside.
Approved in Tiboldi v. Palms, 34 Tex. Civ. 321, 78 S. W. 728,
failure of administrator to publish notice of appointment can only
make him liable in damages to creditor; Hirshfield v. Brown (Tex.
Civ.), 30 S. W. 963, all persons interested in an estate must take
notice of all proceedings after an administrator ia appointed. See
note, 21 L. B. A. 683.
53 Tez. 484-488, PATTEBSON T. BOOEBS.
Assignment of Errors in Name of Both Defendants, where one de-
fendant is not a party to writ, will not be considered as to him.
Approved in Anderson ▼. Silliman, 92 Tex. 567, 50 S. W. 579,
holding one coappellee cannot assign errors against another.
One not a Party to a Wilt of Error cannot assign errors.
Approved in Gillespie v. Crawford (Tex. Civ.), 42 S. W. 625, fol-
lowing rule.
Authority of Attorney is presumed from recital in decree that party
appeared by attorney.
See note, 21 L. B. A. 848.
63 Tez. 496-^09, BOBINSON ▼. DOSS.
Survey Calling for Natural Objects must yield to eourse and dis-
tance in order to carry out intention of survey relative to public
maps.
Approved in Sloan v. King, 33 Tex. Civ. 543, 77 S. W. 51, reaf-
firming rule; Sanborn v. Gunter, 84 Tex. 285, 17 8. W. 121, ap-
plying rule where subsequent survey made was not actual; Sanborn
V. Gunter, 84 Tex. 297, 20 S. W. 78, holding, in survey made in
office, all inferior calls yield to natural object; Hill v. Smith, 6
Tex. Civ. 322, 25 S. W. 1083, holding calls of surveyor should be
followed in best way to locate grant. See note, 129 Am. St. £ep.
994.
Intention of Surveyor in Making Gall in office survey is to be
ascertained by deductions from report compared to natural objects.
Approved in Blackwell v. Coleman Co., 94 Tex. 220, 59 S. W. 531,
holding surveyor cannot testify to his intention in aiding call.
53 Tez. 610-618, O. H. ETC. B. B. T. McDONAU).
Proceeding in Equity and not Garnishment proceedings is appro-
priate remedy to obtain property encumbered by trust estate.
Approved in Galveston etc. B. B. v. Butler, 56 Tex. 509, apply-
ing rule to garnishment against assignee of old company; G. H.
etc. B. B. T. Hume, 59 Tex. 47, applying rule to garnishment of
third party indebted to judgment debtor; Kountze v. Cargill (Tex.
Civ.), 22 S. W. 229, a judgment creditor may maintain a bill of dis-
973 INOTES ON TEXAS REPOETS. 53 Tex. 518-549
eovery against a judgment debtor when his execution is returned
unsatisfied; Schwartzberg v. Friedman, 12 Tex. Civ. 343, 34 8. W.
337, discharging garnishee where he received goods by no fraudu-
lent transfer; Arlington State Bk. v. Paulsen, 57 Neb. 735, 78 N.
W. 309, applying rule to lands attached for debts of heirs. See notes,
46 Am. Dec. 238; 66 Am. St. Bep. 272; 59 L. B. A. 384.
Distinguished in White etc. Machine Co. v. Atkeson, 75 Tex. 334,
12 S. W. 813, dissolving injunction restraining debtor from collect-
ing notes due him.
63 Tez. 518-522, HOUSTON ETC. R. B. ▼. PBESIDIO COUNTY.
No Error to Refuse to Enjoin Assessor where petitioner failed to
pursue remedy given by law.
Approved in International etc. B. B. v. Smith Co., 54 Tex. 12,
holding statute creating board of equalization valid. See notes, 69
Am. Dec. 204; 16 L. B. A. (n. s.) 808; 22 L. B. A. 702.
Distinguished in Bardrick v. Dillon, 7 Okl. 546, 54 Pap. 788, where
property assessed at more than full cash value, court will restrain
collection of excess.
63 Tez. 623-527, LOCKWOOD T. BB0WN80N.
Error to Give Judgment for Plaintiff, where he shows no right of
action on contract sued on.
Approved in International Bridge etc. Co. v. McLane,' 8 Tex. Civ.
668, 28 S. W. 456, erroneous to render judgment for respondent where
record shows appellant has rights.
53 Tez. 527-539, OASSADAY T. ANDEBSON.
Creditor can Sue upon Indebtedness and in same action seek to set
aside fraudulent conveyance.
Approved in Shirley v. Waco Tap. B. (Tex. Sup.), 10 S. W. 552,
following rule; Hillebrand v. McMahan, 59 Tex. 455, holding creditor
may attach property and then sell under execution. See note, 23 L.
B. A. (n. s.) 29.
Creditor cannot Acquire an Independent Uen, in suit upon indebt-
edness; remedy is by suit in equity court.
Approved in Wachsmuth v. Sims (Tex. Civ.), 32 S. W. 823, follow-
ing rule; Gaines v. National Exchange Bk., 64 Tex. 21, applying
rule where judgment creditor instituted suit to remove cloud; Arbuckle
V. Werner, 77 Tex. 45, 13 S. W. 963, plaintiff could maintain suit to
devest title of grantee of judgment debtor for fraud; Shirley v.
Waco Tap. By., 78 Tex. 148, 10 S. W. 552, simple contract creditor
can set aside conveyance on ground of fraud; Dittman v. Weiss, 87
Tex. 622, 30 S. W. 864, creditors having no lien may set aside con-
veyance for fraud; Hull v. Naumberg, 1 Tex. Civ. 135, 2ih S. W.
1126, judgment creditor may maintain action to set aside convey-
ance of homestead.
63 Tez. 640^-549, CABTEB v. BOLAND.
Purchaser at Ezecution Sale of Partner's Interest in firm dissolves
the partnership and makes purchaser tenant in common with remain-
ing partner.
Approved in Kellar v. Self, 5 Tez. Civ. 396. 24 S. W. 579, sale by
partner dissolves partnership.
53 Tex. 549-559 NOTES ON TEXAS REPORTS. 974
Judgment Oreditor can Claim reasonable compensation for use of
property where judgment debtor has the election of returning prop-
erty.
Approved in Waller ▼. Hail (Tex. Civ.), 46 S. W. 82, a person de-
prived of the use of his property may recover the value of the use
instead of interest; Moore v. King, 4 Tex. Civ. 401, 23 S. W. 486, in
estimating damages for wrongful seizure jury should consider value
of use; Endel v. Norris, 15 Tex. Civ. 142, 39 S. W. 610, modifying
judgment allowing damages for use of mule converted. See notes,
58 Am. Dec. 128; 69 Am. St. Rep. 416.
Attorney for Plainly cannot Compromise moneyed judgment, and
subsequent acceptance of specific property by plaintiff does not ratify
compromise.
Approved in Anderson v. Oldham, 82 Tex. 231, 18 S. W. 558, au-
thority of attorney to accept moneyed settlement should be pleaded;
Cook V. Greenberg (Tex. Civ.), 34 S. W. 689, attorney has no author-
ity to compromise his client's demands without his authority.
Where AppeUee Objects to (General assignment of error, court is
not required to pass upon them.
Approved in St. Louis etc. R. Co. v. Dobie (Tex. Civ.), 75 S. W.
341, assignment that "trial court erred in overruling defendant's
motion for a new trial," too general; John v. Battle, 58 Tex. 599,
sustaining appellee's objection to appellant's general assignment of
error; Handel v. Kramer, 1 Tex. Ap. Civ. 473, assignment of errors
must be specific.
Error to Admit Evidence Tending to Prove other issues than those
pleaded; remedy is by demurrer.
Approved in Booth v. Pickett, 53 Tex. 439, sufficiency of plead-
ings should be settled by demurrer.
Pnrcliaeer at Ezecntion Sale of one partner's interest may vue to
recover joint possession and partition or for damages for conver-
sion.
See note, 46 L. R. A. 48.
53 Tez. 549-567, UDDEIiL T. ORAIK.
No Error for Ooort to Oive Judgment to cross-complainant on note
for antecedent debt.
Approved in Marx v. Dreyfus (Tex. Civ.), 26 S. W. 232, and
Kauffman v. Robey, 60 Tex. 310, 48 Am. Rep. 265, note payable
to bearer assigned as collateral security for debt is valid; Luter v.
Roberts (Tex. Civ.), 39 S. W. 1002, assignee of a promissory note
as collateral security for a debt may maintain an action on it in
his own name; Alexander v. Lebanon Bk., 19 Tex. Civ. 624, 47 S.
W. 842, assignment of negotiable notes to bank as security for pre-
existing debt valid.
53 Tez. 557-559, KNOWIiES ▼. TOBBITT.
Description in Slieriff's Deed setting out county, number of acres,
and designation of particular claim is sufficient.
Approved in Buckner v. Vandeave, 34 Tex. Civ. 313, 78 S. W. 542,
and Thompson v. Jones (Tex. Sup.), 12 S. W. 79, both following
rule; Echols v. Jacobs Mercantile Co., 38 Tex. Civ. 68, 84 S. W. 1083,
name of occupant, with premises by which bounded, sufficient; Bowles
V. Beal, 60 Tex. 324, deed referring to sheriff's deed already in evi-
dence is valid; Norton v. Conner (Tex. Sup.), 14 S. W. 195, a de-
975 NOTES ON TEXAS REPORTS. 53 Tex. 559-569
Bcrlption in a deed referring to a specific survey and the field-notes
is good; Gox v. Hart, 145 U. S. 388, 12 Sup. Ct. Rep. 967, 36 L. 746,
marshal's deed describing land by reference to certain land district
is valid.
A Deed to Land is Void for Want of Certainty in the description
which is apparent on the face of the instrument.
Approved in Pierson v. Sanger (Tex. Civ.), 51 S. W. 870, a pat-
ent ambiguity in the description in a deed cannot be aided by ex-
traneous evidence. Cited in note, 76 Am. Dec. 57.
53 Tex. 559-^61, BfflNEB r. PABI8 EXOHANQE BANK.
New Note Given for Principal and Interest i0 not a usurious con-
tract.
Approved in Martin v. Texas Land Mortgage Bank, 5 Tex. Civ.
171, 23 8. W. 1035, interest at twelve per cent after maturity is
not usury. See note, 55 Am. Dec. 397.
Oompound Interest is not usurious.
Approved in Yaws v. Jones (Tex. Sup.), 19 8. W. 446, following
rule; Whittaker v. Wallace, 2 Tex. Ap. Civ. 497, interest on judg-
ment for principal and interest valid; Brown v. Crow (Tex. Civ.),
29 S. W. 653, 654, note providing for compounding of interest thereon
is not usurious if by such compounding the interest does not exceed
the legal rate.
New Note Oiven for Principal and Interest of old and containing
stipulation to pay ten per cent attorney's fees in event of suit ia
legal.
Approved in Hamilton etc. Mill Co. v. Sinker, 74 Tex. 52, 11 S.
W. 1057, stipulation to pay attorney's fees is a contingent liabil-
ity; King V. Robinson, 2 Tex. Ap. Civ. 494, sustaining attachment
for principal of note and attorney's fees; Waters v. Walker, 4 Tex.
Ap. Civ. 464, 17 S. W. 1086, stipulation to pay attorney's fees must
be considered in giving jurisdiction; Sturges Nat. Bk. v. Smith, 9
Tex. Civ. 542, 30 S. W. 678, maker of note liable for stipulated at-
torney fees though plaintiff paid none; Bowie v. Hall, 69 Md. 436,
9 Am. St. Rep. 435, 16 Atl. 65, 1 L. R. A. 546, reversing judgment
refusing stipulated attorney fees; Peyser v. Cole, 11 Or. 42, 43, 45, 50
Am. Rep. 453, 455, 4 Pac. 521, 522, stipulation to pay attorney fees
not void per se; Oppenheimer v. Bank, 97 Tenn. 29, 56 Am. St. Rep.
784, 36 S. W. 708, 33 L. R. A. 767, negotiable note not rendered un-
negotiable by stipulation to pay attorney fees; Adams v. Adding-
ton, 4 Woods, 390, 392, 16 Fed. 90, 92, note containing stipulation to
pay attorney fees is negotiable. See notes, 37 Am. Rep. 677; 46
Am. St. Rep. 193; 55 Am. Dec. 395; 55 Am. St. Rep. 438, 440, 441,
442.
Distinguished in Re Roche, 101 Fed. 959, owner of bond not en-
titled to attorney's fees for reducing security to money.
53 Tex. 562-^68, KAT7FMAN ▼. ALEXANDER.
Debt Arising from Oontract to Handle certain line of goods, pro-
ceeds thereof not becoming property of creditor, is not a fiduciary
obligation, and hence is not discharged by bankruptcy.
Approved in Svanoe v. Jurgens, 144 Dl. 514, 33 N. E. 957, debt
due by ordinary agent to principal is not a preferred claim; Will-
iams V. Drummond Tobacco Co., 17 Tex. Civ. 640, 44 S. W. 188,
arguendo, while construing contract regarding the handling of tobacco
53 Tex. 569-600 NOTES ON TEXAS BEPOETS. 976
as a sale and not agency contract; In re Gaylord, 113 Fed. 135, rela-
tion between atock broker and customer buying stock on margin not
fiduciary. See notes, 77 Am. Dec. 386; 33 Am. Bep. 237; 39 Am. Bep.
725, 726.
53 Tex. 56^-581, BASSETT ▼. PBOETZEL.
Subseqaent Ezecatlons must be Taken Out Yearly to keep judg-
ment alive.
Approved in Johnson v. Weatherford, 31 Tex. Civ. 182, 71 S. W.
790, insolvency of debtor does not excuse failure to sue out yearly
executions; Williams v. Davis, 56 Tex. 255, no lien where execu-
tion had not issued for four years; Deutseh v. AUen, 57 Tex. 90,
no lien where execution was not issued till after one year; Hart v.
McDade, 61 Tex. 211, plaintiff can recover where defendant relies
on judgment lien never executed; Wren v. Peel, 64 Tex. 380, lien
exists where proper writs were taken to keep alive judgment; Gruner
v. Westin, 66 Tex. 217, 18 S. W. 514, no lien exists where three years
intervene between executions; Anthony v. Taylor, 68 Tex. 405, 4 S.
W. 532, lien lost by subsequent failure to issue execution yearly;
HiBirvey v. Edens, 69 Tex. 433, 6 S. W. 313, sheriff's sale invalid
where lien was lost by failure to issue executions yearly; Clements
V. Ewing, 71 Tex. 373, 9 S. W. 313, lien lost by failure to use it
within year after recording; Cooke v. Avery, 147 U. 8. 388, 13 Sup.
Ct. Bep. '345, 37 L. 213, plaintiff's title good when purchased at sale
under execution kept alive.
53 Tez. 581-692, 37 Am. Bep. 760, EICES ▼. COPELAND.
A Clause in a Tnist Directing the Trustee to sell the property and
pay the creditors pro rata is not inconsistent with fair dealing and
the just rights of the creditors as to constitute fraud per se.
Approved in Johnston v. Luling Mfg. Co. (Tex. Civ.), 24 S. W.
999, possession of trust property by the maker of the trust till the
trustee could execute the trust does not vitiate the trust.
A Valid Assignment la not Bendered Invalid by an improper de-
lay by the assignee in carrying out the terms of the assignment.
Approved in P. J. Willis & Bro. v. Murphy (Tex. Civ.), 28 S. W.
363, following rule; Marsalis v. Oglesby, 1 Tex. Ap. Civ. 103, failure
of assignee to execute bond does not render assignment invalid. See
note, 75 Am. Dec. 819.
53 Tex. 692-600, GILLUM ▼. OOLUEB.
Husband can Encumber Homestead with new lien in substitution
for preceding encumbrance.
Approved in McKinney v. Matthews (Tex. Sup.), 6 S. W. 798,
following rule; Bayless v. Standard Savings etc. Assn., 39 Tex. Civ.
357, 87 S. W. 874, lien may be created to secure purchase money or pay
for improvements; Joiner v. Perkins, 59 Tex. 303, lien is not waived
by fact that original note was executed to third person; Wheatley
V. Griffin, 60 Tex. 212, wife cannot set aside sale of homestead made
to pay existing debt; Morris v. Geisecke, 60 Tex. 635, husband alone
cannot convey homestead except for existing debt; McCarty v. Brack-
enridge, 1 Tex. Civ. 180, 20 S. W. 1001, husband can encumber
homestead in acquisition of it; Baker v. Collins, 4 Tex. Civ. 524, 23
S. W. 495, homestead is subject to renewed vendor's lien for pur-
chase money by husband; Galveston etc. By. v. Fontaine, 23 Tex.
977 NOTES ON TEXAS REPORTS. 53 Tex. 605-625
CiT. 523, 57 S. W. 874, applying rule, allowing foreclosure of mort-
gage given for contractor's debt. See note, 95 Am. St. Rep. 932.
63 Tex. 605-613, EDWABDS ▼. DI8MUKE&
Although Wife Acknowledged Deed Privily, she can recover from
grantee accepting it with notice of its unauthorized delivery.
Approved in Cole v. Bammel, 62 Tex. 115, wife can recover prop-
erty conveyed for fraudulent consideration less than she author-
ized; Miller v. Yturria, 69 Tex. 552, 7 S. W. 207, no error to ex-
clude testimony of wife not tending to prove notice of grantee. See
note, 53 Am. St. Rep. 539.
Wife can Sue Alone Where Hnsband refused to join her, and dis-
missal as to him does not operate as a continuance.
Approved in John v. Battle, 58 Tex. 596, wife alone could bring
action of trespass to try title where husband refused; Lyttle v.
Harris, 2 Posey U. C. 24, 27, wife joined by husband may sue for
homestead rights.
Wife may Testify u to Frandnlent Acts of her husband in support
of her rights against third party.
Approved in Eddy v. Bosley, 34 Tex. Civ. 122, 78 S. W. 568, state-
ment of husband to wife that heirs of former wife were part own-
ers of property held in his name, not privileged as confidential com-
munication.
63 Tex. 613-616, BATTE T. OHANDI.EB.
Where Appellant's Attorney Befosed to point out property pursuant
to sheriff's request, sheriff will be exonerated for failure to levy.
See notes, 95 Am. Dec. 434, 435, 441.
Where Exception is Overrnled on ground that testimony is admis-
sible for special purpose, record must show that it was limited to
that purpose.
Approved in Gulf etc. Ry. Co. t. Holt, 30 Tex. Civ. 333, 70 S. W.
593, reaffirming rule.
53 Tez. 616-618, tTBQXJHABT T. WOMAOK.
Wife Intervening and Admitting Execution of Deed, and pleading
matters in avoidance, does not raise issue as to sufficiency of her
certificate to the deed.
Approved in Cordray v. Galveston (Tex. Civ.), 26 S. W. 246, a
married woman can compromise a suit; Morris v. Turner, 5 Tex.
Civ. 712, 24 S. W. 960, married woman bound by judgment of com-
petent courts; Fermier v. Brannan, 21 Tex. Civ. 548, 53 S. W. 702,
holding court cannot decide act of married woman is not most con-,
ducive to her interest. See notes, 73 Am. Dec. 213; 76 Am. Dec
94.
53 Tex. 619-626, TEXAS LAND CO. ▼. TUEMAN.
In Proceedings in Forcihle Entry and Detainer, where injunction
is denied, it is error to dismiss petition; it should be continued.
See notes, 60 Am. Dec. 222, 223; 65 Am. Dec. 84; 77 Am. Dec.
555.
Distinguished in Love ▼. Powell, 67 Tex. 17, 18, 2 S. W. 457, on
dissolving temporary injunction plaintiff is entitled to trial on merits
without continuance.
In Action of Forcible Entry and Detainer right of possession is only
issue to be tried.
2 Tex. Notesr— 62
53 Tex. 626-631 NOTES ON TEXAS REPOETS. 078
Distin^ished in Beauehamp y. BnnnelSy 35 Tex. Civ. 213, 79 S. W.
1106, court must determine whether lease has terminated.
53 T«z. 626-628, GANNON ▼. BOXTTWELL.
Deed Signed 1>7 Wife Alone will not pass her separate estate.
Approved in Warren v. Jones, 69 Tex. 464, 6 S. W. 776, wife can
convey property by attorney in fact duly executed with husband;
Jones V. Bobbins, 74 Tex. 619, 12 S. W. 826, deed executed under
power of attorney not duly executed is void; Ford v. Ballard, 1
Tex. Civ. 379, 21 S. W. 147, deeds properly excluded where wife
deeded separate property without husband's joinder; Owen v. New
York etc. Land Co., 11 Tex. Civ. 287, 32 S. W. 190, a deed executed
by wife without joinder of husband not admissible. See note, 84 Am.
Dec. 598.
Power of Attorney Authorizing Husband to convey is not sufficient
to convey wife's separate estate.
Approved in Scales ▼. Johnson (Tex. Civ.), 41 S. W. 829, and
Halbert v. Hendrix (Tex. Civ.), 26 S. W. 912, both following rule;
Kellett V. Trice, 95 Tex. 168, 66 S. W. 53, wife's conveyance, joined
by husband, of her separate property to trustee to convert it into
community property, invalid; Nolan v. Moore (Tex. Civ.), 70 S. W,
785, wife cannot give valid power of attorney to sell her separate
realty, unless husband joins therein; Peak v. Brinson, 71 Tex. 316,
11 S. W. 270, no error to charge deed by husband of wife's property
under power of attorney void; Etheridge v. Price, 73 Tex. 602, 11 S.
W. 1040, husband is not agent of wife; Cardwell v. Sogers, 76 Tex.
42, 12 S. W. 1008, no error to charge husband could not convey un-
der power of attorney; Barnes v. Mc Arthur, 4 Tex. Civ. 73, 22 S.
W. 770, no recovery where appellant obtained title by deed from
husband to wife's property; Chaison v. Beauehamp, 12 Tex. Civ. Ill,
34 S. W. 304, plaintiffs cannot recover from wife on deed executed
by husband; Engleman v. Deal, 14 Tex. Civ. 3, 37 S. W. 653, agree-
ment by wife not to claim interest in community property void;
Mexia v. Oliver, 148 U. 8. 672, 13 Sup. Ct. Bep. 758, 37 L. 604, ap-
plying rule to conveyance by husband under power of attorney from
wife.
Distinguished on the facts in Brown v. Hearon, 66 Tex. 64, 17
6. W. 396, declining to reconsider principal case, which involved
same power of attorney alleged to be involved in case at bar; Arnall
V. Newcom, 29 Tex. Civ. 523, 69 S. W. 94, deed admissible in aid of
description in subsequent valid deed.
. Qualified in Presnall v. McLeary (Tex. Civ.), 50 S. W. 1067, hold-
ing husband can empower his wife to transfer a note.
63 Tez. 628-631, BABNES T. WHITE.
Homestead Is Designated by Occupancy.
Approved in Ellerman v. Wurz (Tex. Sup.), 14 S. W. 333, follow-
ing rule; Swope v. Stanzenberger, 59 Tex. 390, contractor has lien
for building before occupancy by contractee; Drucker t. Bosen-
stein, 19 Fla. 196, error to dismiss bill for lien on unimproved
property; Western Mortgage etc. Co. v. Burford, 71 Fed. 79, de-
fendant cannot claim mortgaged property exempt as a homestead
w)iile living on another. See note, 70 Am. Dec. 347.
Present Bona Fide Intention to make property a homestead, together
with act of preparation, characterizes the property as such.
979 NOTES ON TEXAS BEPOBT& 53 Tex. 632-^43
Approved in Bnnton y. Palm (Tex. Snp.)y 9 8. W. 184, following
rule; Gardner y. Douglass, 04 Tex. 78, property purchased for home-
stead is exempt before oecnpaney; Archibald t. JacobSj 69 Tex.
252, 5 S. W. 179, property used as homestead cannot be abandoned
for another when actually used as such; Dobkins v. Kuykendall,
81 Tex. 183, 16 S. W. 744, declarations and preparations of de-
fendant are sufficient to make land a homestead; Cameron y. Geb-
hard, 85 Tex. 614, 34 Am. St. Bep. 834, 22 S. W. 1034, no lien where
actions of defendant show intention to make property homestead;
Collier v. Betterton, 8 Tex. Civ. 484, 29 S. W. 492, secret intention
not sufficient to make property a homestead; Stark v. Ingram, 2
Posey U. C. 636, general intention to make homestead must be con-
nected with acts of preparation; Bonner y. Minnier, 13 Mont. 282,
34 Pae. 33, materialman has no lien where defendants were actually
liYing on land. See notes, 70 Am. Dec. 347, 348; 70 Am. Dec. 295.
Distinguished in Johnson y. Burton, 39 Tex. Civ. 250, 87 S. W. 181,
mere indefinite intention to occupy realty as homestead, unaccom-
panied by acts of preparation, will not exempt it; Wolf v. Butler, 8
Tex. CiY. 470, 28 S. W. 51, materialman will have lien unless notified
by actions of purchaser that it is to be homestead.
"Wliere Plaintiff liad No Mechanic's Lien on the property, district
court had no jurisdiction of amounts under five hundred dollars.
Approved in Strang v. Pray (Tex. Civ.), 34 S. W. 666, following
rule; Carter v. Hubbard, 79 Tex. 359, 360, 15 S. W. 393, court had
no jurisdiction after quieting title to give judgment against defend-
ant; Cameron v. Marshall, 65 Tex. 12, district court cannot give
judgment for one hundred and twenty-seven, dollars and eighty cents
after refusing foreclosure of lien.
Overruled in Ablowich v. Greenville Nat. Bank, 95 Tex. 433, 67
S. W. 881, district court may give judgment for amount due, though
finding against existence of lien.
53 Tez. 632-634, MOSS ▼. BESBY.
Owner of Legal Title can BecoYer ftom Grantee under void power
of attorney when not barred by limitation of adverse possession.
Approved in Higgins Oil & Fuel Co. v. Snow, 113 Fed. 436, where
complainant bases his right to relief in equity upon legal title, doc-
trine of laches does not apply; WoolHridge v. Hancock, 70 Tex. 21, 6
S. W. 821, heir's right to sue not barred by failure to do so; Edwards v.
Gill, 5 Tex. Civ. 207, 23 S. W. 744, strangers to title cannot plead
fftale demand against legal title; Karnes v. Butler (Tex. Civ.), 62 S.
W. 953, claimant under void tax deed cannot plead stale demand
against legal title.
Authority of Attorney to Oonvey must be specific.
Approved in Frost v. Erath Cattle Co., 81 Tex. 509, 26 Am. St.
Bep. 835, 17 S. W. 54, authority to discharge adverse claims must
be specific.
Miscellaneous.— Grant v. Hill (Tex. Civ.), 29 8. W. 251, (Tex. Civ.),
30 S. W. 957, holding doctrine of stale demand has no application to
a legal title.
53 Tez. 634r-64S, WOFFOBD T. UNGEB.
Creditor's Olaim is not Barred by defective proof.
Approved in Calloway v. Baldwin, 1 Tex. Ap. Civ. 313, failure to
file creditor's claim not a bar to limitation.
63 Tex. 634-643 . NOTES ON TEXAS EEPOBTa 980
AttemptB to OoUect Olalm by Agreement in state court, after de-
fective proof in bankrupt court, does not bring claim within statute
of limitation.
Approved in McKeen v. Sultenfuss, 61 Tex. 330, foreclosure ef
lien barred by statute where holder took no steps after bankrupt's
discharge.
Miscellaneous. — Wofford v. Unger, 55 Tex. 482, referring to former
appeal in stating history of the case.
NOTES
ONTHB
TEXAS REPOETS
CASES IN 54 TEXAS.
64 Tez. 1-16, INTERNATIONAL ETO. R. R. T. SBOTH COUNTY.
Title to Acts of the IieglBUtoxo must express subject matter, and
act mnst contain but one subject.
Approved in Floeck ▼. State, 34 Tex. Gr. 324,* 80 S. W. 798, and
Marsalls t. Creager, 2 Tex. Civ. 372, 21 S. W. 646, title to act must
state contents of act.
Party Seeking Equitable Relief by Injunction against alleged un-
authorized action by board of equalization must establish fact of
illegality.
Approved in Dwyer v. Hackworth, 57 Tex. 252, board of appraise-
ment haa no authority to change valuation; and see note, -64 Am.
St. Bep. 105.
Party cannot Resort to Oonrts for Relief because board of equali-
zation errs and affixes valuation deemed to be exceesive by party.
Approved in Texas etc. By. t. Harrison Co., 54 Tex. 123, Stone v.
Brown, 54 Tex. 343, and Mackin v. County Court, 38 W. Va. 342, 18
B. £. 633, all reaffirming rule; Oalveston Gas Co. v. Galveston Co.,
54 Tex. 293, decision of county court sitting as a board of equaliza-
tion is final; Danforth v. Livingston, 23 Mont. 563, 59 Pac. 917,
courts will not interfere with acts of officers unless fraud is per-
petrated. See note, 16 L. B. A* (n- ••) 808.
Distinguished in Boyer v. St. Louis etc. By. Co., 97 Tex. 110, 76
S. W. 442, where renditions of property for taxation put in evidence
as admissions, party may explain that valuations were made by
assessor.
. Act of Febmary 9, 1881, is Unconjititational, because it attempts
to legislate on a different subject and accomplish an object distinct
from that had in view in the act it attempted to amend.
Cited in Day Land etc. Co. v. State, 68 Tex. 643, 4 S. W. 872, as
being an instance where the court construed the meaning of the
words "object," "end," "purpose," and "subjeet" in deciding the
constitutionality of a statute.
64 Tez. 16-29, OOX ▼. MILLER.
In Absence of Evidence to Oontrary, property in possession of
husband will be presumed to be community property.
(981)
54 Tex. 30-45 NOTES ON TEXAS EEPORTS. 982
Reaffirmed in Albrecht v. Albrecht (Tex. Civ.), 35 S. W. 1077, Mc-
Celvey v. Cryer (Tex. Civ.), 37 S. W. 176, Thompson v. Hervey, 2
Tex. Ap. Civ. 455, Weir Plow Co. v. Carroll, 4 Tex. Ap. Civ. 265,
15 S. W. 123, and Swearingen v. Hendley, 1 Posey U. C. 647. See
notes, 86 Am. I>ec. 633, 636, 637, 638, 642; 126 Am. St. Rep. 103.
Husband and Wife cannot^ by Post-nuptial Agreement, be jointly
interested in a mercantile business, and cannot change property
rights to that of partners, nor community property to separate.
Approved in Green v. Ferguson, 62 Tex. 528, reaffirming rule; Ap-
plebaum v. Bates, 3 Tex. Ap. Civ. 206, Artman v. Ferguson, 72 Mich.
149, 16 Am. St. Rep. 574, 40 N. W. 908, 2 L. R. A. 343, Fuller v. Mc-
Henry, 83 Wis. 581, 53 N. W. 898, and Miller v. Marx, 65 Tex. 132,
all holding wife cannot enter into partnership with husband or any
person during coverture; Qroesbeck v. Groesbeck, 78 Tex. 669, 14
S. W. 793, husband and wife cannot change laws of descent by con-
tract. See notes, 34 Am. St. Rep. 340; 16 L. R. A. 527.
Distinguished in Kellett v. Trice, 95 Tex. 170, 66 S. W. 54, wife
joined by her husband cannot convey her separate property to trustee
to convert it into community property.
A Husband may Beimbune His Wife for advances, if he does so
bona fide, in preference to his other creditors.
Approved in Weir Plow Co. v. Carroll (Tex. Ap.), 15 8. W. 123, a
transfer made by the husband to secure the wife who knows that he
ig insolvent is invalid.
An Individual Creditor baa No Superiority of Olaim against in-
dividual assets over a partnership creditor.
Approved in Simpson v. Schulte, 21 Mo. Ap. 644, partnership
creditor, having first attached, has lien for full amount over private
creditor attaching subsequently.
A Fraudulent Deed, in Fact^ securing a valid debt, is nevertheless
80 tainted with fraud as to charge a grantee with notice of wrong-
ful intent.
Reaffirmed in First Nat. Bank v. Ridenour, 46 Kan. 722, 2S6 Am.
St. Rep. 173, 27 Pac. 155. See notes, 73 Am. Dec. 287; 32 L. R. A.
43, 65; 31 L. R. A. 644.
Distinguished in Kraus v. Haas, 6 Tex. Civ. 671, 25 S. W. 1028,
holding intention of mortgagor to defraud other creditors will not
render void mortgage taken in good faith to secure prior debt,
without knowledge of fraud intended.
A Grantee of a Voluntary Deed made with fraudulent intent will
be affected by the fraud if he claims any benefit under the deed.
Reaffirmed in Frost v. Mason, 17 Tex. Civ. 471, 44 8. W. 56.
Execution Sale to Wife of husband's property will not be sustained,
where for purpose of defrauding creditors.
See note, 90 Am. St. Rep. 521.
54 Tez. 30-45, BOGERS ▼. KBNNABB.
Action of Probate Court Haidng Jurisdiction over the subject mat-
ter, in granting letters of administration, cannot be collaterally
attacked.
Approved in Turner v. Rogers, 49 Ark. 57, 4 S. W. 196, suit will not
prevail in equity if probate court has jurisdiction.
Bounty Warrants Issued to Soldiers by the Republic of Texas for
service become assets in the hands of the administrator.
Approved in Barrett v. Spence, 28 Tex. Civ. 346, 67 S. W. 923,
bounty land certificate earned by military services community prop-
983 NOTES ON TEXAS REPOBTS. 54 Tex. 45-53
erty; Halsted v. Allen (Tex. Civ.), 73 S. W. 1069, certificate not mere
grataitj but based on consideration of military service; Lyne v. San-
ford, 82 Tex. 65, 27 Am. St. Bep. 858, 19 S. W. 849, and Todd v.
Masterson, 61 Tex. 626, both holding certificate under act of 1833
went to heir and was no part of decedent's estate; Pendleton v. Shaw,
18 Tex. Civ. 456, 44 S. W. 1010, Santana Live Stock etc. Co. v.
Pendleton, 81 Fed. 790, and State v. Zanco, 18 Tex. Civ. 128, 44 S.
W. 528, all holding certificate under act of 1850 consrtitutes asset of
estate; Dick v. Malone, 24 Tex. Civ. 101, 58 S. W. 170, recitation in
certificate is conclusive against heirs.
Where It is Ambiguoiu Whether an instrument is a deed or a will,
the issue should be submitted to the jurjr as a question of fact.
Beaffirmod in Hannig v. Hannig (Tex. Civ.), 24 S. W. 697.
Approved in De Bajligethy v. Johnwn, 23 Tex. Civ. 275, 56 S. W.
96, holding conveyance by husband to wife in consideration of five
dollars and love concluding, "This deed not to take effect till after
my death," was will.
Party Placing Particular CoDStmctlon on written instrument which
is ambiguous has burden to prove construction.
Approved in Capp v. Terry, 75 Tex. 400, 13 S. W. 56, reaffirming
rule; McHugh v. Gallagher, 1 Tex. Civ. 201, 20 S. W. 1116, evidence
of circumstance admissible to prove intent when instrument ambig-
uous.
During the Course of Administration a suit for the recovery of
property should be brought by the administrator.
Approved in Boggess v. Brownson, 59 Tex. 421, administrator may
sue without joining heir; Lee v. Turner, 71 Tex. 266, 9 S. W. 150,
heirs may sue when it is shown that it was for their protection.
District Court has Same Chancery Jurisdiction as courts of Eng-
land, not incompatible with federal and state laws, but cannot order
sale of land when administration has been begun in probate court.
Approved in Lynn v. Burnett, 34 Tex. Civ. 337, 79 S. W. 66, deed
of headright certificate by administrator not valid, where no order
of court shown; Love v. Keowne, 58 Tex. 197, probate jurisdiction of
district court similar to chancery laws of England; Allen v. Von
Bosenberg (Tex. Sup.), 16 S. W. 1098, 1099, creditors cannot devest
devisee of his interest in an estate by suit in district court against
executor of independent will. See notes, 56 Am. Dec. 48; 6U Am.
Dec. 230; 67 Am. Dec. 693.
54 Tex. 46-^3, FI.ANAOAN T. WOBfACE. .
In Action for Damages Vi Et Armis, evidence of payment of fines
imposed in criminal prosecution is admissible in evidence in mitiga-
tion of damages.
Approved in Shook v. Peters, 59 Tex. 396, conviction of assault
may be set up; and see notes, 50 Am. Dec. 774, 775; 38 Am. Bcp.
295; 28 Am. St. Bep. 882; 68 Am. St. Bep. 279; 11 .L. B. A. (n. s.)
670.
Exemplary Damages cannot be BecoTered in absence of evidence
of actual or compensatory damages.
Approved in Gulf etc. By. v. Levy, 59 Tex. 569, 46 Am. Bep. 283,
Hirshfield ▼. Fort Worth Nat. Bank, 83 Tex. 460, 29 Am. St. Bep.
668, 18 S. W. 746, 15 L. B. A. 639, Girard v. Moore, 86 Tex. 676, 26
S. W. 946, and Jackson v. Wells, 13 Tex. Civ. 277, 35 S. W. 529, all
reaffirming rule; Flanary v. Wood, 32 Tex. Civ. 251, 73 S. W. 1072,
where exemplary damages held disproportionate to actual damages.
64 Tex. 53-58 NOTES ON TEXAS BEPOETS. 9S4
An ABsignment of Error Alleging Error in overruling plaintiff*t
motion for a new trial for eleven reasons therein contained is too
general.
Approved in Scott v. Farmers* etc. Nat. Bank (Tex. Civ.), 66 S. W.
492, John v. Battle, 58 Tex. 599, and Texas etc. By. v. Kirk, 62 Tex.
233, both reaffirming mle; St. Louis etc. B. Co. v. Dobie (Tex. Civ.),
75 S. W. 341, assignment that "trial court erred in overruling de-
fendant's motion for a new trial," too general; Handel v. Kramer,
1 Tex. Ap. Civ. 473, assignment of error must be specific.
54 Tez. 58-68, PEVELEB T. PEVELEB.
It is not Error to Disregard Plea to jurisdiction after defendant
has appeared and requested continuance without asking judgment
on jurisdictional plea.
Approved in State v. Snyder, 66 Tex. 695, 18 S. W. 107, plea t<^
jurisdiction taken in time will prevail; Blum v. Strong, 71 Tex. 329.
applying principle to dilatory pleas; Chatham Mach. Co. v. Smith
(Tex. Civ.), 44 S. W. 593, continuance of a case without urging the
disposition of a plea of privilege operates as an abandonment of it;
Green v. Brown (Tex. Ap.), 15 S. W. 38, no error to strike eut pleas
of privilege at a subsequent term of court; Maxwell v. First Nat.
Bank (Tex. Civ.), 24 S. W. 848, instructing the jury to disregard
a plea in abatement which was not filed at the same term of court;
Creswell Banche etc. Co.- v. Wfeildstein (Tex. Civ.), 28 S. W. 262,
plea of privilege is waived if not disposed of at first term of court
after it is filed; Turman v. Bobertson, 3 Tex. Ap. Civ. 263, plea of
misjoinder must be disposed of before answer; Qreen v. Brown, 4
Tex. Ap. Civ. 229, 15 S. W. 38, plea of privilege mu9t be presented
at term filed to be available; Weir Plow Co. v. Armentrout, 9 Tex.
Civ. 123, 28 S. W. 1048, applying principle to plea of reconvention.
Qualified in Huffman v. Hardeman (Tex. Sup.), 1 S. W. 576, hold-
ing dilatory pleas need not be called to the attention of the court at
the first term after it is filed.
Defendants liave the Borden of Proving that an administrator's-
bond executed on day of filing inventory, and for the amount re-
quired by law, has been altered.
Approved in Howell v. Hanrick, 88 Tex. 394, 29 S. W. 766, defend-
ant must prove that copy from land office is a forgery.
That Heirs may Maintain 8nit on administrator's bond, they
must show some injury to them as heirs.
Approved in Herbert v. Harbert (Tex. Civ.), 59 S. W. 595, re-
affirming rule; Metz v. People, 6 Colo. Ap. 61, 40 Pac. 53, there must
be an adjudication and allowance of claim before creditor has right
of action.
Heirs cannot Sue when there are nnsettled claims and adminis-
tration pending.
Beaffirmed in Northcraft ▼. Oliver, 74 Tex. 169, 11 S. W. 1123.
Where Record Shows No Action on defendant's general and special
exceptions to the petition, but shows a continuance at the same term
on defendant's application, defendant cannot complain because they
were disregarded by trial court.
Approved in Adams v. Duggan, 1 Tex. Ap. Civ. 736, it is not the
duty of the court to present and act on questions which the rights
of the parties might involve.
«85 NOTES ON TEXAS REPOBTa 54 Tex. 59-86
64 Tex. 59-64, DOWNS ▼. PGBTER.
When AflLrmative Belief is Sought by suit for specific performance
on a bond to convey land, consideration musrt be proven, but it is
unnecessary when relied on as color of title under defense of three
years' limitation.
Approved in Haynie Mercantile Co. v. Miller, 41 Tex. Civ. 81, 02
S. W. 263, vendee under written contract to sell land preferred to
subsequent attaching creditor; Tenzler v. Tyrrell, 23 Tex. Civ. 447,
75 S. W. 59, bond for title, where consideration paid, will support
plea of three years' limitations; Wilson v. Simpson, 68 Tex. 309. 4
S. W. 841, heirs to recover musrt prove consideration for bond; Fol-
well v. Clifton (Tex. Civ.), 28 S. W. 569, covenantee in a bond to
convey land may recover possession against mere trespassers, though
the consideration is not paid. See notes, 76 Am. Dec. 58; 80 Am.
Dec. 652.
A Bond for Title Authenticated in March, 1846, by affidavit of
subscribing witness is not affected by failure to state that witness
signed as such, and at instance of maker.
Approved in Jones v. Bobbins, 74 Tex. 619, 12 S. W. 826, reaffirm-
ing rule; Cox v. Bust (Tex. Civ.), 29 S. W. 808, an authentication
failing to show presence or a request to sign as witness is invalid.
54 Tex. 66-72, WATBGUS T. McKIE.
Snrronnding ClrcimiBtances can be Looked to in order to arrive
at true meaning of intention of parties to written instrument and to
the words therein, but no words can be added.
Beaffirmed in Bubrecht v. Powers, 1 Tex. Civ. 285, 21 S. W. 320.
54 Tex. 72-77, 38 Am. Bep. 620, OABLTON T. CAMEBGN.
A Deed Beserving a Life Estate to grantor is testamentary in
character and inoperative as a deed if the grantor intended it only
to take effect at his death.
Approved in Hamilton v. Jones, 32 Tex. Civ. 600, 75 S. W. 555,
reservation in deed of power to control and sell repugnant and void;
Sappingfield v. King, 49 Or. 109, 89 Pac. 144, 8 L. B A. (n. s.) 1066,
where wife deposited deed to husband with third person to take
effect on her death; Veal v. Fortson, 57 Tex. 488, statute of wills
cannot be avoided by giving a will the form of a deed; Castor v.
Jones, 86 Ind. 291, applying principle to power of attorney; Thrall
V. Spear, 63 Yt. 273, 22 Atl. 416, if grantee takes beneficial interest
it is a deed; Wren v. Coffey (Tex. Civ.), 26 S. W. 144, an instrument
conveying property to grantor's son, if the grantor did not dispose
of it before death, is a testament and not a deed; Hannig v. Hannig
(Tex. Civ.), 24 S. W. 697, holding jury should determine whether
an instrument was a deed or a testament. See notes, 92 Am. Dec.
386, 387; 26 Am. St. Bep. 90; 42 Am. St. Bep. 370; 89 Am. St. Bep.
497.
Distinguished in Kelly v. Parker, 181 HI. 61, 54 N. E. 618, and
Matthews v. Moses, 21 Tex. Civ. 497, 52 S. W. 115, deed good if use
only reserved; Whitmore v. Hay, 85 Wis. 249, 39 Am. St. Bep. 841,
55 N. W. 711y father could reserve use to himself and wife during life-
time.
54 Tex. 78-86, BCUBCHI80N T. WHITE.
A Judgment^of a Court not having jurisdiction ii( void, and cannot
be ratified or its nullity waived.
54 Tex. 78-86 NOTES ON TEXAS BEPOBTS. 988
ft
Approved in Treadwaj t. EaErtburn, 57 Tex. 212, the entire reeord
of the ease must be conndered to determine the jurisdiction. See
note, 81 Am. St. Bep. 536.
Voidable Judgments are Those Erroneously and irregularly ren-
dered by court having jurisdiction, and become valid by failure to
annul in proper time or by ratification and confirmation.
Approved in Wheeler v. Ahrenbeak, 54 Tex. 536, Fleming ▼. See-
ligson, 57 Tex. 531, Stewart v. Bobbins, 27 Tex. Civ. 192, 65 S. W.
902, and Smith v. Perkins, 81 Tex. 158, 26 Am. St. Bep. 800, 16 S.
W. 807, all reaffirming rule; Fleming v. Seeligson, 57 Tex. 532, suit
to set aside voidable judgment should be commenced within two
years; Johnston v. Sharpe (Tex. Civ.), 34 S. W. 1010, a valid judg-
ment will be sustained unless an appeal is taken within the statutory
time. *
Vnieirfbe Record Sbows, in a collateral proceeding, that the court
rendering judgment had neither jurisdiction of the person nor subject
matter, the judgment should be excluded.
Approved in Martin v. Burns, 80 Tex. 679, 16 8. W. 1075, Jones
V. Lasater, 2 Posey XJ. C. 436, and Lloyd v. Waller, 74 Fed. 606, all
reaffirming rule; First Nat. Bank v. Cohen (Tex. Civ.), 55 S. W. 533,
error to admit evidence in action against receiver that the order au-
thorizing the receiver to sell property was void because not delivered
in open court. See note, 21 L. B. A. 682.
A Judgment must be Attacked by a direct proceeding in proper
time when done for fraud or matters dehors the record.
Approved in Mills v. Herndon, 60 Tex. 360, Crawford v. McDon-
ald, 88 Tex. 632, 33 8. W. 328, Dickson v. Moore, 9 Tex. Civ. 518, 30
S. W. 79, Sherman etc. Laundry Co. v. Carter, ^ Tex. Civ. 535, 60
S. W. 329, Irion v. Bexar Co., 26 Tex. Civ. 530, 63 S. W. 552, Wake-
field V. King, 2 Tex. Ap. Civ. 611, and Myers v. Miller, 55 Mo. Ap.
344, all reaffirming rule; Peterson v. State, 40 Tex. Civ. 176, 89 8. W.
82, state could not attack judgment admitting alien to citizenship for
fraud and perjury in its procurement; Kenson v. Gage, 34 Tex. Civ.
549, 79 S. W. 606, judgment awarding land to purchaser at delinquent
tax sale cannot be attacked for want of proof of assessment or suffi-
ciency of citation; Watkins v. Ds^vis, 61 Tex. 415, jurisdiction appear-
ing on record of justice's court, the judgment is not subject to col-
lateral attack; Williams v. Haynes, 77 Tex. 284, 19 Am. St. Bep. 753,
13 S. W. 1030, Wilkerson v. Schoonmaker, 77 Tex. 617, 19 Am. St. Bep.
806, 14 S. W. 224, lams v. Boot, 22 Tex. Civ. 416, 55 S. W. 413, Paul v.
Willis, 69 Tex. 265, 7 S. W. 358, and Collins v. Miller, 64 Tex. 120,
record appearing regular as to the third party, evidence aliunde will
not be heard; Letney v. Marshall, 79 Tex. 515, 15 8. W. 587, judg-
ment cannot be impeached by defendant who pleaded to merits; Smith
V. Perkins, 81 Tex. 158, 26 Am. St. Bep. 799, 16 8. W. 807, plea in re-
convention is in nature of collateral attack, and not direct; Endel v.
Norris, 93 Tex. 543, 57 S. W. 25, justice's judgment foreclosing mort-
gage on personalty not subject to collateral attack on value of prop-
erty; Bordages v. Higgins, 1 Tex. Civ. 50, 19 8. W. 448, where de-
fault judgment had for delinquent taxes, validity of assessment cannot
be subject of inquiry on collateral attack; Moore v. Prince, 5 Tex. Civ.
354, 23 S. W. 1114, writ of error is a direct attack; Endel v. Norris
(Tex. Civ.), 57 8. W. 688, and Endel v. Norris (Tex. Civ.), 57 S. W.
25, both court of appeals and supreme court holding record not show-
ing value to give jurisdiction, collateral attack cannot 'obtain to show
987 NOTES ON TEXAS BEPORTS. 54 Tex. 78-86
want of jurisdiction; Blankenship v. Wartelskj (Tex. Sap.), 6 8. W.
143, a judgment of the county court void on its face can be collater-
ally attacked; Tucker y. Pennington (Tex. Civ.), 45 S. W. 314, a de-
fault judgment of the justice of the peace is valid, though it does
not recite that defendant was served. See notes, 79 Am. Dec. 752;
54 L. B. A. 768.
County Courts in Beference to Probate Matters, is a court of gen-
eral jurisdiction.
Approved in Brockenborough v. Melton, 55 Tex. 503, McNally ▼.
Haynetf, 59 Tex. 585, Bradley v. Love, 60 Tex. 475, Heath v. Layne,
62 Tex. 691, Martin v. Bobinson, 67 Tex. 374, 3 S. W. 552, Weems
V. Masterson, 80 Tex. 52, 15 S. W. 591, and Chapman v. Brite, 4 Tex.
Civ. 511, 23 S. W. 516, all reaffirming rule; Pelham v. Murray, 64
Tex. 481, under constitution of 1845, district court took their pro-
bate jurisdiction; Salmon v. Huff, 9 Tex. Civ. 167, 28 S. W. 1045,
presumption of jurisdiction obtains where district clerk probates a
will in vacation under constitntion of 1869. See note, 67 Am. Dec.
698.
Probate Oonrt Having Opened ProceedingB in matter of administra-
tion apparently regular, the presumption that jurisdiction attached
is conclusive on a collateral attack.
Approved in Butherford v. Stamper, 60 Tex. 450, Harris v. Shafer
(Tex. Civ.), 21 S. W. 112, and Mills v. Hemdon, 77 Tex. 90, 13 S.
W. 857, all reaffirming rule; Bogers v. Kennard. 54 Tex. 34, action of
probate court having jurisdiction in granting letters cannot be col-
laterally attacked; McNally v. Haynes, 59 Tex. 586, purchaser at ad-
ministrator'tf sale is only chargeable with recital in record in applica-
tion and order of sale; Edwards v. Halbert, 64 Tex. 670, confirmation
of sale conclusive in collateral proceeding, court having had juris-
diction; Neal V. Bartleson, 65 Tex. 486, decrees of county court issu-
ing land certificate cannot be questioned but on direct proceeding.
See notes, 91 Am. Dec. 347; 81 Am. St. Bep. 537; 11 L. B. A. 158.
As Between Parties and PrivleB, a judgment obtained by fraud is
not absolutely void, but voidable, subject to be set aside in a direct
proceeding brought for that purpose.
Approved in Gapt v. Stubbs, 68 Tex. 224, 4 S. W. 468, reaffirming
rule; Scudder v. Cox, 35 Tex. Civ. 417, 80 S. W. 873, where judgment
offered as link in chain of title, adverse party alleging fraud in its
procurement makes collateral attack on judgment; Mikeska v. Blum,
63 Tex. 47, judgment obtained by fraud is voidable, and not subject
to collateral attack; Buchanan v. Bilger, 64 Tex. 593, claim fraudu-
lently allowed may be set aside in a direct proceeding; Tevis v. Arm-
strong, 71 Tex. 65, 9 S. W. 138, proceedings to correct a misdescrip-
tion in decree in partition is stale if brought twelve years after;
Crawford v. McDonald, 88 Tex. 630, 33 S. W. 327, probate sales are
proceedings in rem, and devisees are parties thereto; Cooper v. May-
field (Tex. Civ.), 57 S. W. 50, when judgment showg that defendants
appeared, it is not subject to collateral attack. See note, 80 Am. Dec.
652.
A Suit by Heirs to Set Aside a Judgment, obtained through fraud
of administrator, must be brought within two years after disability
removed, and is in substance a bill of review.
Approved in Hanner v. Moulton, 138 U. S. 491, 11 Sup. Ct. Bep,
410, 34 L. 1035, reaffirming rule; McAnear v. Epperson, 54 Tex. 226,
minors mutrt commence \>ill of review within two years after youngest
54 Tex. 87-91 NOTES ON TEXAS BEPORTS. 98S
attains majority; Stewart v. Bobbins, 27 Tex. Civ. 191, 65 S. W. 901,
suit by ward to set aside order discharging guardian must be brought
within four years; Heidenheimer v. Loring, 6 Tex. Civ. 572, 26 S. W.
103, direct attack upon judgment for fraud upon jurisdiction may be
made within time fixed by statute of limitations; McCray v. Free-
man, 17 Tex. Civ. 274, 43 S. W. 39, instance where suit to correct
judgment is brought too late; Miller v. Miller, 21 Tex. Civ. 384, 53
S. W. 363, bill of review can be brought by minors in a guardianship
matter in probate court within two years; Stephens v. Hewett, 22
Tex. Civ. 305, 54 S. W. 302, bill of review is a direct attack; State v.
Superior Court, 8 Wash. 593, 36 Pac. 444, discussing right to modify
judgment of supreme court in lower court.
Valid Adminlstratioii Bale of Commiinity Property made to pay
community d«bts passes title to deceased's interest as well as wife's
interest, who survived but died before letters issued.
Approved in Charleton v. Goebler, 94 Tex. 97, 58 S. W. 830, reaffirm-
ing rule; Jackson v. Houston, 84 Tex. 625, 19 8. W. 800, the rule ap-
plies to equitable title, and passes if sale valid; McCampbell v. Durst,
15 Tex. Civ. 535, 40 S. W. 321, sale by administrator to himself is
voidable and subject to direct attack. See notea, 67 Am. Dec. 693;
87 Am. Dec. 163.
54 Tex. 87-^91, WALLACE T.. CAMPBELL.
Where Land is Pnrcliaeed With Community Funds, and deed taken
in wife's name, it is not notice that it was her separate property,
even though it was so intended, and amount paid by husband was
credited on account due wife from him.
Approved in Sanburn v. Schuler, 3 Tex. Civ. 633, 22 S. W. 120, Hick-
man V. Hoffman, 11 Tex. Civ. 607, 33 S. W. 258, and Kilgore v. Graves,
2 Tex. Ap. Civ. 359, all reaffirming rule; Stiles v. Japhet, 84 Tex.
95, 19 S. W. 451, property acquired during coverture is presumed to
be community property, irrespective of in whose name deed is taken.
See notes, 86 Am. Dec. 636, 637, 638, 643; 96 Am. Dec. 423; 126 Am.
St. Bep. 122.
Distinguished in Parker v. Coop, 60 Tex. 117, 118, a sabsequent
transaction between husband and wife cannot create- a resulting trust
in her favor; Bonner v. Stephens, 60 Tex. 619, where purchaser has
notice of wife's interest after levy, but before sale.
A Deed Taken in Wife's Name for Lands purchased with community
funds cannot have a trust, not expressed on its face, ingrafted on it
to detriment of an innocent purchaser.
Distinguished in Spencer v. Bosenthall, 58 Tex. 6, where recital is
in the deed; Schneider v. Fowler, 1 Tex. Ap. Civ. 493, rule does not
apply to personal property.
Deed Taken in Wife's Name for lands purchased with community
funds, and subsequently sold under execution sale to satisfy judgment
obtained against husband, a purchaser gets good title in absence of
recital in deed that land was wife's separate estate.
Approved in McKamey v. Thorp, 61 Tex. 652, Busvell v. Nail, 2
Tex. Civ. 64, 23 S. W. 901, both reaffirming rule; Zorn v. Tarver,
57 Tex. 391, jlidgment creditor of husband anterior to date of title
bond chargeable with notice of wife's interest; Senter v. Lambeth,
59 Tex. 262, unrecorded vendor's lien prevails over judgment lien sub>
sequently obtained. See note, 21 L. B. A. 35.
089 NOTES ON TEXAS REPORTS. 54 Tex. 91-101
A Judgment Lien Against a Debtor is anperior to legal title which
had been conveyed to him hj a third party, but which was unre-
corded, and of which the creditor did not have actual notice at the
date of his lien.
Approved in RuBsell v. Nail (Tex. Civ.), 23 S. W. 901, reaffirming
rule; Le Doux y. Johnson (Tex. Civ.), 23 S. W. 905, a jury can find
for plaintiffs for one-half of the rents where they were instructed
the plaintiffs had no notice of transfer of leasehold at time of their
levy.
Distinguished in Masterson v. Burnett, 27 Tex. Civ. 375, 66 S. W.
93, where judgment debtor bought land under deed reciting considera-
tion as paid, giving Mparate trust deed for purchase price, judgment
lien attached only to his interest.
Judgment Creditor Parchaeing at his execution sale, and having
amount of bid credited on the execution, is a bona fide purchaser.
Reaffirmed in Senter v. Lambeth, 59 Tex. 263. Approved in
McLane v. Sullivan, 29 Tex. Civ. 252, 69 S. W. 194, surety pur-
chasing at foreclosure land of debtor of principal may be bona
fide purchaser, though money credited on judgment against him
and principal. See notes, 86 Am. Dec. 639; 86 Am. Dec. 669; 79 Am.
St. Rep. 949.
Distinguished in Bailey v. Tindall, 59 Tex. 542, party taking deed
of trust to secure pre-existing debt on purchase at trust sale takes
subject to vendor's lien; Black v. Caviness, 2 Tex. Civ. 121, 21 S. W.
636, purchaser without notice of trust crediting on pre-existing debt
takes subject to trust.
54 Tex. 91-97, 8HEPPABD ▼. HARBISON.
Certified Copy of Protocol of Grant on deposit in land office is
sufficient to establish title in grantee without accounting for testi-
ntonio or showing one issued.
Approved in Beaumont Pasture Co. v. Preston, 65 Tex. 459, and
Van Sickle v. Catlett, 75 Tex. 407, 13 8. 'V^. 31, both reaffirming rule;
State v. Spohn (Tex. Civ.), 83 S. W. 1135, grant presumed from recog-
nition by governments and long-continued claim of ownership and
possession; Houston v. Blythe, 60 Tex. 514, that testimonio was not
issued for several days after grant made is immaterial.
54 Tex. 97-99, EBHABT T. BASS.
An Order Beciting That ''An Acconnt of an administrator is regular
and authenticated in accordance with law*' is equivalent to a confirma-
tion of sale.
Cited in Whitaker v. Thayer, 38 Tex. Civ. 541, 86 S. W. 366, where
approval of sale contained evidence of receipt of purchase money by
administrator. See note, 84 Am. Dee. 610.
54 Tex. 99-101, BABEB v. BBOWN.
An Alias* Citation, lasned to Anotber County before pleading
amended, alleging defendant to be a resident of that county, is valid
where returned with proper service.
Approved in Lauderdale v. Ennis Stationery Co., 80 Tex. 498, 16 S.
W. 309, reaffirming rule; Ft. Worth etc. By. Co. v. Hagler, 38 Tex. Civ.
54, 84 S. W. 693, where it becomes necessary to issue citation to clerk
of other county, mere suggestion devolves duty upon clerk of proper
court; Gillmour v. Ford (Tex. Sup.), 19 S. W. 443, an application for
alias citation need not be served upon defendant.
54 Tex. 101-149 NOTES ON TEXAS EEPORTa 990
54 Tex. 101-114, HANBIOE T. HANBIOE.
BapaalB by Implic«ti<m are not Fayored, and both statutes will
stand if reconcilable.
Approved in Eustis ▼. Henrietta (Tex. Civ.), 37 S. W. 035, holding
municipal ordinance providing for the collection of municipal taxes
is not repealed by the general statute by implication.
Act of February, 1854, was an affirming and enlarging statute, giv-
ing to aliens rights, additional to those under act of 1848, that were
accorded to United States citizens by government to which the alien
belonged.
Approved in Hanrick v. Hanrick, 61 Tex. 603, until act of 1854
alien could take defeasible title from citizen ancestor dying intestate.
See note, 31 L. B. A. 105, 179.
Statutes of 1840 and 1848 vested a defeasible title in alien children
and heirs of a citizen of United States dying intestate subject to be
declared forfeited by government in a proper proceeding.
Approved in Hanrick v. Hanrick, 63 Tex. 623, Wiederanders v.
Stete, 64 Tex. 139, Hanrick v. Gurley, 93 Tex. 467, 54 S. W. 350, and
Hanrick ▼. Patrick, 119 U, S. 167, 7 Sup. Ct. Bep. 153, 30 L. 402, all
reaffirming rule; Wiederanders v. State, 64 Tex. 142, re-entry by state
must be by judicial process; Gray v. EaufPman, 82 Tex. 67, 17 S. W.
514, alien may acquire land by purchase, devise, or descent, and
maintain action therefor, but title is defeasible; Eircher v. Murray,
54 Fed. 621, persons who are aliens when descent cast take defeasible
title in Texas. See note, 31 L. B. A. 104, 105.
Miscellaneous. — Cited in Hanrick v. Hanrick (Tex. Oiv.), 81 S. W.
795, 796, and Hanrick v. Hanrick, 61 Tex. 605, another phase of same
litigation; Hanrick v. Gurley (Tex. Civ.), 48 S. W. 1001, an alien may
inherit property in Texas; Zundell v. Gess (Tex. Sup.), 9 S. W. 880,
an alien can acquire lands in Texas by purchase, devise, or descent.
54 Tex. 119^125, TEXAS ETC. BY. T. HARBISON OOXTinnr.
When Qaestion of Valuation for Taxation has been submitted to
the board of equalization, its decision is final.
Beaffirmed in State v. Central Pacific B. B., 21 Nev. 179, 26 Pac.
1110; Sherard v. Lindsay, 13 Ohio C. C. 321.
Itimitation Imposed by Constitution of 1876 on power of counties
to levy taxes applies only to erection of public buildings. A levy to
pay interest and pre-existing debts is good.
Approved in Dean v. Lufkin, 54 Tex. 270, does not apply to pay-
ment of debts contracted before adoption of constitution.
54 Tex. 125-149, HOUSTON ETC. B. R. T. 8HIBLET.
A Voluntary Consolidated Corporation assumes the liabilities of its
constituent corporation, and may be sued therefor in its new name.
Approved in Morrison v. American Snuff Co., 79 Miss. 338, 89 Am.
St. Bep. 598, 30 So. 724, Mo. Pac. By. v. Owens, 1 Tex. Ap. Civ. 165,
and G. C. & S. F. By. v. Hutcheson, 3 Tex. Ap. Civ. 122, reaffirming
rule; Gulf etc. By. v. Newell, 73 Tex. 338, 15 Am. St. Bep. 791, 11 a
W. 343, ownership alone does not operate as consolidation; Pennsyl-
vania etc. B. B. V. Harkins, 149 Pa. 132, 24 Atl. 179, suit may be
brought in name of consolidated company; Langhome v. Bichmond
City By., 91 Va. 375, 22 S. £. 161, upon consolidation the action for
tort lies against one for the tort^ and against the other by reason of
991 NOTES ON TEXAS REPORTS. 64 Tex. 125-149
consolidation. See notes, 59 Am. St. Bep. 550, 559; 89' Am. St. Rep.
638.
Foundation of Ziiabillty of a Consolidated corporation for debts and
liabilities of its constituent corporations must rest on agreement,
either express or implied.
Approved in Kansas City etc. By. Co. v. King, 74 Ark. 369, 85 S.
W. 1132, purchaser of railroad at foreclosure takes it subject to prior
liens and ffuch debts as court may provide for in its decree; Texas etc.
By. V. Lyons (Tex. Civ.), 34 S. W. 363, one railroad merely succeed-
ing another does not imply that the former assumes the obligations of
the vendor; Houston etc. By. v. Norris (Tex. Civ.), 41 S. W. 709,
purchaser of a railroad takes the road clear of all claims against the
receiver, unless otherwise ordered by its terms of sale; Houston etc.
By. V. Keller, 8 Tex. Civ. 539, 28 S. W. 725, the lienholder must look
to purchase money for satisfaction; Thayer v. Wathen, 17 Tex. Civ.
392, 44 S. W. 910, holding upon formation of corporation there must be
a transfer or purchase before new corporation acquires the assets;
Williams ▼. Texas etc. B. B., 22 Tex. Civ. 282, 55 S. W. 132, there
must be a special assumption of the existing liabilities; Berry v.
Kansas City etc. B. B., 52 Kan. 775, 39 Am. St. Bep. 382, 36 Pac. 725,
in absence of agreement liabilities follow as an incident to the con-
solidation; National Foundry etc. Works v. Oconto City etc. Co., 105
Wis. 58, 81 N. W. 129, liabilities cease as to new corporation upon
acquiring at judicial sale. See note, 3 L. B. A. 435.
Exemplary Damages cannot be had on suit for breach of contract.
Approved in Malin v. McCutcheon, 33 Tex. Civ. 389; 76 S. W. 587,
mere refusal to pay money when demanded will not justify exemplary
damages; Ball v. Britton, 58 Tex. 63, exemplary damages recoverable
where tort is committed arising out of the contractual obligation;
G. C. & S. P. By. V. Levy, 59 Tex. 548, 46 Am. Rep. 274, exemplary
damages will be awarded against telegraph company if malice or
gross negligence shown; McCauley v. Long, 61 Tex. 79, pleader need
not go into detail in setting up fraud and malice on suit for exem-
plary damages; Hooks v. Fitzenrieter, 76 Tex. 279, 13 S. W. 230, San
Antonio etc. By. v. Kniffen, 4 Tex. Civ. 489, 23 S. W. 460, and Shirley
V. Waco Tap. By., 78 Tex. 138, 10 S. W. 645, exemplary damages may
be recovered for the tort; dissenting opinion, Brooke v. Clark, 57
Tex. 115, majority upholding that a charge on exemplary damages
may be given when gross mistake is made. See notes, 28 Am. St.
Bep. 874; 59 Am. St. Bep. 593.
The Bejection of a Deposition is discretionary with the court, but
it should not be rejected for failure of witness to answer immaterial
interrogatory.
Approved in Galveston etc. By. Co. v. Baumgarten, 31 Tex. Civ.
256, 72 S. W. 80, where failure to answer fully was unintentional;
Coleman v. Colgate, 69 Tex. 90, 6 S. W. 557, deposition should be
suppressed where witness testifying by deposition refuses to produce
letters and documents on mere ground that they are too voluminous;
and New York etc. By. v. Green, 90 Tex. 263, 264, 38 S. W. 32, 33,
refusal of medical expert to answer material interrogatory as to his
experience is ground for suppression of deposition.
Corporations can Exerdae Only Powers conferred by law or essential
to their existence.
See note, 52 L. B. A. 380.
54 T^x. 149-169 NOTES ON TEXAS EEPORTS. 992
Consolidated Boads cannot be Transferred to competing or parallel
roads.
See note, 52 L. B. A. 372.
Where Consolidated Company had Preyionsly Purchased franchise
and roadbed under deed of trust, assuming liability only on construc-
tion contract, held it was not liable for other debts.
See note, 23 L. B. A. 232.
Miscellaneous. — Houston etc. By. v. Shirley, 89 Tex. 97, 31 S. W.
291, Shirley v. Waco Tap. B. Co. (Tex.), 10 S. W. 545, Shirley v.
Waco Tap. B. Co., 13 Fed. 705, and Houston etc. By. v. Shirley (Tex.
Civ.), 24 S. W. 810, all subsequent phases of same case.
54 Tex. 149-150, BONNES T. WiaGIN&
Judgment in Supreme Court that appellant recover all costs ex-
pended in this behalf is a judgment for costs of appeals in supreme
and district courts.
Approved in Cope v. Lindsey, 17 Tex. Civ. 205, 43 S. W. 30 (af-
firmed, see 91 Tex. 464, 43 S. W. 30), costs on appeal collectible under
execution in district court; Gulf etc. By. v. Hume (Tex. Sup.), 30 S.
W. 863, and Henson v. Byrne, 91 Tex. 627, 45 S. W. 383, both holding
costs of transcript collectible on execution from district court.
54 Tex. 150-152, BELL ▼. VANZANDT.
It is Error to Bender Judgment in favor of parties not mentioned
as parties in the pleadings.
Approved in Craddock v. Scarborough, 54 Tex. 349, judgment must
follow petition; Green v. Brown (Tex. Ap.), 15 S. W. 38, where the
amended petition states plaintiff's name differently than the original,
a judgment in favor of the name of the plaintiff given in the original
pleading is not final.
Distinguished in Oreen v. Brown, 4 Tex. Ap. Civ. 230, 15 S. W. 38,
writ of error dismissed for want of final judgment because error made
in party's name.
64 Tez. 152-163, BBUHN T. NATIONAL BANK.
There Must be No Presumption in favor of special jurisdiction.
Approved in Whitman v. Bhomberg (Tex. Civ.), 25 S. W. 452, and
Bowser v. Williams, 6 Tex. Civ. 202, 25 S. W. 455, both holding record
should show how jurisdiction was acquired.
54 Tez. 153-169, MILAM COUNTY T. BATEMAN.
Valid Location on Vacant Land and a survey constitutes a vested
right, and the legislature does not retain disposition until patent
issues.
Beaffirmed in Milam County v. Blake, 54 Tex. 171, and Jones v.
Lee, 86 Tex. 41, 22 S. W. 394.
Counties are Bodies Politic, and have capacity to take and hold
title in fee to realty and personalty.
Cited in 73 Am. Dec. 277, note.
Under Constitution of 1869, Legislature had control of county
school lands, and could provide for their sale, the proceeds to go to
public school fund, but could not devest the counties of their school
lands.
Approved in Baker v. Dunning, 77 Tex. 30, 13 S. W. 617, state may
regulate sale of lands; dissenting opinion in Galveston etc. By. v.
993 NOTES ON TEXAS BEPORTS. 54 Tex. 169-191
State, 77 Tex. 417, 13 S. W. (523, majority construing section 2, article
14 of constitution to assume that tbere was unappropriated public
domain upon which land certificates could be located.
Distinguished in Board of School Trustees ▼. Galveston etc. Bj. Go.
(Tex. Civ.), 67 S. W. 149, Bepublic of Texas had power to designate
purposes to which public lands in city should be devoted.
The I«eglalatare can, When not Bestrained by OonstitaVon, exercise
absolute power over political rights of counties, and those rights are
not within constitutional prohibition against retroactive laws and
those which impair vested rights.
Approved in Board of Education v. Blodgett, 155 HI. 450, 46 Am.
St. Rep. 355, 40 N. E. 1028, 31 L. B. A. 70, reaffirming rule; White v.
Martin, 66 Tex. 345, 17 S. W. 729, retroactive laws are void; Weeks
V. Galveston, 21 Tex. Civ. 106, 51 S. W. 546, restricting land to public
use is not impairing obligation of contract; and see note, 35 Am. St.
Bep. 532.
Where Property Donated by State for Specific Pnrpoee, the state may
use supervisory control to enforce trust, but cannot, by legislation,
divert its use to other and different parties and purposes.
Beaffirmod in State v. Foley, 30 Minn. 357, 15 N. W. 378.
The Legislative Action cannot be Betroactiye upon past contro-
versies, nor to reverse decisions which the courts, in the exercise of
their jurisdiction, have made.
Cited in Felix v. Board of County Commissioners, 62 Kan. 840, 84
Am. St. Bep. 424, 62 Pac. 670, denying validity to act purporting to
legalize county warrants issued under void law; McManus v. Horna-
day, 124 Iowa, 271, 100 N. W. 34, 104 Am. St. Bep. 316, subsequent
statute could not legalize special street assessment which had been
held void. See notes, 79 Am. Dec. 796; 80 Am. Dec. 731.
Party Olaiming Under Quitclaim Deed cannot defend as a bona fide
purchaser.
Beaflirmed in Tate v. Kramer, 1 Tex. Civ. 434, 23 S. W. 257. See
note, 105 Am. St. Bep. 859.
Miscellaneous. — Milam Co. v. Blake, 54 Tex. 170, referred to for
record and evidence.
54 Tex. 169-171, MILAM COJJlSnrr T. BLAKE.
Miscellaneous. — Milam Co. v. Bateman, 54 Tex. 160, 162, referred to
in stating facts of the litigation.
64 Tex. 171-191, HOWABD ▼. McKENZIEL
Alleged Assignee of Deceased Plaintiff cannot come in and pros-
ecute, over objection of defendant, until legal representative or heir
have an opportunity to admit or contest his right, but objection must
be made at outset.
Beaffirmed in Smith v. Harrington, 3 Wyo. 508, 27 Pac. 805.
Approved in Campbell v. Upson (Tex. Civ.), 81 S. W. 359, where
jurisdiction obtained over party, judgment against him after his
death not void, though heirs and representatives not made parties.
See note, 126 Am. St. Bep. 630.
Possession of Vendee, Under Executory Contract^ may become so
far adverse that he may acquire title by limitation.
Beaffirmed in Smith v. Pate, 91 Tex. 598, 45 S. W. 7. Approved in
Hintze v. Krabbenschmidt (Tex« Civ.}, 44 S. W. 39, notice of adverse
2 Tex. Note&— 63
54 Tex. 193-198 NOTES ON TEXAS BEPORTS. 994
possession by lessee must be given to landlord before statute of
limitation runs in lessee's favor.
Vendee, cm Discovering Land Vacant, is not bound to surrender or
abandon possession, but may take steps to appropriate land to himself.
Cited in 65 Am. Dec. 144, note,
A Motion for Behearing in Supreme Court will not be entertained
if one of seyeral opposing parties is not represented, and his name
and residence are not given and service had on him.
Reaffirmed in Doll v. Mundine, 7 Tex. Civ. 101, 26 S. W. 89.
TTnauthorized Cancellation of Patent is ineffective.
Approved in Smithers v. Lowrance, 100 Tex. 82, 93 S. W. 1065, land
commissioner cannot cancel grant so as to shift burden of proof.
Miscellaneous. — Stewart v. Masterson, 131 U. S. 157, 9 Sup. Ct. Rep^
684, 33 L. 116, passing on title founded on McMullen grants.
54 Tex. 19S-198, 8TEGALL v. HUFF.
A Default Judgment ia Void if citation was' had by publication
based upon an affidavit reciting defendant's place of residence un-
known.
Approved in Humphrey v. Beaumont Irr. Co., 41 Tex. Civ. 315, 93
S. W. 182, citation insufficient where description of land indefinite;
Traylor v. Lide (Tex. Sup.), 7 S. W. 62, jurisdiction must be shown
affirmatively in the judgment; Borden v. Horeston, 26 Tex. Civ. 31,
62. S. W. 427, prerequisites required for service by publication must be
strictly complied with.
Sale of Land Made Under Execution based on void judgment vests
no title, and owner is not bound to refund purchase money.
Approved in Albers v. Kozeluh, 68 Neb. 528, 94 N. W. 523, judg-
ment upon service by publication based upon affidavit containing no
venue; French v. Grenet, 57 Tex. 282, no title passes on execution sale
under void judgment; Northcraft v. Oliver, 74 Tex. 168, 11 S. W. 1122,
owner not bound to pay purchase money when sale is held under a
void judgment; Texas Land etc. Co. v. State, 1 Tex. Civ. 620, 23 S.
W. 259, three years* statute of limitation will not prevail under void
patent; Bichards v. Belcher, 6 Tex. Civ. 286, 25 S. W. 741, if sale
valid, purchase money must be paid back. See note, 69 L. R. A. 53.
Five Years' Statute of Limitation will not be supported by oc-
casional use of land for purpose of cutting timber unaccompanied by
actual residence.
Approved in McDow v. Babb, 56 Tex. 161, entering to cut lumber
for purpose of fixing fences not adverse possession; Costello v.
Muheim, 9 Ariz. 429, 84 Pac. 908, mere adding of a few feet to depth
of mining shaft not adverse possession. See note, 62 Am. Dec. 177.
In Action to Try Title, if defendant claim through sheriff's deed,
plaintiff is not required to deraign title beyond himself as a common
source.
Approved in Burns v. Goff, 79 Tex. 239, 14 S. W. 1010, Johnson v.
Foster (Tex. Civ.), 34 S. W. 824, and Cox v. Hart, 145 U. S. 386, 12
Sup. Ct. Rep. 966, 36 L. 745, all reaffirming rule; Hughey v. Mosby, 31
Tex. Civ. 77, 71 S. W. 396, void deed of wife to husband sufficient to
show common source in action by her heirs; Calder v. Bamsey, 65
Tex. 219, 18 S. W. 502, it is not necessary to show complete chain
from original grantee to common source; Ogden v. Bosse, 86 Tex. 346,
24 S. W. 802, each party must prove his own title to common source.
See note, 47 Am. St. Kep. 76.
995 NOTES ON TEXAS BEPOBTS. 54 Tex. 198-206
Distinguished in Ogden v. Bosse (Tex. Civ.), 23 S. W. 732, rule
does not apply where defendant's plea is practically that of "not
guilty."
54 Tex. 198-201, BODBIOUE8 T. TBEVINO.
Party Olalmlng Adverse to Defendant in attachment proceeding has
no claim for money realized at sale, and cannot intervene.
Approved in Beddick v. Elliot (Tex. Civ.), 28 S. W. 44, Williams
V. Bailey (Tex. Civ.), 29 8. W. 835, Jaffray v. Meyer, 1 Tex. Ap.
Civ. 791, and Fisher v. Bogarth, 2 Tex. Ap. Civ. Ill, all reaffirming
rule; Byan v. Goldfrank, 58 Tex. 358, party claiming should file claim-
ant's bond. See note, 35 L. B. A. 773.
A Judgment Against One of Several Defendants, the record not dis-
closing what disposition made as to the others, is not a final judgment.
Approved in Burrows v. Cox (Tex. Civ.), 38 8. W. 50, and Sandoval
V. Bosser (Tex. Civ.), 26 S. W. 932, both following rule; Linn v.
Arambould, 55 Tex. 619, all issues as to all parties must be adju-
dicated; International etc. B. B. v. Smith Co., 58 Tex. 77, dissolu-
tion of temporary injunction and for costs not final; Bradford v.
Taylor, 64 Tex. 171, reversal as to defendant appealing is a reversal
as to codefendant; Cook v. Pollard, 70 Tex. 727, 8 8. W. 514, in de-
termination of priority of lien, all claiming liens are interested
parties; Missouri Pac. By. v. Scott, 78 Tex. 361, 14 8. W. 792. cause
must be disposed of as to all defendants; dissenting opinion, Darnell
V. Lyon, 85 Tex. 465, 22 8. W. 308, majority rule that court of civil
appeal can refer special questions of law to supreme court. See note,
60 Am. Dec. 436.
54 Tex. 201-206, 38 Am. Bep. 623, KOOOUBEK T. MABAK.
Oertiflcato of Officer to Separate acknowledgment of wife to con-
veyance is conclusive of facts therein stated in absence of fraud,
duress, or imposition, and third party is not affected unless he
participated or had notice.
Approved in Waltee v. Weaver, 57 Tex. 571, Davis v. Kennedy,
58 Tex. 520, Herring v. White, 6 Tex. Civ. 251, 25 S. W. 1017, Sum-
mers V. Sheern (Tex. Civ.), 37 S. W. 247, McFalls v. Brown (Tex.
Civ.), 37 8. W. 785, Hagan v. Conn (Tex. Civ.), 40 8. W. 20, and
Thompson v. Johnson, 24 Tex. Civ. 249, 58 8. W. 1032, all reaffirm-
ing rule; Wheelock v. Cavitt, 91 Tex. 682, 45 8. W. 797, and Coker
T. Boberts, 71 Tex. 601, 9 8. W. 667, purchaser in good faith is
protected; Hickman v. Hoffman, 11 Tex. Civ. 607, 33 8. W. 259,
if grantee does not participate in the fraud, he is protected; Caffey
V. Caffey, 12 Tex. Civ. 620, 35 8. W. 740, wife may recover if fraud
exists, where she conveys to trustee for husband's benefit; Pickens v.
Knisely, 29 W. Va. 10, 6 Am. St. Bep. 630, 11 8. E. 935, and Grider
V. American Freehold etc. Co., 99 Ala. 285, 42 Am. St. Bep. 60, 12 So.
777, certificate cannot be impeached in absence of fraud or duress;
and see notes, 67 Am. Dec. 445; 81 Am. Dec. 602; 2 Am. St. Bep. 559;
6 Am. St. Bep. 643.
Husband's Threats to Desert Wife unless she complied with his
demands, accompanied by abuse, amount to duress.
Distinguished in Kester v. Eester, 38 Or. 14, 62 Pac. 637, holding
wife's mutilation of note given by husband and another not done
under duress when husband's threat to leave not made till long after
mutilation.
54 Tex. 206-226 NOTES ON TEXAS BEPORTS. 996
54 Tex. 206-213, CLAYTON v. McKINNON.
Judgment In a Cause Tried In District Coiirt, without intervention
of jury, will be sustained if there be suffi<^ient competent evidence,
although there was erroneous admission of evidence.
Approved in Jonee v. Daj, 40 Tex. Civ. 162, 88 S. W. 426, Lindsaj
V. Jaffray, 55 Tex. 640, St. Louis etc. By. v. Ticer, 3 Tex. Ap. Civ.
476, and First Nat. Bank v. Greenville Oil etc. Co., 24 Tex. Civ. 649,
60 8. W. 830, all reaffirming rule; Wells v. Hurts, 3 Tex. Civ. 436, 22
8. W. 421, it will not be presumed that court misapplied evidence.
A Ward is Bound by Legal Acts of guardian.
Approved in Kendrick v. Wheeler, 85 Tex. 253, 20 8. W. 46, ward
bound by lawful acta of guardian in dealing with innocent purchasers;
Fitzwilliams v. Davie, 18 Tex. Civ. 84, 43 8. W. 842, when ward re-
ceives equal benefits, order of probate court should not be disturbed.
See note, 69 L. B. A. 45.
64 Tex. 21S-216, TEXAS TBANSPOBTATION CO. v. HYATT.
Application for Continuance will be Denied when defendant has
only interposed a general denial, which constitutes no defense, but if
rebutting evidence admissible, consideration should be given to ap-
plication.
Approved in Smith v. Bates (Tex. Civ.), 28 8. W. 64, following
rule; Willis v. Hudson, 63 Tex. 682, general denial puts plaintiff to
proof of every affirmative allegation necessary to recover.
On the First Application for Continuance, it is unnecessary to show
that fees of absent witness have been tendered.
Approved in Blum v. Bassett, 67 Tex. 196, 3 S. W. 35, and H. k
T. C. By. V. Wheeler, 1 Tex. Ap. Civ. 68, both reaffirming rule; Barth
V. Jester, 3 Tex. Ap. Civ. 268, first and second application for con-
tinuance containing requirement of statute is not addressed to dis-
cretion of court. See note, 74 Am. Dee. 146.
54 Tex. 218-220, SENS v. TEENTUNE.
There is No Such Privity of Parties between an owner and a sab-
contractor to warrant a personal judgment and establishment of
mechanic's lien against the former.
Approved in MuUer v. McLaughlin, 37 Tex. Civ. 452, 84 S. W. 688,
where contract for improving homestead not signed by wife, material-
man gains no right to personal judgment by serving notice; I. & 6.
N. B. B. V. Hutchins, 1 Tex. Ap. Civ. 123, there is no liability when
there is no privity of contract. See note, 14 L. B. A. (n. s.) 1036.
54 Tex. 220-226, 38 Am. Eep. 625, McANEAB T. EPPERSON.
A Judgment is not Subject to Collateral Attack for nonserviee of
minors, when judgment recites appearance of minors, adjudication of
minority, appointment of guardian ad litem, his appearance and de-
fense.
Approved in Fortune v. Eillebrew (Tex. Civ.), 21 8. W. 991, follow-
ing rule; Kapiolani Estate v. Ateherly, 14 Haw. 664, upholding decree
directing conveyance by guardian of minor's property, though guard-
ian alone made defendant; Alston v. Emmerson, 83 Tex. 237, 29 Am.
St. Bep. 642, 18 S. W. 567, judgment rendered without actual service
of process on minors, defendants, represented by a guardian ad litem
is not void; TJlmer v. Prankland (Tex. Civ.), 27 8. W. 766, a judg-
ment rendered without bringing the defendants into court is not void;
997 NOTES ON TEXAS BEPOETa 54 Tex. 226-230
Johnston ▼. Sharpe (Tex. Civ.), 34 S. W. 1010, a party to a suit
can only attack it hy a proceeding appellate in character; Wheeler
▼. Ahrenbeaky 54 Tex. 536, judgment when guardian ad litem appears
ia not void; Wichita Land etc. Co. v. Ward, 1 Tex. Civ. 313, 21 S. W.
131, failure to appoint guardian ad litem would render judgment
voidable, not void; Moore v. Prince, 5 Tex. Civ. 354, 23 S. W. 1114,
an appeal or writ of error is a direct attack; and see notes, 76 Am.
Dec. 124; 89 Am. Dec. 186, 188; 7 Am. St. Rep. 137.
Proceeding b^ Bill of Bevlew most be Commenced, if instituted
by heirs, within two years after youngest attains majority.
. Approved in Ferguson v. Morrison (Tex. Civ.), 81 S. W. 1241, Flem-
ing V. Seeligson, 57 Tex. 532, Best v. Nix, 6 Tex. Civ. 353, 25 S. W.
132, Stewart v. Bobbins, 27 Tex. Civ. 191, 65 S. W. 901, and Miller
V. Miller, 21 Tex. Civ. 384, 53 S. W. 363, all reaffirming rule; Best v.
Nix, 6 Tex. Civ. 353, 25 S. W. 131, minor inheriting right to attack
voidable judgment and marrying while minor, barred from prosecut-
ing bill of review in two years from her marriage; Jones v. Parker, 67
Tex. 79, 3 S. W. 224, if error appears on record, writ of error to dis-
trict court is the proper remedy; and see notee, 89 Am. Dec. 189, 190.
Distinguished in McLane v. San Antonio Nat. Bank (Tex. Civ.), 68
8. W. 65, suit to reform judgment may be brought within four years,
subject to defense of laches.
Article 12, Section 43, Constitution of 1869, which suspended statute
of limitation in civil suits from 1861 to 1870, did not apply to prosecu-
tion of writs of error;
Beaffirmed in Best v. Mix, 6 Tex. Civ. 352, 25 S. W. 131.
54 Tex. 226-230, ABBAHAM8 v. VOLLBAUM.
Maker of a Trust Deed should be made a party to a suit to enjoin
a sale under trust deed, and omission to make him a party will be
cause for reversal.
Approved in Knopf v. Chicago Beal Estate Board, 173 HI. 199, 50
N. £. 660, objection is good at any time and court should bring in
necessary parties of its own motion.
Prior to Adoption of Bevlsed Civil Statute, party could not sue
by next friend. It was necessary to appoint special guardian; such
ia not the law now.
Approved in Holzheiser v. Gulf etc. By., 11 Tex. Civ. 678, 33 S.
W. 887, reaffirming rule; G. C. & S. F. By. v. Styron, 2 Posey XJ.
C. 276, and Evansich v. G. C. & S. F. By., 57 Tex. 127, 44 Am. Bep.
587, both holding, under Bevised Statutes, father may sue as next
friend of minor son; Blankenship v. Kanawha etc. By., 43 W. Ya.
139, 27 S. E. 357, and Gulf etc. By. v. Styron, 66 Tex. 425, 1 S. W.
163, both holding, in suit for use and benefit of minor, he is really
the plaintiff; Hays v. Hays, 66 Tex. 608, 1 S. W. 896, under act
requiring special guardian, next friend could not sue. See note, 64
L. B. A. 524.
Prior to Bevised Civil Statute, an adult who was non compos mentis
might be represented by special guardian, the court, being satisified of
mental condition, allowing suit to proceed without formal inquest of
lunacy being made.
Approved in Holzheiser v. Gulf etc. By., 11 Tex. Civ. 677, 33 S. W.
887, there need be no adjudication of lunacy.
54 Tex. 231-244 NOTES ON TEXAS BEPOETS. 998
64 Tex. 231-233, HALL ▼. WOOTEBS.
Oonstndng Article 4811, Bevlsed Civil Statates^ ia eonBeetion with
sections 4 and 5 of final title thereof, second action of trespass to
try title is not precluded by former judgment before enactment of
code.
Keaffirmed in Sanchez v. Bamirez, 58 Tex. 313, Lanier ▼. Ferryman,
59 Tex. 108, Bitner v. New York etc. Land Co., 67 Tex. 344, 3 8. W.
302, and Hill v. Moore, 85 Tex. 339, 19 S. W. 163.
54 Tex. 233-234, HOUSTON ETC. B. B. ▼. MULDBOW.
Bailroad Company is not Liable Under Statute for interest on valae
of livestock killed by its locomotives, and the measure of damages is
the value at time of killing.
Approved in St. Louis etc. By. v. Ohambliss, 93 Tex. 62, 63, 53
S. W. 343, 344, T. & P. B. B. v. Lanham, 1 Tex. Ap. Civ. 99, Galves-
ton etc. Ry. V. Dromgoole (Tex. Civ.), 24 S. W. 372, Texas etc. Ey.
V. Payne (Tex. Civ.), 35 S. W. 298, Texas etc. By. v. Billingsley
(Tex. Civ.), 37 S. W. 27, Galveston etc. By. v. Downey (Tex. Civ.),
28 S. W. 110, and New York etc. B. B. v. Zumbaugh, 12 Ind. Ap.
274, 39 N. E. 1058, all reaffirming rule; St. Louis etc. By. v. Terry,
22 Tex. Civ. 178, 54 S. W. 432, reaffirming rule and overruling cer-
tain other cases (cited in the opinion as having disapproved the
rule); Atchison etc. B. B. v. Gabbert, 34 Kan. 136, 8 Pac. 221, could
not recover interest under law of 1874; G. H. & S. A. B. B. v. Davis,
1 Tex. Ap. Civ. 59, company liable for stock killed when road not
fenced; Texas etc. By. v. Davis, 2 Tex. Ap. Civ. 158, market value is
the measure of damages when property is lost or destroyed while in
custody of carrier; Texas etc. By. v. Cunningham, 4 Tex. Civ. 263, 23
S. W. 332, the allowance of interest is error. See note, 18 L. B. A.
451.
Overruled in Gulf etc. By. v. Dunman, 6 Tex. Civ. 102, 24 S. W. 996,
measure of damage is market value at killing with legal interest to
date of judgment; Houston etc. By. v. Jones, 16 Tex. Civ. 180, 40 S.
W. 746, interest recoverable from date of killing.
54 Tex. 235-244, BABBON ▼. THOMPSON.
A Judgment upon Which Executions have been reg^nlarly issued
as prescribed by law operates as a lien on property acquired after
judgment in county where judgment was rendered.
Cited in notes, 93 Am. Dec. 357, 358; 117 Am. St. Bep. 784.
Though Execution may Issue Within a year after rendition of judg-
ment, it does not continue judgment until judgment becomes dormant
unless diligence is used to enforce lien.
Approved in Ficklin v. McCarty, 54 Tex. 371, reaffirming rule;
Johnson v. Weatherford, 31 Tex. Civ. 182, 71 S. W. 790, that debtor
is insolvent does not excuse failure to issue execution each year;
Anthony v. Taylor, 68 Tex. 405, 4 S. W. 532, and Baasett v. Proet-
zel, 53 Tex. 579, both holding failure to sue out execution from
year to year is want of diligence; Deutsch ▼. Allen, 57 Tex. 90,
judgment lien lost in absence of excuse shown for want of greater
diligence; MaMerson v. Cundiff, 58 Tex. 475, scire facias may be
sued out on judgment which, although dormant, has lost its lien;
Harvey v. Edens, 69 Tex. 432, 6 S. W. 313, Wren v. Peel, 64 Tex.
380, both holding judgment lien may be lost for want of diligence;
Gruner v. Westin, 66 Tex. 217, 18 S. W. 514, purchaser of property^
09D NOTES ON TEXAS EEPOETS. 54 Tex. 244-264
chared with lien may plead its extinguishment when necessary;
Wylie ▼. Posey,' 71 Tex. 36, 9 S. W. 87, a break of twelve months
between executions abates lien; Clements v. Ewing, 71 Tex. 373,
9 S. W. 313, failure to use means given by law within proper time,
judgment lien is lost; Adams v. Crosby, 84 Tex. 101, 19 S. W. 356,
under act of 1842, executions should issue from term to term to
preserve judgment lien; Cooke v. Avery, 147 U. S. 388, 13 Sup. Ct,
Hep. 345, 37 L. 214, judgment lien does not survive unless execution
issue within a year of rendition of judgment.
54 Tex. 244-248, ABTO ▼. MAYDOLE.
Because a Town Lot is Used as an approach to mansion or for pur-
pose of ornamentation or pleasure does not devest it of the homestead
characteTi there being no distinction between the necessity and con-
venience.
Approved in Anderson v^ Sessions, 93 Tex. 282, 77 Am. St. Hep.
876, 51 S. W. 876, use of to^n lot to raise vegetables for family con-
sumption is sufficient to constitute part of homestead, although in
another part of town; and see note, 70 Am. Dec. 351.
54 Tex. 248-253, 8TEWABT ▼. KEMP.
Quaere, Whether Purchaser at Tax Sale, whose title is invalid but
who was ignorant thereof and could not by diligence have ascertained,
can have refunded taxes paid before tax deed is canceled.
Approved in Thompson v. Comstock, 59 Tex. 320, reaffirming rule;
House v. Stone, 64 Tex. 686, a void title cannot be basis for recovery
of improvements; McCormick v. Edwards, 69 Tex. 108, 6 S. W. 33,
purchaser at void tax sale cannot recover the taxes lawfully assessed.
54 Tex. 254-261, SAN ROMAN ▼. WATSON.
Absence of Sureties' Names in Bond of Appeal and failure of prin-
cipal to sign does not render bond invalid under act of 1876.
Approved in Houston etc. Ry. v. Lockhart (Tex. Civ.), 39 S. W.
321^, following rule; Weis v. Chipman, 3 Tex. Civ. 108, 22 S. W. 226,
names of sureties need not appear in body of bond; St. Louis Brewing
Assn. V. Hayes, 97 Fed. 861, failure of principal to sign bond does
not relieve sureties.
Application for Administration De Bonis Non is properly refused
sixteen years after probate of will, petition failing to show any debts
unpaid except one to contestant, the residuary legatee.
Approved in Strickland v. Sandmeyer, 21 Tex. Civ. 354, 52 S. W.
89, judgment reciting necessity for appointment of administrator de
bonis non not subject to collateral attack. See notes, 46 Am. Dec.
440; 108 Am. St. Rep. 417.
54 Tex. 261-264, TREVINO ▼. TREVINO.
Service had Under Act of 1875 in divorce proceedings, a judgment
thereunder not recognized by foreign government furnishes no rea-
son why Texas courts should not give relief on assuming jurisdiction.
Approved in Murphy v. Wallace, 3 Tex. Ap. Civ. 510, reaffirming
rule; Strauss v. Hernsheim, 3 Tex. Ap. Civ. 482, extraterritorial ser-
vice may be had where the action is in rem. See notes, 59 L. R. A.
167; 19 L. R. A. 818.
The Fact That Plaintiff was Seen to Enter a House of a woman and
remain two or three hours is not sufficient to support decree of di-
vorce for adultery.
54 Tex. 265-286 NOTES ON TEXAS EEPORTa 1000
Approved in Burnej v. Burney, 11 Tex. Civ. 175, 32 S. W. 328,
evidence arousing suspicion only is not sufficient to warrant decree
of divorce; Johnson v. Johnson (Tex. Civ.), 23 S. W. 1023, marriage
tie will not be rescinded on mere suspicion.
54 Tex. 265-272, DEAN ▼. LUl'KIN.
Under Oonstitation of 1876 the question of amount of tax levy to
pay pre-existing indebtedness was left to discretion of legislature
and county commissioners' court.
Approved in Davis v. Burney, 58 Tex. 369, court commissioner may
allow interest of a debt, payment of which has been postponed.
A Iievy in Excess of the Tax laimlt is illegal for any purpose, and
if illegal for one purpose the entire levy is illegal.
Approved in Dallas v. Ellison, 10 Tex. Civ. 42, 30 S. W. 1134, tax
can only be levied for purposes provided by law and in accordance
with law; Jefferson Iron Co. v. Hart, 18 Tex. Civ. 531, 45 S. W. 324,
additional tax levied for purpose of evading limitation is void.
Distinguished in Nalle v. Austin, 91 Tex. 426, 44 S. W. 67, where
tax is legal in part and illegal in part the tax will be apportioned.
The Specification of the Purpose of a tax is essential, and a speci-
fication showing an illegal purpose makes the tax invalid.
Approved in Alford v. Dallas (Tex. Civ.), 35 S. W. 819, a tax for
the purpose of reimbursing the city for moneys paid out of its gen-
eral fund is invalid.
64 Tex. 273-276, BURNETT ▼. WADDELIi.
Jurisdiction, Organization, and Procedure of supreme court are not
adapted to the introduction of original pleas therein.
Cited in 53 Am. Dec. 299, note.
Miscellaneous. — Cited in Eddy v. Bosley, 34 Tex. Civ. 120, 78 8. W.
567, defendant relieved from making allegation by fact that inter-
veners make it.
64 Tex. 280-281, OOIiGBADO 0OX7NTT ▼. DELANEY.
Appeal Bond Required by Article 1639, Revised Civil Statutes, need
only be executed in double the amount of the judgment, exclusive
of COfltS.
Approved in Yarbrough v. Collins (Tex. Civ.), 43 8. W. 1103, and
Yarbrough v. Collins, 91 Tex. 307, 308, 309, 42 S. W. 1053, 1054, re-
affirming rule; Ball v. Chase (Tex. Civ.), 49 S. W. 935, costs are not
included in the meaning of word "judgment."
Overruled in Owens v. Levy, 1 Tex. Ap. Civ. 178, the rule does not
apply where judgment is for coats only; Bell v. Brown, 11 Tex. Civ.
527, 33 S. W. 303, in appeal from justice court bond must be in double
amount of judgment, inclusive of costs.
64 Tex. 281-286, OREEN ▼. DAIJJIHAN.
Except in Case of Manifest Injustioe, assignments of errors which
are too general and indefinite will not be considered.
Approved in Barnard v. Tarleton, 57 Tex. 404, and Texas etc. By.
V. Kirk, 62 Tex. 233, both reaffirming rule; St. Louis etc. R. Co. v.
Dobie (Tex. Civ.), 75 8. W. 341, assignment that "trial court erred
in overruling defendant's motion for a new trial," too general; H. ft
T. C. By. V. McNamara, 59 Tex. 256, "finding of the jury is contrary
to law and contrary to and without evidence/' is too general; Hodde
1001 NOTES ON TEXAS EEPOETS. 54 Tex. 287-301
▼. Susan, 63 Tex. 311, an asBignment of error that conrt erred in
overmling motion for new trial is too general; Handel ▼. Kramer,
1 Tex. Ap. Civ. 473, question for determination must be specifically
pointed out in assignment; Waxahatchie Tap R. R. v. Alexander,
1 Tex. Ap. Civ. 685, assignment, when not specific, will be considered
aa waived; Hollman v. H. & T. G. R. R., 2 Posey U. C. 559, assign-
ment must point out special ground of objection; Hurlock v. Mc-
Lpin, 2 Posey U. 0. 740, vague assignment of error will not be con-
sidered.
Oral Agreement Between One Furnishing Materials and owner of
property to be improved, held original agreement and not within
statute of frauds.
See note, 15 L. R. A. (n. a.) 223.
54 Tez. 287-293, OALVESTON OAS CO. ▼. GAItVESTON 00.
Under Oonatitation of 1876, relating to duties of tax collector, a
tax sale of property constitutes a cloud on the title.
Reaffirmed in Galveston City Co. v. Galveston, 56 Tex. 492, and
Cassiano v. Ursuline Academy, 64 Tex. 676. See note, 45 Am. Dec.
161.
Taxes Paid Under Protest to prevent sale and cloud on title are
so far compulsory as to permit a recovery if sought within a reason-
able time.
Approved in Rumford Chemical Works v. Ray, 19 R. I. 459, 34 Atl.
815, reaffirming rule; Davie v. Galveston, 16 Tex. Civ. 17, 18, 41
S. W. 146, where there is neither mistake or fraud to entitle party
to recover taxes, the payment must be compulsory. See notes, 45
Am. Dec. 165; 78 Am. Dec. 538; 16 L. R. A. (n. a.) 687; 4 L. R. A.
303.
Distinguished in Manning v. Poling, 114 Iowa, 23, 83 N. W. 896,
denying recovery of money paid for redemption, where restraining
order would have protected poeeession.
A Refusal of Ooimty Oommlssioners' Oourt to refund does not bar
a recovery of taxes illegally paid under protest.
Approved in Galveston Co. v. Galveston Gas Co., 72 Tex. 514, 10
S. W. 584, there is no tribunal to determine who pays taxes on prop-
erty; San Antonio etc. Ry. v. San Antonio, 22 Tex. Civ. 343, 54 S. W.
909, county boards can only act on valuations.
54 Tez. 294-301, WOOTEBS ▼. INTEBNATIONAL B. B.
Plaintiff is not Compelled to Aver the nonhappening of a contingent
event upon which a contract is based; if defendant relies on it he
must so aver and prove.
Approved in Western Union Tel. Co. ▼. Piner, 9 Tex. Civ. 154, 29
8. W. 67, reaffirming rule; Hardy v. Kansas Mfg. Co. (Tex. Civ.),
18 S. W. 159, defendant must prove the contingency which would
discharge his liability.
Contract Beduced to Writing is presumed to embody the terms and
stipulations as agreed upon and mutually consented to.
Approved in International etc. R. R. v. Dawson, 62 Tex. 262, re-
affirming rule; Green v. Dallahan, 54 Tex. 286, parol evidence not
admissible to prove collateral agreement; Bruner ▼. Strong, 61 Tex.
557, conversation had before reduction to writing inadmissible to
prove construction; Faires v. Cockerill (Tex. Civ.), 29 S. W. 672,
evidence of purpose in signing a contract is not admissible; Jones v.
Perd Heim Brewing Co. (Tex. Civ.), 44 S. W. 898, evidence tending
54 Tex. 301-316 NOTES ON TEXAS BEPORTS. 1002
to vary terms of written contract is not admissible; Hubreclit ▼.
Powers, 1 Tex. Civ, 285, 21 8. W. 320, and Byars ▼. Byars, 11 Tex.
Ciy. 567, 32 S. W. 926, in absence of fraud parol evidence not admis-
sible; Wilks V. Georgia etc. B. B., 79 Ala. 185, plea of want of mutual-
ity comes too late in suit for specific performance.
Declaration, Bepresentation, and Opinion preceding but forming no
part of contract furnish no basis for action for damages to party de-
ceived or misled.
Approved in Foote v. Frost (Tex. Civ.), 39 S. W. 329, and Bruner
V. Strong, 61 Tex. 559, both reaffirming rule; Bowen v. Hatch (Tex.
Civ.), 34 S. W. 333, applying rule where ranch was falsely repre-
sented as well supplied' with water.
Miscellaneous. — Cited in Pittsburg etc. By. Co. v. Indianapolis etc.
Traction Co., 169 Ind. 638, 81 N. E. 488, as to meaning of word
''practicable" in statute providing for crossings above or below grade.
See note, 15 L. B. A. (n. s.) 595, as to validity of contracts to locate
railroad stations.
64 Tex. 301-306, MITCHEIJ. ▼. IBELAND.
SherliTB Deed, Describing Fractional Part of Tract as land of
owner in certain county between two towne, which tract is part of
certain grant, is void for vagueness.
Approved in Cusenbary v. Latimer, 28 Tex. Civ. 218, 67 S. W. 188,
memorandum insufficient to satisfy statute of frauds where land
simply described as belonging to defendant; Allday v. Whittier, 66
Tex. 671, 1 S. W. 795, land "close to and adjoining" is vague; Curdy
V. Staflford (Tex. Civ.), 27 S. W. 824, land described as part of a
bounty warrant is indefinite.
SberifTs Deed to Land Based on an execution sale made after return
day of execution is a nullity.
Approved in Snodgrass v. Rutherford (Tex. Civ.), 54 8. W. 1055,
and Terry v. Cutler, 4 Tex. Civ. 574, 23 S. W. 540, both reaffirming
rule; Haney v. Milliken, 2 Tex. Ap. Civ. 170, purchaser takes no
title thereuijider; and see notes, 76 Am. Dec. 83, 87.
Less Indulgence Should be Shown in favor of description in deeds
based on compulsory sales under judicial process than in deeds be-
tween private parties.
Approved in Thompson v. Jones (Tex. Sup.), 12 S. W. 79, and
Beagan v. Evans, 2 Tex. Civ. 40, 21 S. W. 429, both reaffirming rule;
Beze V. Calvert, 2 Tex. Civ. 209, see 20 S. W. 1133, patent ambiguity
cannot be aided by parol evidence.
54 Tex. 307-312, SHAW ▼. CADE.
Under Act Providing Change of Venue to be to nearest court-house
in adjoining county does not mean the nearest geometrically, but
the one most accessible and nearest by the usually traveled route.
Distinguished in Loonie v. Tillman, 3 Tex. Civ. 334, 22 S. W. 525,
nearest court does not mean the one most accessible or convenient.
A Change of Venae Being Ordered to another county, it is error for
that county court to hold that it has no jurisdiction.
Cited in 58 Am. Dec. 102, note.
54 Tex. 313-316, DEAN ▼. STATE.
Tax Collector Bidding in Property at tax sale for the state is not en-
titled to his commission and costs until land is redeemed.
1003 NOTES ON TEXAS EEPORTa 54 Tex. 317-346
Approved in Ramsey v. State, 78 Tex. 604, 14 S. W. 794, upon re-
demption the sheriff receives his costs when land bid in by state.
54 Tez. 317-318, McGtiniE ▼. NITWBILL.
Citation in Error must Show Date of Filing of the petition in error,
names of the parties, description of the judgment, and that the writ
of error and supersedeas have been granted.
Reaffirmed in Thompson v. Thompson (Tex. Civ.), 41 S. W. 680.
64 Tez. 324-330, MASTERSON ▼. ASHCOM.
Court Acquires Jurisdiction if the privilege of being sued elsewhere
is not pleaded in abatement.
Approved in Carson Bros. v. McCord-Collins Co. (Tex. Civ.), 84
S. W. 392, defendant making default in lower court cannot demand
privilege of being sued in county of residence; State v. Snyder, 66
Tex. 695, 18 S. W. 107, party may waive his right to have suit brought
elsewhere.
Quaere, Whether Betnm of Sheriff showing service can be im-
peached and by parol evidence show no service in fact.
Approved in Kempner v. Jordan, 7 Tex. Civ. 278, 279, 26 S. W. 871,
return of sheriff may be impeached without showing plaintiff had
any connection with it.
It must be Shown That a Meritoriooa and legal defense exists as
well as that judgment was obtained fraudulently.
Reaffirmed in Fox v. Robbins (Tex. Civ.), 62 S. W. 821. See notes,
54 Am. St. Rep. 222; 31 L. R. A. 209.
Miscellaneous.— Cited in Foust v. Warren (Tex. Civ.), 72 S. W. 407.
54 Tez. 330-346, STONE ▼. BROWK.
Stock Certificates Assigned in Blank for the purpose of securing a
debt is valid and ownership is in assignee until payment of debt.
Reaffirmed in Seeligson v. Brown, 61 Tex. 119.
Unlocated Land Oertiflcates are Personal Property, subject to verbal
sale and delivery.
Approved in Parker v. Spencer, 61 Tex. 164, reaffirming rule;
Hearne v. Gillett, 62 Tex. 25, unlocated land certificate is personalty;
New York etc. Land Co. v. Hyland, 8 Tex. Civ. 612, 28 S. W. 210,
purchaser of personal property can acquire only such title as his
vendee possesses; Stooksberry v. Swann, 12 Tex. Civ. 73, 34 S. W.
371, parol sale of unlocated land certificate is valid; Sewell v.
Laurence, 2 Posey U. C. 379, land certificates are personalty, and pass
by delivery; Miller v. Texas etc. Ry., 132 U. S. 684, 10 Sup. Ct. Rep.
213, 33 L. 497, land certificates pass by delivery.
The Constitution is Complied With if the title of the act gives
reasonable notice of the subject contained.
Approved in Galveston etc. Ry. v. Johnson (Tex. Civ.), 29 8. W.
429, and German Ins. Co. v. Luckett, 12 Tex. Civ. 142, 34 8. W.
174, both reaffirming rule; City of Oak Cliff v. State (Tex. Civ.),
77 S. W. 27, applying rule to act amending city charter so as to extend
city limits; Ex parte Herman, 45 Tex. Cr. 346, 77 S. W. 226, act
prohibiting poolselling not void because bookmaking not mentioned
in title; State v. Larkin, 41 Tex. Civ. 260, 90 S. 'W. 914, act pre-
scribing manner of filling vacancies may invalidate city charters
where vacancies not filled for ten years; Day Land etc. Co. v. State,
68 Tex. 543, 4 S. W. 872, act may have but one subject, but the ends
54 Tex. 346-361 NOTES ON TEXAS BEPOETS. 1004
reached through it may be many; Marsalis ▼. Creager, 2 Tex. Civ. 372,
21 S. W. 546, a provision that county courts shall file field-notev and
maps is embraced in act providing for boundaries of counties; Smith
V. Grayson Co., 18 Tex. Civ. 159, 44 S. W. 924, provision permitting
convict labor on road comes within the act creating a road system;
Fahey v. State, 27 Tex. Ap. 158, 11 Am. St. Eep. 184, 11 S. W. 109,
under constitution of 1876 an act may contain or contemplate more
than one object; Nichols v. State, 32 Tex. Cr. 404, 23 S. W. 682,
statute will be sustained if it comes under the general subject ex-
pressed in title; Abeel v. Clark, 84 Cal. 228, 24 Pac. 383, the con-
struction must be reasonable, and not technical and narrow; State
V. Hallock, 19 Nev. 388, 12 Pac. 834, where act provided for salaries of
several Ertate ofiicers, it contained more than one subject. See notes,
73 Am. Dec. 218; 64 Am. St. Bep. 103.
54 Tex. 346-350, OBABDOOK ▼. SCABBOBGUGH.
On Motion to Substitute Destroyed Jadgment of district court,
a£S.rmed by supreme court, it is error to substitute as to sureties on
appeal bond.
Beaffirmed in Phelan v. Wiley, 2 Tex. Ap. Civ. 645.
54 Tez. 351-356, MTTJiBTl ▼. OLElfENTS.
State OouTt Does not Lose Jurisdiction of defendant by adjudica-
tion in bankruptcy, and bankruptcy proceeding mu^t be regularly
brought to court's attention.
Beaffirmed in Levyson v. Harbert, 3 Tex. Ap. Civ. 262.
To Avail of a Discharge In Bankruptcy, it must be pleaded, and
will not invalidate a judgment rendered if not so pleaded.
Approved in Easley v. Bledsoe, 59 Tex. 489, discharge cannot be
pleaded in any other proceeding on the demand; Pinkard v. Willis,
24 Tex. Civ. 71, 57 S. W. 893, sureties bound, notwithstanding ad-
judication of bankrupt for principal.
In a Bond for Injunctlcm executed for a less amount than moneyed
judgment, on dissolution principal and sureties are liable for amount
covered by bond.
Cited in 58 Am. Dec. 99, note.
Execution Sale will not be Enjoined on ground that levying officer
styles himself a special deputy sheriff.
See note, 30 L. B. A. 140.
64 Tez. 356-361, 8IE8E ▼. MAIiSOH.
Where Appellant Assigns No Error of which he complains, only
those as appear from record that go to foundation of action will be
considered.
Approved in Searcy v. Grant, 90 Tex. 101, 37 S. W. 321, reaffirming
rule; Alamo Fire Ins. Co. v. Davis (Tex. Civ.), 45 S. W. 605, a judg-
ment not supported by a pleading will be reversed; and see note, 67
Am. Dec. 609.
Record Disclosing Scire Fadae has been served on parties, as being
heirs, does not bring them before the court| unless based on suggestion
of record of death.
Cited in 70 Am. Dec. 325, notei.
1005 NOTES ON TEXAS REPORTS. 54 Tex. 362-387
54 Tex. 362-366, DONNEBAUM ▼. TIKSLEY.
Pnrcliaaer's Title at Execution Sale does not depend on officer's
deed, but upon regularity of proceedings required by law of the
officers, prerequisite to a valid sale.
Approved in Stephens v. Turner, 9 Tex. Civ. 627, 29 S. W. 938,
and Logan v. Pierce, 66 Tex. 127, 18 S. W. 344, both holding a sale
under valid execution is good, even though description of land by
sheriff is insufficient; Oordray v. Neuhaus, 25 Tex. Civ. 251, 61 S.
W. 417, title of purchaser rests upon a valid judgment, levy, exe-
cution and payment of purchase money; Higgins v. Bordages (Tex.
Civ.), 28 S. W. 352, purchaser's deed at execution void for uncer-
tainty of description doesr not defeat his title; and see note, 84 Am.
Dec. 596.
Failure of Officer to Call on Defendant to point out property before
levy will not invalidate title of purchaser not connected with it.
Reaffirmed in Weaver v. Nugent, 72 Tex. 280, 13 Am. St. Rep. 799,
IQ S. W. 461.
54 Tex. 367-370, LEE ▼. PHELPS.
Under Act of 1876 to Fix Mechanic's Lien, a copy of bill of
particulars should be delivered to debtor, and in foreclosing the bur-
den of proving delivery is on party asserting claim.
Approved in Lee v. O'Brien, 54 Tex. 636, and Reese v. Corlew, 60
Tex. 72, both reaffirming rule; McCreary v. Waco Lodge, 2 Posey tJ.
C. 677, and Sedgwick v. Patterson, 2 Posey U. G. 353, both holding
atatute must be complied with in every particular to enforce lien;
Murphey v. Heidenheimer, 2 Poeey U. C. 723, burden of proof is on
party asserting claim.
54 Tex. 370-371, FIOELIK ▼. McOABTY.
No Executicm Luued Between April, 1876, and April, 1878, on judg-
ment rendered October, 1874, the judgment is not dormant, but lien
is lost.
Approved in Clements v. Ewing, 71 Tex. 373, 9 S. W. 313, and
Wren v. Peel, 64 Tex. 380, both holding want of diligence operates
a divestiture of judgment lien; Anthony v. Taylor, 68 Tex. 405, 4 S.
W. 532, failure to issue execution from year to year is want of
diligence; Wylie v. Posey, 71 Tex. 36, 9 S. W. 87, break of twelve
months between issuance of execution abates lien.
54 Tex. 372-374, ALLBBIGHT ▼. OOBLEY.
Where Witness Subpoenaed Pending Trial removes from county and
his deposition taken, if he moves back and attends trial he is entitled
to witness fees.
Cited in 62 Am. Dec. 521, note.
54 Tex. 374-387, BURNS ▼. LEDBETTEB.
An Appeal Bond Suspends Power to sell under judgment pending
appeal, and a purchaser pending appeal acquires no title.
Approved in Arnold v. Leatherwood, 2 Posey U. C. 244, sale under
certified bill of costs pending appeal is void.
The Thirteenth Legislature by Enactment provided for condemna-
tion and sale of land for delinquent taxes.
Cited approvingly in separate opinion of Cooley, C. J., in State
Tax Law Cases, 54 Mich. 447, see 23 N. W. 190, to the point that
54 Tex. 388-395 NOTES ON TEXAS EEPOETS. 1006
intervention of judiciary in tax proceedings is permitted in many
states, there being no decision in the ca8« because court being equally
divided. See note attached to caae collecting authorities on the
proposition.
When Judgment Valid, bnt Ezecntlon and sale invalid, purchaser
is entitled to hold until reimbursement, if he is not a party to judg-
ment, and money paid was applied to judgment.
Approved in Jones v. Smith, 55 Tex. 387, 388, cannot be disturbed
until repayment of purchase money if in possession; Bums v. Led-
better, 56 Tex. 282, purchaser only entitled to legal rate of interest;
Faires v. Cockerell, 88 Tex. 437, 31 S. W. 194, 28 L. R. A. 528, one
discharging vendor's lien gets no title, but may be subrogated; Texas
Elevator etc. Co. v. Mitchell, 7 Tex. Civ. 231, 28 S. W. 49, money
paid under mistake may be credited on judgment lien; and see note,
58 Am. Dec. 149.
Attorney for Plaintiff Becoming Purchaser at invalid execution sale
under valid judgment, and money paid liguidated but portion of debt,
cannot hold until reimbursement, but is subrogated to the lien for the
amount paid, less value of use and occupation.
Reaffirmed in House v. Robertson, 89 Tex. 688, 36 8. W. 253. See
notes, 99 Am. St. Rep. 489; 21 L. R. A. 48; 69 L. R. A. 43.
Tender to Purchaser at Tax Sale works redemption ipso facto.
Approved in Leet v. Armbruster, 143 Cal. 669, 77 Pac. 655, apply-
ing rule to tender to mortgagor after foreclosure; Bennett v. Southern
Pine Co., 123 6a. 622, 51 8. E. 655, one buying from purchaser at tax
sale not bona fide purchaser as to one who redeemed from sale without
taking conveyance.
Miscellaneous. — Lowell v. Ball, 58 Tex. 566, distinguished as not
being instance of practice contrary to the proposition that no appeal
lies from district court judgment rendered in accordance with su-
preme court mandate disposing of cause.
64 Tex. 388-396, 38 Am. Bep. 629, MTLIiIKEK ▼. CITY OOUNOIIa.
District Oourt has Original Jurisdiction to try the right to the
office of mayor of an incorporated city, unless right thereto was res
adjudicata by reason of aldermanic action, and can enforce judgment
by mandamus.
Approved in Riggins v. Thompson, 30 Tex. Civ. 243, 70 S. W. 578,
denying mayor injunction to prevent his removal by city council;
Terrell v. Greene, 88 Tex. 548, 81 S. W. 635, mandamus will issue
to put person holding uncontested title in possession; Metsker v.
Neally, 41 Kan. 125, 13 Am. St. Rep. 271, 21 Pac. 207, Conklin v.
Cunningham, 7 N. M. 480, 38 Pac. 180, and Johnson v. Galveston, 11
Tex. Civ. 472, 33 S. W. 151, where party illegally ousted from office,
remedy to restore is mandamus. See note, 19 L. R. A. (n. s.) 54, 55.
Ordinance Preventing Rental of Private Property to lewd women
is null and void, because in contravention of common right.
Approved in Mills v. Missouri etc. Ry., 94 Tex. 247, 59 S. W. 876,
55 L. R. A. 497, ordinances not expressly authorized must be reason-
I able and not against common right; Wice v. Chicago etc. Ry. Co., 193
\ 111. 356, 61 N. E. 1086, 56 L. R. A. 268, denying validity to ordinance
i making it unlawful to get on or off train in motion, without permis-
sion of person in charge; Buoll v. State, 45 Ark. 338, ordinance cannot
! be passed making it a misdemeanor for prostitute to reside or be
1007 NOTES ON TEXAS EEPORTS. 54 Tex. 395-408
found within corporate limits. See notes, 50 Am. Hep. 648; 78 Am.
St. Sep. 272; 88 Am. St. Rep. 348.
Distinguished in Houston etc. Ry. Co. v. City of Dallas, 98 Tex. 416,
84 S. W. 654, 70 L. B. A. 850, upholding ordinance compelling rail-
road to reduce crossings to grade.
64 Tez. 395-398, WOOTEB8 ▼. ASLEDGE.
A Sheriff's Deed is Void if the land is not specifically described.
Approved in Boyce v. Hornberger, 29 Tex. Civ. 340, 68 S. W. 703,
sale of debtor's right in two thousand three hundred acres bad when
he owned undivided half of three thousand acres; Donnebaum v.
Tinsley, 54 Tex. 365, a conveyance of undesignated part of a larger
tract by an officer is void for uncertainty; Allday v. Whitaker, 66
Tex. 671, 1 S. W. 795, "close to and adjoins*' is an insufficient de-
scription; Harris v. Shafer, 86 Tex. 316, 24 S. W. 980, "upper part of
said survey" is uncertain.
Authority of Officer in Execution Sales is limited, and land sold
must be sufficiently designated.
Approved in Morgan v. Smith, 70 Tex. 641, 8 S. W. 529, reaffirming
rule; Mitchell v. Ireland, 54 Tex. 306, less indulgence should be shown
to description in sheriff's deed on forced sale; Beze v. Calvert, 2
Tex, Civ. 209, see 20 S. W. 1133, stricter ruling used in compulsory
sales than in private sale; Logan v. Pierce, 2 Posey U. C. 288, no
indulgence in favor of sheriff's deeds; Gallagher v. Rahm (Tex. Civ.),
31 S. W. 328, description of land made by a receiver in a sale would not
be sufficient in a sheriff's deed; Curdy v. Stafford (Tex. Civ.), 27 S.
W. 824, and assignee's deed describing lands sold as part of a bounty
warrant is insufficient; Macmanus v. Orkney (Tex. Civ.), 39 S. W.
618, patent defects in the description in an administrator's deed can-
not be cured by extraneous evidence. See notes, 41 Am. Dec. 661;
76 Am. Dec. 57.
A Sale by an Officer of undesignated part of larger tract is void,
there being no means of distinguishing portion sold.
Approved in Edrington v. Hermann, 97 Tex./ 201, 77 S. W. 410
(affirming (Tex. Civ.) 74 S. W. 938), Smith v. Crosby, 86 Tex. 19, 40
Am. St. Rep. 821, 23 S. W. 11, and Bassett v. Sherrod, 13 Tex. Civ.
333, 35 S. W. 31G, all reaffirming rule. See note, 76 Am. Dec. 58.
54 Tex. 398-403, ABLEDOE ▼. TLML,
Holder of Notes Executed in Lien of other notes for purchase price,
which statute has run against, gets no such equity as would defeat
legal title of purchaser at execution sale.
Approved in Johnston v. Lasker Beal Estate Assn., 2 Tex. Civ. 498,
21 S. W. 962, junior encumbrancer may set up whatever defense the
maker of note might have; Flewellen v. Cochran, 19 Tex. Civ. 501,
48 S. W. 40, statute of limitation having run against the debt, the
vendor's lien is extinguished.
54 Tex. 403-408, McFABDIK ▼. PBESTON.
Parties are Chargeable With Notice of Materiality of each link in
chain of title, and in absence of due diligence trial will not be post-
poned to procure such testimony.
Approved in Poole v. Jackson, 66 Tex. 381, 1 S. W. 75, instance of
negligence and lack of diligence in crossing interrogatories.
54 Tex. 408-418 NOTES ON TEXAS EEPOBTS. 1008
Party Failing to Demand a Jury on day set for that purpose can-
not, as a matter of right, demand a jury trial.
Approved in Cruger v. McCracken (Tex. Civ.), 26 S- W. 283, follow-
ing rule; Doll v. Mundine, 7 Tex. Civ. 102, 26 S. W. 90, party not
demanding jury and juror's excuse, he cannot complain.
There must be Actnal Interest in the subject matter in litigation
to disqualify judge.
Approved in Nalle v. City of Austin, 41 Tex. Civ. 428, 93 S. W. 143,
judge, though taxpayer, not disqualified to sit in suit to restrain
collection of city taxes; Newcome v. Light, 58 Tex. 148, 44 Am. Bep.
609, judge disqualified for having been attorney for one of the parties
in a previous suit; Meyers v. Bloon, 20 Tex. Civ. 556, 50 S. W. 217,
judge not disqualified because he represented a party in a suit against
defendant on same subject matter; Medlin ▼. Taylor, 101 Ala. 242, 13
So. 311, adjudication of judge as to his own incompetency not con-
clusive; Tampa etc. Power Co. v. Tampa B. B., 30 Pla. 598, 11 So.
562, 17 L. B. A. 681, attorney for party disqualified to sit as judge.
Distinguished in Nalle v. Austin (Tex. Civ.), 21 S. W. 375, a judge
who is a resident taxpayer is disqualified to hear a suit brought to
restrain the collection of taxes.
64 Tex. 408-H118, OULLETT ▼. O'OONNOB.
Where, Subsequent to Filing of Disclaimer, the party so filing is
regarded by the court and parties as no longer a party, appellate
court will also regard case dismissed as to him, notwithstanding fail-
ure of record to show it in express terms and omission of formal
judgment therein.
Approved in Burrows ▼. Cox (Tex. Civ.), 38 S. W. 51, following
rule; Mills v. Paul (Tex. Civ.), 30 S. W. 244, and where court strikes
out intervention of a party, and states in the charge that he is not
held a proper party, it is a disposition as to him; Ellis v. Harrison
(Tex. Civ.), 52 S. W. 583, and refusal of court to allow new parties
to the record to be made parties to the suit is a final judgment; Smith
V. Wilson, 18 Tex. Civ. 27, 44 S. W. 557, and Wilson v. Smith, 17 Tex.
Civ. 194, 43 S. W. 1090, both holding failure to enter order of dis-
missal against party does not affect finality of judgment.
Distinguished in Mignon v. Brinson, 74 Tex. 19, 11 S. W. 904, where
interest of party plaintiff claiming life estate in partition is not
passed on, judgment is not final though such claimant after judgment
files assignment of interest to another party to record.
A Patent is Voidable When Issued in violation of constitution on a
junior location at instigation of party having prior equity.
Approved in League v. Began, 59 Tex. 430, reaffirming rule; Wither-
spoon V. Olcott, 119 Fed. 176, patent not void though based on survey
by surveyor outside his regular district; Davidson v. Senior, 3 Tex.
Civ. 550, 23 S. W. 25, and Decourt v. Sproul, 66 Tex. 371, 1 S. W.
338, both holding patent voidable only at suit of party interested in
prior equity; Dawson v. McLeary (Tex. Civ.), 25 S. W. 706, a patent
made on an irregular survey is not invalid to one having no right to
the land; Lubbock v. Binns, 20 Tex. Civ. 410, 50 S. W. 585, Wynne v.
Kennedy, 11 Tex. Civ. 698, 33 S. W. 300, Parker v. Walker, 15 Tex.
Civ. 371, 39 S. W. 612, and Tarlton v. Kirkpatrick, 1 Tex. Civ. 114,
21 S. W. 409^ all holding it voidable only when attacked by proper
parties.
1009 NOTES ON TEXAS EEPORTS. 64 Tex. 418-450
Patent Voidable When Issued on Junior Location in yiolation of
con»titiitioiL may be devested from patentee and vested in prior
equitable rights bat no one save party claiming under prior equity
can impeach patent issued.
Cited in 65 Am. Dec. 109, note.
OertificataB Until Location were Personalty, subject to transfer or
.sale by parol.
Approved in Fisher v. Ullman, 3 Tex. Civ. 325, 22 8. W. 524, pos-
session of^ blank indorsed land certificate is evidence of will.
Actual Occupancy for Qreat Length of Time is sufficient to warrant
presumption, if not absolute title, as against a stranger, that parties
were in possession by consent of owner.
Approved in Clark v. Smith, 59 Tex. 279, after lapse of time com-
pliance with statute will be presumed; Manchaca v. Field, 62 Tex.
141, instance where deed sustained after great lapse of time; Capp v.
Terry, 75 Tex. 401, 13 S. W. 56, witness conversant with history of
title will be permitted to narrate history, part of links being lost;
Hill V. Templeton (Tex. Civ.), 29 8. W. 537, long assertion of a claim
of ownership under a conveyance of a certificate will warrant a pre-
sumption of an assignment.
54 Tex. 4ia-420, CLAYTON ▼. PSESTON.
Judgment tendered After Death of One of the Parties can only be
regarded on appeal as void, when transcript does not show legal
representatives made parties below.
Cited in 50 Am. St. Bep. 742, note.
54 Tez. 420-450, GALVESTON ▼. HEABD.
In Absence of Charter or Leglslatiye Act requiring it, it is unneces-
sary that lot owner should have either actual or constructive notice
of construction of city sidewalk.
Reaffirmed in Adams v. Fisher, 63 Tex. 657.
City of Oalveeton has Pofwer to Construct Sidewalk on general
credit, but lot owner only liable for actual cost, which is the cash
value of bonds paid for the work.
Approved in Connor v. Paris, 87 Tex. 37, 27 S. W. 92, and Adams
V. Fisher, 63 Tex. 656, legislature has power to impose upon lot owner
burden of placing sidewalk; Jones v. Holzapfel, 11 Okl. 415, 68 Pac.
514, city may construct sewers by contract; Laporte v. Gamewell Fire
etc. Co., 146 Ind. 471, 58 Am. St. Bep. 363, 45 N. E. 590, 35 L. B. A.
686, municipal obligations payable out of particular fund not within
two per cent inhibition; Speer v. Mayor, 85 Qa. 65, 11 S. £. 807, 9 L.
B. A. 402, assessment for street improvements is constitutional. See
notes, 44 Am. St. Bep. 237; 4 L. B. A. (n. s.) 747.
Contract for a Sidewalk la a Matter Between the city and the con-
tractor, and an abuttee can only show that it is tainted with fraud.
Approved in Breath v. Galveston (Tex. Civ.), 46 S. W. 905, unneces-
sary to allege the method used in doing work authorized by the
council.
Limitations on City's Power to borrow money for general purposes
does not affect city's right to borrow for sidewalk improvements.
See note, 23 L. B. A. 403.
Assessment In Oalyeston for Sidewalk Improvement created no
personal liability, but was a charge against the lot, collectible by sale
thereof.
2 Tex. Notee— 64
54 Tex. 451-464 NOTES ON TEXAS REPOETS. 1010
Approved in Bonham v. Preston (Tex. Civ.), 23 S. W. 391, and
Lufkin V. Galveston, 58 Tex. 549, reaffirming rule; Bordages v. Hig-
gine, 1 Tex. Civ. 57, 20 8. W. 727, homestead subject to forced sale
for sidewalk assessment; Lufkin v. Galveston, 58 Tex. 550, homestead
liable to be sold for taxes.
Distinguished in Higgins v. Bordages, 88 Tex. 463, 53 Am. St. Bep.
776, 31 S. W. 54, homestead not liable on forced sale for city assess-
ments for local improvements; Lovenberg v. Galveston, 17 Tex. Civ.
166, 42 S. W. 1026, for street improvement there ia a personal liability.
See note, 35 L. B. A. 58.
Interest is Payable on Aasessment of Galvestosi fof sidewalk im-
provements under ordinance of 1874.
Approved in Cave v. Houston, 65 Tex. 622, and Western Union
Tel. Co. V. State, 55 Tex. 319, both holding interest recoverable if
provided for in statute; Heller v. Alvarado, 1 Tex. Civ. 411, 20 S. W.
1004, interest not recoverable.
The Credit of a City Being Such that a loss is caused in constructing
sidewalk within its limits on credit, the loss is no part of legitimate
cost of work.
Beaffirmed in Brooks v. State (Tex. Civ.), 58 S. W. 1035.
Paving Contract is not Invalid because cost assessed on each lot at
so much per square foot, though it would have been void if contract
had been to fill in sidewalk at uniform price per foot.
See note, 28 L. B. A. 498.
54 Tex. 451-454, TUBNIJSY ▼. TBXAS BANKING INS. CO.
Husband may Maintain Action, in his own name, to recover separate
property of wife.
Approved in Tinsley v. Dowell, 87 Tex. 25, 26 S. W. 948, agent
cannot bring suit in his own name except where by uses of trade he
is authorized to act as owner of the property; San Antonio etc. By.
V. Corley (Tex. Civ.), 26 S. W. 904, unnecessary to allege that injured
female was plaintiff's wife at time of accident.
54 Tex. 454-464, 38 Am. Bep. 631, PFEUFFEB ▼. HALTBY.
A Oliarge of the Oourt will not be Ckinsidered on appeal in absence
of statement of facts unless pleadings show error.
Approved in Lanier v. Ferryman, 59 Tex. 107, Endick v. Endick,
61 Tex. 560, Seay v. Diller (Tex. Sup.), 16 S. W. 643, and Searcy v.
Grant, 90 Tex. 101, 37 S. W. 321, all reaffirming rule.
Profits and Losses of an Illegal or Immoral Contract jnay be ad-
justed between the parties.
Approved in Patty v. City Bank, 15 Tex. Civ. 485, 41 S. W. 177,
Beed v. Brewer (Tex. Civ.), 36 S. W. 101, and Ferguson v. Dent, 24
Fed. 423, all reaffirming rule; Qverholt v. Burbridge, 28 Utah, 418,
79 Pac. 564, allowing seller to recover from bucket-shop difference in
market price of stock which latter had collected from buyer; Morgan
V. Morgan, 1 Tex. Civ. 319, 21 S. W. 156, party marrying when divorce
void is entitled to one-half community interest; By. Co. v. Fire Assn.,
60 Ark. 330, 30 S, W. 352, 28 L. B. A. 83, person destroying property
cannot set up defense that it was acquired illegally. See notes, 99
Am. St. Bep. 328; 23 L. B. A. (n. s.) 480; 3 L. B. A. 761.
Distinguished in Columbia Carriage Co. v. Hatch, 19 Tex. Civ.
124, 47 S. W. 291, notes for articles purchased under contract invalid
under anti-trust act are void, and will not support action; Willis v.
1011 NOTES ON TEXAS BEPOBTS. 54 Tex. 464-482
Korris, 63 Tex. 465, 51 Am. Bep. 659, contract tainted with fraud
cannot be enforced; Wegner v. Biering, 65 Tex. 511, illegal in part
vitiates whole contract.
Explained in Wiggins v. Bieso, 92 Tex. 223, 71 Am. St. Bep. 837,
47 S. W. 639, holding equity would not compel an accounting between
partners where the partnership was for purpose of violating the
anti-trust law of March 30, 1889, by forming a trust to increase the
price of beer.
54 Tex. 464-476^ DE BBUHL ▼. MAAS.
A Vondor'8 Lien is Neltlier Diminished nor affected by taking from
vendee, who has executed notes for purchase price, a deed of trust.
Approved in Jackson v. Ivory (Tex. Civ.), 30 S. W. 718, following
rule; Joiner v. Perkins, 59 Tex. 303, notes made payable to third
party do not extinguish lien; Meyer v. Smith, 3 Tex. Civ. 41, 21 S.
W. 996, vendor's lien attaches to land itself and follows into hands
of purchaser with notice; Taylor v. Fryar, 18 Tex. Civ. 271, 44 S. W.
185, vendor's lien not lost by levy of attachment.
Debt Being Extingisihed With PrivUege of Befnnding, there is a
conditional sale; if debt survives there is a mortgage, and in case of
doubt, equity will decree a mortgage.
Approved in Thompson v. Terry, 3 Tex. Ap. Civ. 48, reaffirming
rule; Pratt v. Godwin, 61 Tex. 333, money advanced as loan gives
character of mortgage; Jefferies v. Hartel (Tex. Civ.), 51 S. W. 655,
an instrument contemplating redemption is prima facie a mortgage;
and see notes, 50 Am. Dec. 197; 62 Am. Dec. 511.
Bight of Homestead Does not Attach until property paid for, and
husband may, with wife's consent renounce to holder of lien or
mortgage to him.
Approved in Morris v. Geisecke, 60 Tex. 635, Hicks v. Hicks (Tex.
Civ.), 26 S. W. 229, and Archenhold v. Evans, 11 Tex. Civ. 140, 32
S. W. 796, all reaffirming rule; Johnston v. Arrendale, 30 Tex. Civ.
508, 71 S. W. 47, defense of homestead not available against note
given to discharge vendor's lien, pay taxes and buy out co-owner;
CahUl V. Dickson (Tex. Civ.), 77 S. W. 289, plaintiff, concealing his
marriage, could not assert homestead against deed of trust given to
secure loan to pay off liens thereon; Baker v. Collins, 4 Tex. Civ.
524, 23 S. W. 495, and McCarty v. Brakenridge, 1 Tex. Civ. 180, 20
S. W. 1001, both holding husband can encumber homestead acquisi-
tion, and re-encumber so long as he does not defraud his wife; Taylor
V. Pendergast (Tex. Civ.), 29 S. W. 88, a debtor cannot homestead
machinery as between himself and creditor; Clitus v. Langford (Tex.
Civ.), 24 S. W. 326, homestead cannot prevail against the enforce-
ment of the payment of the purchase money. See note, 95 Am. St.
Bep. 931.
Aflsignee of Purchase Money Note takes right in vendor's lien.
See note, 13 L. B. A. 188.
Miscellaneous. — Cited in Mexican Nat. Coal etc. Co. v. Frank, 154
Fed. 231, power of attorney and letter inclosing same to be construed
together.
54 Tex. 476-482, TX7N8TALI. ▼. WOBMLET.
Bepeals of Statutes by Implication are not favored, but subsequent
statute revising subject matter of former must operate as a repeal.
64 Tex. 482-497 NOTES ON TEXAS EEPORTS. 1012
Approved in Dickinson v. State, 38 Tex. Or. 479, 41 S. W. 760,
and State v. Showers, 84 Kan. 272, 8 Pac. 477, both reaffirming rule;
Ex parte Vaccarezza, 52 Tex. Or. 313, 106 S. W. 393, new liquor law
operated to repeal license granted under old law. See note, 58 Am.
Dec. 102.
A Olmrcli ABSOciation Failing to Organize under act of 1874 re-
garding corporation cannot sue or hold real estate.
Approved in Methodist etc. Church South v. Clifton, 34 Tex. Civ.
252, 78 S. W. 734, unincorporated voluntary church association not
subject to ordinary judgment for debt; Frank v. Tatum, 87 Tex.
206, 25 S. W. 409, unless provided by statute, a corporation is not a
person, and must sue and be sued by its members; Burton y. Grand
Rapids etc. Furniture Co., 10 Tex. Civ. 271, 31 S. W. 92, unincor-
porated association cannot sue or be sued.
64 Tex. 482-487, STATB ▼. OOOEE.
Term of Incumbent in Office ceases upon election, failure to
qualify, resignation of newly elected officer, and appointment and
qualification of one to succeed.
Approved in Flatan v. State, 56 Tex. 105, reaffirming rule; State
V. Owens, 63 Tex. 271, in determining question of title to public
office quo warranto proceeding is proper; Bobinson v. State (Tex.
Civ.), 28 S. W. 567, commissioners can remove an officer who failed
to file his bond, and appoint another; Maddox v. York, 21 Tex. Civ.
624, 54 S. W. 25, and Maddox v. York, 93 Tex. 279, 55 S. W. 1134,
officer-elect dying before notice of election gives commissioners
power to appoint; Hamilton v. State, 40 Tex. Cr. 467, 51 S. W. 218,
a judge appointed to fill unexpired term is a de jure and de facto
officer until successor elected and qualified; State v. Murphy, 32
Fla. 156, 194, 13 So. 710, 722, where officers are appointed by the
governor with consent of senate, if senate adjourns without con-
senting to successor, they hold over until successor appointed by
governor; Hamilton v. State (Tex. Cr.), 51 S. W. 218, holding fail-
ure to elect an officer at a general election does not vacate the office
of an appointee.
54 Tex. 487-491, LEWI8 ▼. DENNia
Judgment of Foreclosure Sendeced Against Fropertsr in several
counties, it is proper practice to appoint commissioner to selL
Approved in Short v. Hepburn, 75 Fed. 115, sheriff's deed to prop-
erty partly within and partly without county is void as to part with-
out.
54 Tex 493-497, OAPLEN ▼. DBEW.
Merely Prior PoeseaBlon With Regular Olalm of title is soffieieat
to defeat rights of a trespasser.
Beaffirmed in Holman v. Herscher (Tex. Sup.), 16 S. W. 985.
Purchaser at Marshal's Sale is subrogated to the rights result-
ing from the possession of the premises by third party whose estate
he purchased.
Approved in Foster v. Johnson, 89 Tex. 647, 36 S. W. 70, reaffirming
rule; Boston v. McMenamy, 29 Tex. Civ. 275, 68 S. W, 203, mere
prior possession without proof of common source of title, sufficient;
Allen V. Long, 80 Tex. 268, 26 Am. St. Bep. 741, 16 S. W. 46, a tenant
in common, as stockholder, is not a trespasser; House v. Beavis^ 89
lOlS NOTES ON TEXAS BEPORTS. 64 Tex. 497-517
Tex. 630, 35 S. W. 1064, introduction of patent by state as showing
outstanding title not sufficient to defeat proof of former possession;
Watkins v. Smith, 91 Tex. 592, 45 S. W. 561, when entry without
actual force and under claim of title; CoUyns v. Cain, 9 Tex. Civ.
200, 28 S. W. 548, prior possession is sufficient to enable recovery
against mere trespasser; Boyd v. Miller, 22 Tex. Civ. 166, 54 S. W.
412, there must be complete chain of title connecting with possession.
54 Tex. 497-602, PEBEOOY ▼. KOTTWITZ.
The Homestead is the Place of Besldence, and does not include
convenient piece of adjoining land acquired subsequently.
Approved in Andrews v. Hagadon, 54 Tex. 576, renting of home-
stead for period. of twenty years devests it of homestead character.
Where Property Sabseqaently Acquires Homestead Character, lien,
thereon not affected.
See note, 95 Am. St. Bep. 932.
54 Tex. 50S-504, WAIJ>SOM ▼. ZAOHASIB.
Owner of Note Secured by Veador's Lien may recover the debt in
a proceeding in personam and maintain a second suit to foreclose
lien.
Approved in Zeigler v. Valley Coal Co., 150 Mich. 85, 113 N. W.
776, reaffirming rule; Marshall v. Marshall (Tex. Civ.), 42 S. W.
354, a lien is not lost by obtaining a judgment on the purchase
money note. See note, 73 Am. St. Bep. 507.
54 Tex. 605-610, T.RTVnvrRTi ▼. PAUSKA.
Upon Filing Mandate of Sapreme Court affirming judgment of dis-
trict court, no further order is required to authorize clerk to iseue
execution.
Beaffirmed in Holloway v. Mcllhenny, 77 Tex. 661, 14 S. W. 241.
An Executor Sned on a Moneyed Demand within twelve months
after probate of will is not required to plead until expiration of that
time.
Approved in Altgelt v. Sullivan ' (Tex. Civ.), 79 S. W. 339, waiver
where executor appeared and resisted motion to consolidate; Steven-
son V. Boberts, 25 Tex. Civ. 235, 64 S. W. 235, time to answer being
waived by executor ie binding.
54 Tex. 610-517, LOPEB ▼. B0BIN80N.
Party ia Liable for Injury sustained to party induced to enter into
a contract by making false representations intending to influence,
no matter how innocently made and honestly believed.
Beaffirmed in Byers Bros. v. Maxwell (Tex. Civ.), 73 S. W. 439,
McCord etc. Commerce Co. v. Levi, 21 Tex. Civ. Ill, 50 S. W. 607,
and Carter v. Cole (Tex. Civ.), 42 S. W. 369, and McCord-CoUins
Commerce Co. v. Levi (Tex. Civ.), 60 S. W. 607. See note, 35 L. B.
A. 430; 4 L. B. A. 747.
An Erroneous Instruction will not vitiate a judgment unless shown
to have produced actual or possible injury.
Approved in Blum v. Light, 81 Tex. 422, 16 S. W. 1093, Thornton
V Moody (Tex. Civ.), 24 S. W. 332, and Malloy v. Callahan, 2 Posey
U. C. 412, all reaffirming rule; San Antonio Gas Co. v. Robertson
(Tex. Civ.), 55 S. W. 347, appellate court will not reverse for an
erroneous instruction unless it is prejudicial.
54 Tex. 517-539 NOTES ON TEXAS EEPOBTS. 1014
64 Tez. 517-526^ GALVESTON ▼. LOONtB.
Oity Charter Which Prohibits Borrowing beyond a certain gum
for general parposes does not prohibit borrowing for constructing
sidewalkfl which was ultimately to be assessed against lots.
Approved in Lufkin v. Galveston, 58 Tex. 549, reaffirming rule;
Galveston v. Heard, 54 Tex. 431, 433, 449, city may construct side-
walks on its general credit, and lot owners are liable for actual costs;
Bolton V. San Antonio (Tex. Civ.), 21 S. W. 64, bonds issued for city
street and sidewalk improvements are valid; Nalle v. Austin (Tex.
Civ.), 21 S. W. 381, city is not limited in levying a tax for a special
purpose to the amounts required for general improvements. See note,
4 L. E. A. (n. s.) 747.
I«iiiiitation on a Conpon Attached to a Bond runs from date when
coupon becomes due and not from maturity of bond.
Approved in Adams v. Fisher, 63 Tex. 656, reaffirming rule; Mont-
gomery V. Orr, 27 Fed. 677, county may bond to build courthouse,
bonds payable when taxable value reaches required amount. See
note, 16 L. B. A. (n. s.) 805.
Distinguished in Bobertson v. Breedlove, 61 Tex. 325, an injunc-
tion will lie to prevent issuance of bond by a county; Waxahachie
V. Brown, 67 Tex. 529, 4 S. W. 210, town could bond for purpose of
acquiring school sites and erecting schoolhouse.
54 Tex. 527--635, HIGHIiAND ▼. GALVESTON.
Cost of GonBtruetlon and Improiring Sidewalks in city of Galves*
ton attaches to lot in possession of party having an interest, which
interest is subordinate to the charge, and may be defeated by sale to
collect debt.
Beaffirmed in Adams v. Fisher, 63 Tex. 656.
Duty of Improving Sidewalks in City of Galveston devolves on lot
owner, and when ordered by city ordinance the liability of the charge
on the lot attaches at passage of the ordinance.
Approved in Adams v. Fisher, 63 Tex. 657, resident is presumed
to have notice of passage of ordi^iance, and no other notice is neces-
sary.
Tenant cannot Recover Damages for abandonment of street im-
provement commenced by city and later abandoned, where improve-
ment is to be paid for by lot owners.
See notes, 28 L. B. A. 498; 21 L. B. A. 218.
54 Tex. 535-539, WHEELEB ▼. AHBENBEAK.
Judgment Bendered Against Besident Minor, who was not person-
ally served and had no general guardian, is voidable though repre-
sented by guardian ad litem.
Approved in Ellis v. Stewart (Tex. Civ.), 24 S. W, 587, and Jones
V. Parker, 67 Tex. 78, 3 S. W. 224, both reaffirming rule; Kremer v.
Haynie, 67 Tex. 451, 3 S. W. 677, court cannot appoint guardian ad
litem over minor over whom the court has not jurisdiction; and see
note, 89 Am. Dec. 188.
Judgment Against a Bfinor will be Beversed on appeal or error
when personal service has not been had; and acceptance of service
by minor is not such personal service as required by statute.
Approved in Alston v. Emmerson, 83 Tex. 237, 29 Am. St. Bep.
642, 18 S. W. 567, reaffirming rule; Carlton v. Miller, 2 Tex. Civ. 623,
624, 21 S. W. 698, judgment by default will not be sustained unless
1015 NOTES ON TEXAS EEPOBTS. 64 Tex. 540-570
personal service on minor defendants is shown by the record outside
of recital in judgment; Moore v. Prince, 5 Tex. Civ. 354, 23 S. W.
1114, there must be personal service of minors; and see note, 89 Am.
Dec. 186.
54 Ttox. 540^44, TENNEU. ▼. BBEEDLOVK
A Domestic Judgment of Court of Qeoeral Jnrisdlctioii is entitled
to absolute verity that in collateral action, record silent as to notici?,
there is a presumption of jurisdiction of the person so conclusive
that evidence aliunde will not be heard to contradict.
Approved in Collins v. Miller, 64 Tex. 120, Wilkerson v. Schoon-
maker, 77 Tex. 617, 19 Am. St. Rep. 806, 14 S. W. 224, First Nat.
Bank v. Ck>hen (Tex. Civ.), 55 S. W. 533, and Sneed v. Townsend, 2
Posey U. C. 351, all reaffirming rule.
54 T«x. 544--551, YOUKa ▼. O'NEAL.
A Surrey and Filing Is No Avail if filed while original settler has
a right to survey, but at expiration of time there is no necessity for
a resurvey.
Approved in Taylor v. Criswell, 4 Tex. Civ. 108, 23 S. W. 425,
patent issued when time had not expired to file survey good at ex-
piration.
64 Tex. 561--666, WOODSON ▼. ALLEN.
To Sustain a Plea of Five Yeaxs' Possession under a deed or deeds
duly registered, it is not essential that register clerk should have
copied correctly in every particular; reasonable notice only is re-
quired.
Approved in Brownson v. Scanlan, 59 Tex. 226, deed must be regis-
texed to charge party with its location; Taylor v. Brymer, 17 Tex.
Civ. 521, 42 S. W. 1001, possession, payment of taxes, and registra-
tion must be concurrent.
54 Tex. 556-563, HAMILTON ▼. G. H. ETC. BY.
A Boy must be Able to Comprehend the danger of the employment
after it is explained, to place him in position of an employee and
preclude recovery for. injuries from negligence of coemployees.
Approved in Lovell v. De Bardelaben Coal etc. Co., 90 Ala. 16, 7
So. 756, reaffirming rule; T. & P. Ry. v. Carlton, 60 Tex. 401, care
required increases in proportion according to want of capacity of
minor to compehend; Taylor v. Wootan, 1 Ind. Ap. 196, 50 Am. St.
Bep. 206, 27 N. E. 50^, if servant cannot comprehend the danger,
master is liable; Texas etc. By. v. Putnam (Tex. Civ.), 63 S. W. 910,
father assenting to contract, he may recover if company is negligent.
See note, 67 Am. Dec. 596.
54 Tex. 563^70, KAUFMAN ▼. BEASLEY.
Cotton Factors in Qalveston have no authority by law or usage to
deal with consigned cotton otherwise than by sale in Galveston for
cash, except under instructions from owner.
Approved in Wootters v. Kauffman, 67 Tex. 492, 3 S. W. 465, factor
cannot ship to foreign market without consent of consignor; Woot-
ters V. Kaufman, 73 Tex. 399, 11 S. W. 391, foreign consignee of fac-
tor liable for value to owner; and see note, 58 Am. Dec. 162.
Cotton Factor Having Cotton on Consignment cannot sell for credit,
pledge it for own use, or ship to a foreign market
64 Tex. 571-589 NOTES ON TEXAS BEPOBTS. lOlS
«
Approved in Burke v. Frye, 44 Neb. 227, 62 N. W. 478, and Pngh
T. Porter, 118 Cal. 633, 50 Pac. 774, in absence of instruction, the
residence of the factor is presumed to be the place of sale; and see
note, 58 Am. Dec. 163.
Persons Dealing With Factors are Chargeable with notice of power
and limitation, and on them is the burden of proving the power and
limitation as against owner of goods.
Approved in Wootters v. Kaufman, 73 Tex. 401, 11 S. W. 392,
reaffirming rule; Barnes Safe etc. Co. v. Block etc. Tobacco Co., 38
W. Va. 167, 45 Am. St. Bep. 852, 18 S. E. 485, 22 L. B. A. 850, party
dealing with notice is charged with notice of authority.
64 Tex. 671-e78, ANDBEWS ▼. HAGADON.
Homeetead may Oonslst of Bereral iKits, but it must be intended
and used aS such.
Approved in Harris v. Matthews, 36 Tex. Civ. 435, 81 S. W. 1205,
excluding land not used as such from urban homestead; Keith v.
Hyndman, 57 Tex. 430, there can usually be no pleading of homestead
rights; McDonald v. Clark (Tex. Sup.), 19 S. W. 1025, a rented house
within same indosure containing house which owner occupies as
homestead is not a part thereof; and see note, 70 Am. Dec. 351.
Children not Being Ctonstituents of the Family of their parents at
decease of latter are not entitled to homestead protection as such.
Approved in Munzenberger v. Boehme, 2 Posey U. C. 390, son not
considered head of family.
64 Tex. 678-^89, CHABDOOK ▼. GK>0DW1N.
Husband and Wife may Join as Plaintiffs in damage suit for
wrongful seizure by attachment of property exempt from forced sale.
Approved in Cunningham v. Coyle, 2 Tex. Ap. Civ. 373, reaffirm-
ing rule; Texas etc. By. v. Pollard, 2 Tex. Ap. Civ. 426, husband is
prQper plaintiff to recover for personal injuries to wife; Steel v.
Metcalf, 4 Tex. Civ. 314, 23 S. W. 475, on death of husband pending
suit it is not necessary to join children; Finegan v. Bead, 8 Tex. Civ.
36, 27 S. W. 263, parties having interest in subject matter of suit
are necessary parties; Texas etc. By. v. Fuller, 13 Tex. Civ. 155, 36
S. W. 320, wife alone may sue to recover community property where
she has been abandoned by husband.
Same Strict Boles of Pleading do not prevail in Texas in respect
to joinder of parties and causes of -action as in other states.
Beaffirmed in Morris v. Davis (Tex. Civ.), 31 S. W. 853; Wilson v.
Lowrie (Tex. Civ.), 40 S. W. 854. Approved ih St. Louis etc. By. Co.
V. Hengst, 36 Tex. Civ. 219, 81 8. W. 833, permitting joinder of action
for personal injuries of deceased with action for his wrongful death;
Moore v. Snowball, 98 Tex. 27, 107 Am. St. Bep. 596, 81 S. W. 10^
66 L. B. A. 734, arguendo.
Petition l8 not Bad for Multifariousness because it contains an
action for damages for maliciously suing out an attachment in justice
and district courts on same cause of action.
Approved in Mateer v. Cockrill, 18 Tex. Civ. 395, 45 S. W. 753,
co-obligors may be joined to enforce contributions jointly entered
into; Foy v. East Dallas Bank (Tex. Civ.), 28 S. W. 139, a stake-
holder can require claimants of the fund to interplead; Presnall v.
McLeary (Tex. Civ.), 50 S. W. 1067, an unliquidated demand cannot
be pleaded in setoff against a debt evidenced by promissory note.
1017 NOTES ON TEXAS REPORTS. 54 Tex. 589-593
Expenses and Loss of Time expended in defending a suit cannot
be considered as proof of injury in action for damages for wrong-
fully attaching property exempt by law.
Reaffirmed in Vance v. Lindsay^ 60 Tex. 291.
In Salt for Wrongful Attachment of Exempt Property, defendant
eannot set off debt upon which attachment was based.
Approved in dissenting opinion in Caldwell v. Ryan, 210 Mo.
39, 124 Am. St. Rep. 727, 108 8. W. 540, 16 L. R. A. (n. s.) 494,
majority holding that where plaintiff had judgment for conversion
of exempt property, and defendant had judgments against plaintiff,
executions thereon could be set off.
In Action for liaUdons Trespass to Personalty, the jury may con-
sider what is due to the public by inflicting payment of speculative,
vindictive, or exemplary damages, but in absence of malice and
intentional wrong the measure of damages is value of property with
interest.
Approved in Steel v. Metcalf, 4 Tex. Civ. 315, 23 S. W. 475, where
seizure was at a time when party was helpless without the prop-
erty, he is entitled to more than rental value of property; Endel v.
Norris, 15 Tex. Civ. 142, 39 S. W. 610, and Moore v. King, 4 Tex.
Civ. 401, 23 S. W. 485, value of use and hire from conversion to date
of judgment is the measure of damages; Hull v. Davidson, 6 Tex.
Civ. 590, 25 S. W. 1048, use and hire should not be computed by day
for a long period of time; Alderson v. Gulf etc. Ry. (Tex Civ.), 23
S. W. 618, plaintiff can obtain actual and exemplary damages where
defendant ratified its agent's willful act in withholding a bill of
lading; Compton v. Ashley (Tex. Civ.), 28 S. W. 224, plaintiff may
frame his petition with a double aspect and pray alternative relief;
Donahoo v. Scott (Tex. Civ.), 30 S. W. 385, plaintiff can recover for
loss of milk in suit to recover damages for wounding his cows;
Wilson V. Manning (Tex. Civ.), 35 S. W. 1080, damages vary with
the character of the property; Waller v. Hail (Tex. Civ.), 46 S. W.
82, parties deprived of the use of property may recover damages for
its use. See notes, 50 Am. Dec. 768; 58 Am. Dec. 128; 28 Am. St.
Rep. 880; 81 Am. Dec. 473.
54 Tex. 689^93, BOEHL ▼. WADOYMAB.
An Agreement In Writing to execute a mortgage or specific prop-
erty will be enforced in equity, but parol evidence will not be heard
to vary the agreement.
Approved in Poarch v. Duncan, 41 Tex. Civ. 276, 91 S. W. 1110,
equitable mortgage must be created in writing; Johnson v. Portwood,
89 Tex. 248, 34 S. W. 599, equitable mortgage must be created in
writing. See notes, 4 Am. St. Rep. 700; 6 L. R. A. (n. s.) 596; 6
L. R. A. 33.
No Resulting Trust Exists in favor of one paying purchase money
for land by way of loan to another, the conveyance being taken in
the name of the borrower.
Approved in Ruhl v. Kauffman, 65 Tex. 736, zn absence of agree-
ment for a lien, lender acquires none.
Resulting Trusts are not Created by Agreement; they arise from
the acts of the parties.
Approved in Caldwell v. Bryan, 20 Tex. Civ. 172, 49 S. W. 242,
reaffirming rule; Goodrich v. Hicks, 19 Tex. Civ. 530, 48 S. W. 799,
intention of parties must prevail; Hawley y. 6eer (Tex. Sup.), 17 S.
64 Tex. 593-623 NOTES ON TEXAS EEPOBTS. 1018
W. 915, one purchafling property and having the deed made ont in
the name of his son in law, who in turn executes a bond to convey
according to the purchaser's direction, is sufficient to establish a
resulting trust.
64 Tez. 69S-609, ADOTJE ▼. 8EELIOSON.
Transfer of Bill of Lading is equivalent to the actual delivery of
the property.
Approved in National Bank ▼. Citizens' Nat. Bank, 41 Tex. Civ.
538, 93 S. W. 210, where bills of lading exchanged for receipts of
cotton compress; Grayson etc. Nat. Bank v. Nashville etc. By. (Tex.
Civ.), 79 S. W. 1096, seller taking bill of lading in his own name
retains control of goods, though title has passed; Osborn ▼. Koenig-
heim, 57 Tex. 94, the transfer of a warehouse receipt, negotiable
in form, constitutes immediate delivery; Campbell v. Alford, 57 Tex.
163, delivery of bill of lading while goods in transit is a good de-
livery; Missouri etc. By. v. Heidenheimer, 82 Tex. 199, 27 Am. St.
Bep. 864, 17 S. W. 609, pledging of bill of lading gives pledgee same
rights as a buyer. See note, 18 L. B. A. 861.
The BeqoiBite for Delivery of Personalty is that it shall be no
longer subject, in fact or in law, to the possession or control of
pledgor, but to that of pledgee.
Approved in Garrity v. Thompson, 64 Tex. 599, mortgagee out of
possession cannot assert claim as against attaching creditor; White
V. Jacobs, 66 Tex. 464, 1 S. W. 345, ownership and possession of per-
sonalty must be in claimant when seized under process; Schneider
V. Leibes, 3 Tex. Ap. Civ. 351, after delivery by railroad right of
stoppage in transitu ceased; Tombler v. Palestine lee Co., 17 Tex.
Civ. 602, 43 S. W. 898, attachment lienholder has no higher rights
than pledgor.
Miscellaneous. — Texas etc. Coal Co. ▼. Lawson, 10 Tex. Civ. 499,
31 S. W. 847, cited to point that plaintiff cannot shift his position
from that of a lienholder to that of an owner on strength of defend-
ant's answer without special averments to that effect.
64 Tex. 609-616, WAI.KEB ▼. ABMSTBONG.
A Horserace is not Unlawfol, and a wager on one is recoverable.
Cited in Ex parte Powell, 43 Tex. Cr. 398, 66 S. W. 298, city can-
not prohibit poolselling on horseraces. See note, 37 Am. St. Bep. 702.
54 Tex. 615-623, S8 Am. Bep. 632, HOUSTON ETC. B. B. ▼.
SYMPKINS.
A Bailroad is Liable in Damages if its agents do not discover
a person lying insensible in open view, the failure to see the person
being the proximate cause of the injury.
Approved in Johnson v. Gulf etc. By., 2 Tex. Civ. 143, 21 S. W.
276, and St. Louis etc. By. v. Shifflet (Tex. Civ.), 56 S. W. 698, both
reaffirming rule; OUis v. Houston etc. By. Co., 31 Tex. Civ. 602, 73
S. W. 31, where children played in switch-yard with acquiescence
of employees, ordinary care should have been used to discover their
presence; Teakle v. San Pedro etc. B. Co., 32 Utah, 289, 90 Pac. 407,
10 L. B. A. (n. s.) 486, persons who are accustomed to walk along
railroad track in populous city are licensees; Shanks v. Springfield
Traction Co., 101 Mo. Ap. 707, 74 S. W. 387, question for jury
whether motorman was guilty of negligence in running over deaf
1019 NOTES ON TEXAS REPOBTS. 54 Tex. 615-623
person walking on track; Texas etc. By. v. Barfield (Tex. Sup.), 3
S. W. 666, company is not liable where the exercise of the highest
degree of care could not have saved the deceased. See notes, 90
Am. Dec. 783; 38 Am. Bep. 72; 25 Am. St. Bep. 44; 25 L. B. A. 289;
7 L. B. A. (n. B.) 133; 55 L. B. A. 423, 430.
Qualified in Galveston etc. By. Co. v. Byon, 70 Tex. 58, 61 S. W.
689, 691, holding railroad not liable for injufy to trespasser stand-
ing on track though train crew failed to exercise lookout.
A Bailroad Company is Uable in Damages even to a trespasser if
it f ail0 to use due diligence.
Approved in Texas etc. By. ▼. Watkins, 88 Tex. 24, 29 S. W. 233,
I, & G. N. B. ▼. Jordan, 1 Tex. Ap. Civ. 498, and St. Louis etc. By.
▼. Sharp, 3 Tex. Ap. Civ. 396, all reaffirming rule; H. & T. C. By.
V. Bichards, 59 Tex. 377, party aware of danger and contributing
toward it can recover if injury willful; I. & G. N. B. B. ▼. Cocke,
64 Tex. 158, recovery may be had for stock killed if company does
not use care after discovery of danger; Gulf etc. By. v. Shields, 9
Tex. Civ. 656, 28 S. W. 710, railroad companies are bound to use
ordinary diligence even as to a trespasser. See notes, 84 Am. Dee.
460; 69 L. B. A. 547.
Denied in Ward ▼. Southern Pac. Co., 25 Or. 445, 36 Pac. 170, 23
L. B. A. 715, company owes no legal duty to guard trespasser against
danger.
A Reasonable Iiookoat Varying According to circumstances and
danger is a duty devolving upon those in charge of a train.
Approved in St. Louis etc. By. Co. v. Jacobson, 28 Tex. Civ. 154,
66 S. W. 1113, Kuehn v. Missouri etc. By., 10 Tex. Civ. 651, 32 S.
W. 89, Yoakum v. Mettasch (Tex. Civ.), 26 S. W. 130, Douglas v.
Central Texas etc. By. (Tex. Civ.), 26 S. W. 893, and Troy v. Cape
Fear etc. B. B., 99 N. C. 307, 6 Am. St. Bep. 528, 6 S. E. 81, all
reaffirming rule; Missouri etc. By. Co. v. Hammer, 34 Tex. Civ. 355,
356, 357, 78 S. W. 709, 710, duty exists as to infant of tender years;
Shoemaker v. Texas etc. By. Co., 29 Tex. Civ. 580, 69 S. W. 991,
wh^re point had been traversed by people day and night for years,
duty existed, especially when train was making unusual speed; T.
& P. By. V. Chapman, 57 Tex. 82, it is proper to submit to jury
question whether proper watchfulness was had at public cros9way;
International etc. By. v. McDonald, 75 Tex. 47, 12 S. W. 862, it is
for the jury to say whether engineer used proper diligence; Mis-
souri etc. By. V. Belew, 22 Tex. Civ. 266, 54 S. W. 1080, and Shiffiet
v. St. Louis etc. By., 18 Tex. Civ. 61, 44 S. W. 921, engineers must use
diligence at a crossing established by custom. See notes, 71 Am. Dec.
89; 72 Am. Dec. 228; 36 Am. St. Bep. 848.
Bailroad Companies are Bound to Use Due Diligence in the exercise
of their business, and are liable even. to a trespasser who has not
been guilty of contributory negligence.
Approved in Artusy v. Missouri etc. By., 73 Tex. 195, 11 S. W. 178,
Houston etc. By. v. Smith, 77 Tex. 181, 13 S. W. 973, San Antonio
etc. By. T. Vaughn, 5 Tex. Civ. 200, 23 S. W. 748, International etc.
B. B. ▼. Tabor, 12 Tex. Civ. 290, 33 S. W. 896, and Smith v. Norfolk
etc. B. B., 114 N. C. 738, 748, 19 S. E. 865, 868, 25 L. B. A. 287, all
reaffirming rule; T. & P. By. v. O'Donnell, 58 Tex. 42, company bound
to use more than ordinary care; St. Louis etc. By. Co. v. Bolton,
36 Tex. Civ. 92, 81 S. W. 126, child not guilty of contributory negli-
gence in going on railroad trestle; Gulf etc. By. v. Keith, 74 Tex.
54 Tex. 615-623 NOTES ON TEXAS BEPOBTS. 1020
290y 11 S. W. 1118, company not liable if diligence to prevent is need
after discovery; Martin v. Texas etc. By., 87 Tex. 123, 26 S. W.
1055, the rule applies to those cases in which the danger is known
and imminent; Gulf etc. By. t. Shieder, 88 Tex. 163, 30 S. W. 905,
28 L. B. A. 538, burden of proof is on defendant to show himself
free from negligence when law of case establishes negligence;
Bozwadofskie ▼. International etc. By., 1 Tex. Civ. 493, 20 8. W. 874,
when plaintiff is drunk and asleep on track, company must still use
due diligence; Texas etc. By. v. Boberts, 2 Tex. Civ. 114, 20 S. W.
962, trespasser cannot recover if his dangerous position is not dis-
covered in time to avoid injury; Galveston etc. By. v. Lewis, 5 Tex.
Civ. 642, 25 S. W. 294, no recovery in absence of willful act of the
company; Jones ▼. Probasco, 18 Tex. Civ. 701, 45 8. W. 1037, if
railroad is negligent after discovery of person, he may recover, al-
though originally guilty of contributory negligence; Texas etc. By.
V. Black, 23 Tex. Civ. 126, 57 S. W. 334, the fact that a party is a
trespasser raises presumption that he is guilty of contributory negli-
gence, and he must set up some fact rebutting that presumption;
Memphis etc. B. B. ▼. Womack, 84 Ala. 152, 4 So. 620, failure of com-
pany to perform duty subsequently arising permits plaintiff to re-
cover though a trespasser; Columbus etc. By. v. Wood, 86 Ala. 166,
5 So. 464, intoxication does not affect principle unless it is shown
that company had knowledge of the fact; Ward v. Southern Pacific
Co., 25 Or. 438, 36 Pac. 167, 23 L. B. A. 715, failure to use due care
will render company liable even to trespasser; Herrick v. Wixom,
121 Mich. 388, 80 N. W. 118, duty of reasonable care is due even to
trespassers when their presence is known; Missouri etc. By. v. Peay,
7 Tex. Civ. 402, 26 S. W. 769, driver of a carriage which has been
in a collision is not guilty of contributory negligence if he allows
it to remain where defendant's employees have placed it. See notes.
51 Am. Dec. 398; 55 Am. Dec. 674; 4 Am. St. Bep. 239; 18 Am. St.
Bep. 529.
A Person Btrnck by a Train "While Lying Dnink on a railtoad track
is guilty of contributory negligence, and cannot recover damages
unless the injury was wantonly inflicted.
Approved in Chicago etc. By. Co. t. Martin, 35 Tex. Civ. 187, 79
S. W. 1102, riding on freight train, in violation of rule of company
though with permission of conductor, contributory negligence; Mis-
souri etc. By. V. Evans, 71 Tex. 368, 9 S. W. 328, I L. B. A. 476,
voluntary intoxication no plea of justification; Wilcox v. San Antonio
etc. By., 11 Tex. Civ. 491, 33 S. W. 381, person riding on foot-board
of engine is guilty of contributory negligence; Davis v. Chicago etc.
By., 58 Wis. 662, 46 Am. Bep. 679, 17 N. W. 414, person using cross-
ing established by usage becomes a licensee and is not guilty of con-
tributory negligence. See notes, 7 L. B. A. (n. s.) 133; 40 L. B. A.
133; 25 L. B. A. 289.
Denied in St. Louis etc. By. v. Shiflet, 94 Tex. 140, 58 S. W. 948,
where party is conscious of the danger.
Whether Intozieation of Person injured on railroad track was such
as contributed to injury is for jury.
See note, 40 L. B. A. 141.
Miscellaneous. — Cited in Batteree t. Galveston etc. By. Co., 36 Tex.
Civ. 199, 81 S. W. 568, holding cited case inapplicabls in definition
of contributory negligence.
1021 NOTES ON TEXAS BEPOBTS. 64 Tex. 623-649
54 Tex. 623-633, ABBSENDIAZ v. 8TIIXMAN.
An Action may l}e Maintained either where the injury is sustained
or the act committed.
Approved in London v. Miller, 19 Tex. Civ. 451, 47 S. W. 737^
where the action was for the conversion of mortgaged property;
Wilson V. Pecos' etc. By., 23 Tex. Civ. 709, 58 8. W. 185, applying
principle where fire caused by sparks from an engine spread into
adjoining counties; Manville v. Worcester, 138 Mass. 90, 91, 52 Am.
Bep. 262, 263, applying principle where course of water is diverged
from one side of stream to another. See note, 49 Am. Dee. 477.
Distinguished in Morris v. Missouri etc. By., 78 Tex. 20, 21, 22
Am. St. Bep. 19, 20, 14 S. W. 229, 230, 9 L. B. A. 349, where the
parties are nonresidents and cause of action originated beyond limits
of the state.
64 Tex. 635-636, LEE ▼. (VBBIEN.
To Establiflb a Mechanic's Lien it must be proven that the bill of
particulars was recorded and a copy served on party owing debt.
Approved in Murphey v. Heidenheimer, 2 Posey, 723, following
rule; Beese v. Corlew, 60 Tex. 72, burden of proof is on party seek-
ing a foreclosure of lien; Warner etc. Mfg. Co. v. Houston (Tex. Civ.),
28 S. W. 407, to fix a lien the statute must be substantially complied
with.
64 Tex. 636-640, JENKINS v. VOLZ.
A Homestead is Protected from Forced Sale, even though it is situ-
ate on land claimant owns but an undivided interest.
Cited in Oriflin v. Harris, 39 Tex. Civ. 590, 88 S. W. 495, reaffirm-
ing rule; Grace v. Grace, 96 Minn. 295, 113 Am. St. .Bep. 625, 104
N. W. 970, 4 I». B. A. (n. s.) 786, wife receiving undivided half in-
terest in homestead cannot, upon separating from husband, compel
partition. See note, 63 Am. Dec. 124.
Failure of One Asserting Homestead to designate boundaries can-
not authorize a forced sale.
Approved in Luhn v. Stone, 65 Tex. 441, instance where contiguous
land may be included in homestead.
Upon a Homestead Jointly Owned being partitioned, the constitu-
tional protection attaches to and protects the proceeds of sale in
partition.
Approved in Brown v. McLennan, 60 Tex. 44, Lewis v. Sellick, 69
Tex. 382, 7 S. W. 676, both reaffirming rule; Lewis v. Sellick, 69 Tex.
383, 7 S. W. 677, where improvements are made jointly upon parti-
tion, the improvements attach to the homestead and the other co-
tenant is entitled to be paid amount expended.
54 Tex. 641-649, HOUSTON ETC. E. E. ▼. 8HAFEE.
A Plea That a Person waa Suffering, and by reason of company's
negligence his suffering had been aggravated, will support a recovery
for special damages.
Approved in Bacon ▼. Pullman Co., 159 Fed. 6, sleeping-car com-
pany liable for physical suffering caused by theft of medicines by por-
ter; Gulf etc. By. v. Brown, 16 Tex. Civ. 104, 40 S. W. 615, a charge
that party previously suffering may recover for additional suffering
is good; Mitchell v. Western Union Tel. Co., 5 Tex. Civ. 530, 24 8.
W. 552, simple allegation of fact stating cause of action is sufficient;
54 Tex. 641-649 NOTES ON TEXAS BEPOBTS. 1022
Boss V. Fitch, 58 Tex. 151, in aetion for slander, faets constituting
damages need not be alleged.
An Assignment of Error Embracing in general all the charges
given by the court is too general, and will not be considered.
Approved in HoUman v. H. & T. C. B. B., 2 Posey U. C. 559, re-
affirming rule; St. Louis etc. B. Co. v. Dobie (Tex. Civ.), 75 S. W.
341, assignment that "trial court erred in overruling defendant's mo-
tion for new trial/' too general; Tudor ▼. Hodges, 71 Tex. 395, 9
S. W. 444, and H. & T. C. By. v. McNamara, 59 Tex. 256, both hold-
ing assignment that court erred in instructions to jury and verdict
is contra to evidence and law is too general; Texas etc. By. v. Kirk,
62 Tex. 233, in absence of error going to foundation of action, a gen-
eral assignment will not be considered; Hodde v. Susan, 63 Tex. 311,
an assignment that the court erred in overruling motion for new
trial is too general; Toe v. Montgomery, 68 Tex. 342, 4 S. W. 624,
an assignment that verdict is not supported by the evidence will
not be considered; Handel ▼. Kramer, 1 Tex. Ap. Civ. 473, assign-
ment of error must be specific; Hurlock v. McLain, 2 Posey U. C.
740, assignment of error, when vague, will not be considered.
Declarations and Expressions of a Party Injured by wrongful and
neglectful management of a train are admissible as part of the res
gestae.
Approved in Texas etc. By. v. Barron, 78 Tex. 424, 14 S. W. 698,
Wheeler v. Tyler etc. By., 91 Tex. 359, 43 S. W. 876, and Missouri
etc. By. V. Sanders, 12 Tex. Civ. 10, 33 S. W. 247, all reaffirming rule;
International etc. B. Co. v. Cain, 35 Tex. Civ. 540, 80 S. W. 572, ad-
mitting complaints of suffering in back; Texas Cent. B. Co. v. Powell,
38 Tex. Civ. 161, 86 S. W. 22, admitting declarations made at place
and within five minutes of injury and also complaints of present suf-
fering, though not in part injured; St. Louis etc. By. v. Martin, 26
Tex. Civ. 233, 63 S. W. 1090, evidence of declaration of the plaintiff
at the time is admissible. See notes, 95 Am. Dec. 67; 19 L. B. A. 749.
Miscellaneous. — Cited in Houston etc. B. Co. v. Gee, 27 Tex. Civ.
415, 416, 66 S. W. 79, holding it error to read opinion in cited case to
jury.
NOTES
ON THE
TEXAS REPOETS
GASES IN 55 TEXAS.
55 Tex. 1-16, BBYAN ▼. GBUBfP.
Location and Patent of Land ^'titled" under act of February 5«
1850, ib null and void.
Approved in Atkineon v. Ward, 61 Tex. 388, reaffirming rule; Win-
8or V. O'Connor, 69 Tex. 577, 8 S. W. 522, applying same rule of con-
struction to act of March 2, 1807.
Purchaser Chargeable With Notice of recitals in deed and patent
under which he claims.
Approved in O'Mahoney v. Flanagan, 34 Tex. Civ. 246, 78 8. W. 246,
and Slaughter v. Mallet Land etc. Co., 141 Fed. 293, both reaffirming
rule.
55 Tex. 17-33, HANBICK ▼. JACKSON.
A Title is not Void Because the Testimonio of the concession does
not appear in the expediente extending the title.
Approved in Houston v. Blythe, 60 Tex. 514, Harrick v. Dodd, 62
Tex. 85, Wright v. Nelson (Tex. Civ.), 46 8. W. 262, and Gonzales v.
Ross, 120 U. 8. 623, 7 8up. Ct. Bep. 714, 30 L. 808, all reaffirming rule;
Clark V. Smith, 59 Tex. 279, where recitals in unconditional certificate
in 1858 showed proper issuance, it will be presumed that patent issued
in 1874 was properly granted, although conditional certificate was not
in commissioner's office at its issue; Burkett v. Scarborough, 59 Tex.
498, holding issue of the grant precludes inquiry as to quaUfieations
of the applicant.
Where Grantee's Name Appears from Papers constituting an ex-
pediente of title, the name of another party in the granting clause
will be regarded as a mistake.
Approved in Hanrick v. Cavanaugh, 60 Tex. 16, Howell ▼. Hanrick,
88 Tex. 393, 29 8. W. 765, both reaffirming rule.
Where Two Grants were Made to Same Party, but possession taken
only under second, validity of second grant, after unquestioned posses-
sion of thirty years, cannot be raised by parties having no pre-existing
equity.
Distinguished in Hanrick v. Cavanaugh, 60 Tex. 22, holding the
forgery of a grant may be shown by one against whom it is sought
(1023)
55 Tex. 33-58 NOTES ON TEXAS EEPOETS. 1024
to be used; Dawson ▼. McLeary (Tex. Civ.), 25 S. W. 706, state can
question a survey made for the benefit of state school fund which is
not contiguous to those made for the owners of the certificate, al-
though a third person cannot.
Want of Power of an Officer to make a grant may be shown to in-
validate it.
Approved in Howell v. Hanrick, 88 Tex. 395, 397, 411, 29 S. W.
765, 766, 31 S. W. 612, and Howell v. Hanriek (Tex. Civ.), 24 S. W.
828, 829, both reaffirming rule.
It Seems That in Trespass to Try Title the nullity of plaintiff's
title may be shown by defendant having good title, notwithstanding
it was acquired subsequently to the void title.
Approved in Stell v. Lewis, 2 Posey U. C. 533, fact that one pur-
chase money note matures before others gives it no priority.
55 Tex. 83-40, FOOEE ▼. WEISHUHU.
Third Party Advancing Money to Pay Claim secured by trust deed
under agreement to have trust deed transferred to him is subrogated,
although accepting new note reciting security under the trust deed.
Approved in Bachal v. Smith, 101 Fed. 166, one who loans money
to satisfy senior mortgage and makes the payment, taking new mort-
gage on the property, is subrogated as against junior lien arising
before the transaction.
55 Tex. 4&-49, SAUNDERS ▼. SILVEY.
One TaJcing Color of Title from one whom he knows has bo right
to make it, cans at use it as basis for adverse possession.
See note, 88 Am. St. Bep. 717.
65 Tex. 49^3, ASHE ▼. HABBI8 COUNTT.
County Warrants Issued by County Commissioner's Court* silent as
to interest and time of payment, do not bear interest.
Approved in National Bank of Jacksonville v. Duval Co., 45 Fla.
499, 34 So. 895, holding void contract of county commissioners to pay
such interest. See note, 17 L. B. A. (n. s.) 553.
Distinguished in San Patricio Co. v. McClane, 58 Tex. 244, where
the warrants expressly provided for payment of interest.
55 Tex. 63-^8, DE GABCA ▼. GALVAN.
Snbsequent Creditor cannot Question Validity of conveyance from
husband to wife. ,
Approved in Claybrooks v. Kelly, 61 Tex. 637, Lewis v. Simon, 72
Tex. 475, 10 S. W. 555, B. C. Evans Co. v. Guipel (Tex. Civ.), 35
S. W. 941, Texarkana Nat. Bank v. Hall (Tex. Civ.), 30 S. W. 75,
Monday v. Vance (Tex. Civ.), 51 S. W. 348, and Swearing v. Beed,
2 Tex. Civ. 336, 21 S. W. 384, all reaffirming rule; Hutchison v.
McCord-Collins etc. Co. (Tex. Civ.), 46 S. W. 657, the statute as
to fraudulent conveyances only applies to creditors; Bives v. Stephens
(Tex. Civ.), 28 S. W. 708, a subsequent creditor cannot set aside a
conveyance on ground of fraud to creditors; Kahn v. Kahn, 94 Tex.
118, 58 S. W. 826, recital in deed to wife that conveyance is to her
separate estate makes it prima facie so. See notes, 90 Am. Dec. 298;
14 Am. St. Rep. 751; 69 L. B. A. 356.
Distinguished in Cole v. Terrell, 71 Tex. 556, 9 S. W. 671, where
party who was unlawfully cutting timber was shown to have eon-
1025 (UrOTES ON TEXAS EEPOETS. 65 Tex. 58-84
templated eoDtinaance of such unlawful acts and conveyed to avoid
future liability.
Declarations of Husband Bnbseqoent to execution of his deed
to his wife are not admissible to impeach the conveyance in suit
against the wife.
Approved in Evans v. Purinton, 12 Tex. Civ. 162, 34 S. W. 351, re-
affirming rule. See note, 86 Am. Dec. 641, 642.
From 1870 to 1876, the Increase of wife's separate property re-
mained her separate property.
See note, 86 Am. Dec. 633.
55 Tex. 58-64, GAMEBON ▼. FAT.
Insurance Money for Loss of Homestead is not subject to garnish-
ment for unsatisfied mechanic's lien at time of fire.
Approved in Continental Ins. Co. v. Clare (Tex. Civ.), 33 S. W. 604,
Whiteselle v. Jones (Tex. Civ.), 39 S. W. 405, both reaffirming rule;
Swayne v. Chas^ (Tex. Civ.), 29 S. W. 419, 421, 422, 423, money re-
ceived from insurance upon a homestead is exempt for a reasonable
amount; Parks v. Connecticut Fire Ins. Co., 26 Mo. Ap. 528, holding
owner may transfer his policy of insurance on homestead property.
Criticised in Chase v. Swayne, 88 Tex. 223, 224, 225, 53 Am. St.
Bep. 746, 747, 748, 30 S. W. 1051, 1052, criticising inconsistency of
the rule, but making no different rule; Seville v. Boyd, 16 Tex. Civ.
494, 41 S. W. 672, arguendo in subrogation case of surety and prin-
cipal of note.
Insurance Money on Homestead is not subject to payment of debts
of general creditor for a reasonable time.
Approved in Porter v. Porter, 2 T^x. Ap. Civ. 383, Jones v. White-
selle (Tex. Civ.), 29 S. W. 178, Wright v. Brooks, 101 Tenn. 605, 49
S. W. 829, and Puget Sound etc. Packing Co. v. Jeffs, 11 Wash. 472,
48 Am. St. Bep. 889, 39 Pac. 964, 27 L. B. A. 808, all reaffirming rule;
Hunter v. Wooldert, 55 Tex. 436, holding mortgagor entitled to over-
plus from sale of mortgaged homestead over debt and not subject
to another unsecured debt to mortgagee; Schneider v. Bray, 59 Tex.
672, old homestead may be exchanged for new one; Chase v. Swayne,
88 Tex. 222, 225, 53 Am. St. Bep. 745, 748, 30 S. W. 1050, 1052, holding
such money not to be protected after lapse of such time showing
intention to abandon its use by improving new homestead; Ward v.
Goggan, 4 Tex. Civ. 275, 23 S. W. 480, applying rule where such in-
surance money was garnished; New Orleans Ins. Assn. v. Jameson, 6
Tex. Civ. 283, 25 S. W. 307, holding such money not subject to garnish-
ment for a reasonable time; Smith v. Wright, 13 Tex. Civ. 485, 36 S.
W. 326, holding homestead rights not devested by executory sale re-
serving vendor's lien where vendor repurchases the property at the
foreclosure sale. See notes, 45 Am. St. Bep. 238; 66 Am. St. Bep. 385;
19 L. B. A. 34.
Distinguished in Be Welling, 113 Fed. 194, semi-tontine policy,
thougfh without "cash surrender value," passes to trustee in bankruptcy;
Smith V. Batcliff, 66 Miss. 688, 14 Am. St. Bep. 608, 6 So. 461, holding
under the statute a contrary rule.
Oonununity is Entitled to BeimbnrsementB for improvements made
by it on separate property of wife used as a homestead.
Approved in Bobinson v. Moore, 1 Tex. Civ. 98, 20 S. W. 996, and
Sanbum v. Deal, 3 Tex. Civ. 391, 22 S. W. 195, both reaffirming rule;
2 Tex. Notes--65
65 Tex. 54r-81 NOTES ON TEXAS KEP0BT8. 102«
Cervantes v. Cervantes (Tex. Civ.), 76 S. W. 793, similar rule applies
where improvements are made upon separate property of husband;
Maddox v. Summerlin (Tex. Civ.), 47 S. W. 1022, improvements put
upon the wife's separate estate with community funds are chargeable
for community debts to the amount so invested; Cravens v. Bower
(Tex. Civ.), 27 S. W. 422, holding survivor of community might have
lien for community funds expended by deceased upon his private
property.
Miscellaneous. — ^Dean v. Gibson (Tex. Civ.), 48 8. W. 58, cited a»
an instance where inconsistency upon the same question has been,
exhibited and defended by the supreme court.
65 Tex. 64-69, PAIiMEB ▼. OUBTNEB.
Approval of CommlssionarB of ClaiifiB of bounty warrant for benefit
of original assignee is not conclusive against those claiming by pur-
chase from the original grantee.
Reaffirmed in Byers v. Wallace (Tex. Civ.), 25 S. W. 1047, and
Walker v. Caradine, 78 Tex. 493, 15 8. W. 32. Approved in Buster
V. Warren, 35 Tex. Civ. 650, 80 8. W. 1067, finding by land board
that at time of issuance of unconditional land certificate original
grantee was dead could not devest him of title.
It Seems That Approval of the GommlBsioners of claims under act
of August 1, 1856, in favor of grantee is conclusive only of his qualifi-
cations and merits thereto.
Approved in Burkett v. Scarborough, 59 Tex. 498, holding issuance
of grant by commissioner conclusive as to merits and qualifications
of original applicant.
56 Tex. 69-75, DOUTHIT ▼. BOBINSON.
Description in a Deed is not Void for ambiguity where the land
can be identified by personal knowledge or other extrinsic information
or evidence.
Beaffirmed in Bobinson v. Douthit, 64 Tex. 103.
65 Tex. 76-81, STATE ▼. PABI8 BY.
County Attorney cannot Institute Suit in name of state on relation
of private parties to enjoin corporation from creating a public nui-
sance by exercise of unauthorized powers.
Approved in State v. Moore, 57 Tex. 313, reaffirming rule; Moore
V. Bell, 95 Tex. 156, 66 S. W. 47, bringing suits for penalties for viola-
tion of railroad commission law committed exclusively to commission
and attorney general; Duncan v. State, 28 Tex. Civ. 451, 67 8. W. 905^
county attorney cannot intervene in suit for state school land to re-
cover land for state; State v. International etc. By., 89 Tex. 566, 35
S. W. 1068, applying rule where it was sought to prevent railroad
company from operating certain line of railway and taking freight
thereon.
Distinguished in Morris v. State, 62 Tex. 734, holding county at-
torney may institute quo warranto in name of state to oust one from
exercise of an unauthorized franchise.
Where There is No Ambigoity nor Fraud or Mistake involved in
language of city ordinance, parol is not admissible to explain its
meaning.
Beaffirmed in San Antonio v. Berry, 92 Tex. 325, 48 8. W. 498.
1027 NOTES ON TEXAS EEPOBTS. 65 Tex. 81-92
55 Tex. 81-82, TEBBELL ▼. OBAKE.
Foreign Administrator cannot Maintain Bnit in Texas upon debt
owing to estat« of decedent unless it has been directly vested in ad-
ministratory or judgment previously recovered in his name.
Approved in Solinsky v. Fourth Nat. Bank, 82 Tex. 245, 17 S. W,
1050, Hynes v. Winston (Tex. Civ.), 54 S. W. 1069, and Summerhill v.
McAlexander, 1 Tex. Ap. Civ. 308, all reaffirming rule; Moore v.
Petty, 135 Fed. 674, permitting executors to recover from agents em-
ployed by them proceeds of sale of decedent's realty.
55 Tex. 82-88, SMITH ▼. PABK&
Wbera Original Plaintiff Is Dead, and suit is continued by his widow
and children, appeal bond payable to original plaintiff by name and
describing him as "the plaintiffs in this suit" is not sufficient.
Approved in Terry v. Schultz (Tex. Civ.), 38 S. W. 374, and Putch
V. Palmer, 11 Tex. Civ. 193, 32 S. W. 566, both reaffirming rule; Sydec
▼. Duran, 2 Posey U. C. 305, where one of the defendants was omitted
as obligee in appekl bond, court has no jurisdiction; Baur v. Adkins
(Tex. Civ.), 28 S. W. 1011, appellate court will not consider an appeal
where the bond is not made payable to the judgment creditor.
Where Appeal B<md Does not Gonform to Statutory requirements
securing rights of appellee, the appeal will be dismissed.
Approved in Young v. Russell, 60 Tex. 687, St. Louis By. v. Neal
(Tex. Civ.), 65 S. W. 60, and Futch v. Palmer, 11 Tex. Civ. 192, 32
S. W. 566, all reaffirming rule; Sanger v. Burke (Tex. Civ.), 44 S. W.
871, appellate court will not consider an appeal where the appeal
bond was not filed within the statutory time; McMahon v. City BanK
(Tex. Civ.), 61 S. W. 953, under article 1670, Sayles' Civ. St., bond
filed after ten days after judgment will not give jurisdiction though it
is dated back as within ten days by consent.
55 Tex. 88-02, 40 Am. Bep. 709, HOUSTON ETC. B. B. ▼. OLEM-
MON&
Passenger BemaJnlng Unnecessarily in Baggage-car, knowing it to
be more dangerous than passenger-coach, is guilty of • contributory
negligence, where he would not have been injured had he remained
in passenger-coach.
Approved in H. & T. 0. By. v. Bichards, 59 Tex. 377, holding
section-hand traveling on road crossings at night and aware of mo-
mentary approach of train guilty of contributory negligence; Texas etc.
By. V. Boyd, 6 Tex. Civ. 212, 24 S. W. 1089, held contributory negli-
gence where passenger, who was a fireman of railroad, rode in engine
with consent of engineer and conductor with view to learn road;
Haynes v. Ft. Dodge etc. B. Co., 118 Iowa, 396, 92 N. W. 58, applying
rule to one riding on front of train of flat cars being pushed by
engine; St. Louis etc. By. v. Bice, 51 Ark. 477, 11 8. W. 700, 4 L. B.
A. 173, held contributory negligence where 3rard foreman, knowing
drawhead to be defective, attempted to go between moving and stand-
ing car to make coupling; Union Pac. By. v. Sue, 25 Neb. 780, 41
N. W. 8*04, holding passenger has right to withdraw from baggage-car
platform to get on proper car; Fisher v. West Virginia etc. B. B., 30
W. Va. 376, 19 S. E. 581, 23 L. B. A. 758, where passenger riding on
platform was partially intoxicated, held contributory negligence. See
notes, 2 Am. St. Bep. 40; 19 Am. St. Bep. 587; 16 L. B. A. 631.
55 Tex. 92-110 NOTES ON TEXAS EEPOBTS. 1028
Distinguished in Galveston etc. By. ▼. Parsley, 6 Tex. Civ. 158, 25
S. W. 68, where deceased was a soldier detailed as guard in baggage-
car while detachment was being transported, railroad was liable.
55 Tex. 92-97, TABLTON ▼. DAILY.
Statement of Facts is Necessary Under Bill of Exceptions showing
exclusion of competent testimony where its relevancy and materiality
are not apparent from the pleadings.
Approved in Lockett v. Schurenberg, 60 Tex. 615, and Torey v.
Cameron, 74 Tex. 189, 11 S. W. 1089, both reaffirming rule; Lanier v.
Ferryman, 59 Tex. 107, statement of facts filed after period allowed
for its filing will not be considered on appeal.
In Suit for Pnrcliase Money, where defense is that vendor has
previously sold part of same land, plea should distinctly allege por-
tion sold, to whom and whether sale was recorded, and that such per-
son had superior title.
Approved in Groesbeck ▼. Harris, 82 Tex. 416, 19 S. W. 851, holding
that such plea must show facts constituting the outstanding para-
mount title. See note, 21 L. B. A. (n. s.) 386^
66 Ter. 97-102, GEOBGE ▼. TAYLOB.
Setting Aside of Nonsnit rests in discretion of court.
Approved in Cotton v. Lyter, 81 Tex. 12, 16 S. W. 554, where parties
agreed to read record of titles instead of originals, and at trial de-
fendant objected to the records because not filed with statutory three
days' notice, plaintiff is entitled to reinstatement after such nonsuit.
Wbere One Pays Money in Ignorance of Facts, known to receiver,
which if disclosed would have prevented his doing ao, the money is re-
coverable.
Approved in Texas Elevator etc. Go. v. Mitchell, 7 Tex. Civ. 231,
28 S. W. 49, and Phetteplace v. Bucklin, 18 B. I. 300, 27 Atl. 213,
both reaffirming rule; Jesse French Piano etc. Co. v. Nolan, 38 Tex.
Civ. 396, 85 S. W. 821, purchaser may rescind for false representa-
tions, though made innocently and not embodied in contract; Evers-
berg V. Miller (Tex. Civ.), 56 S. W. 225, one paying money to a trustee
may recover it when the trustee fails to execute the trust.
55 Tex. 102-110, BENICK T. DAWSON.
A Deed to Unpat^ited Lands by Metes and Bounds authorizing is-
suance of patent to assignee, where the location and survey was on
the lands described, transfers the certificate.
Approved in Abernathy v. Stone, 81 Tex. 434, 16 S. W. 1103, con-
veyance of land not patented operates by estoppel of both legal and
equitable title when patent issues to grantor.
A Land Certificate by Location merges in the land.
Approved in Jones v. Lee, 86 Tex. 41, 22 S. W. 394, West ▼. Loeb,
16 Tex. Civ. 401, 42 S. W. 613, and Santana Livestock etc. Co. v.
Pendleton, 81 Fed. 790, all reaffirming rule.
A Purchaser Is Charged With Notice of all facts recited in deed
through which he claims title.
Approved in O'Mahoney ▼. Flanagan, 34 Tex. Civ. 246, 78 S. W. 246^
reaffirming rule.
1029 NOTES ON TEXAS EEPOETS, 55 Tex. 110-140
66 Tex. 110-117, HOUSTON ETC. S. B. t. liTEBS.
Bailway Company Is Liable for Negligence or incompetency of
fellow-servants where it has not used reasonable care in their selec-
tion or where it has retained them after notice of incompetency.
Approved in Texas etc. By. v. Johnson, 89 Tex. 523, 35 S. W. 1044,
Texas etc. By. v. Wagner, 2 Tex. Ap. Civ. 291, and Core v. Ohio
Biver B. B., 38 W. Va. 472, 18 S. E. 601, all reaffirming rule. See
notes, 67 Am. Dec. 590; 15 L. B. A. (n. s.) 440; 14 L. B. A. (n. s.) 758;
54 L. B. A. 118; 48 L. B. A. 375.
Bailway Employee, Who After Having XCnowledge of defective ap-
pliances uses them, is guilty of contributory negligence.
Approved in Texas etc. By. v. Kane, 2 Tex. Ap. Civ. 26, and
Southern Pac. Co. v. Burke, 60 Fed. 711, both reaffirming rule; Gulf
etc. By. V. Boyall, 18 Tex. Civ. 88, 43 S. W. 816, holding burden is on
defendant to prove facts constituting the rule; Parrish v. Pensacola
etc. B. B., 28 Fla. 291, 9 So. 703, holding laborer on gravel train a
fellow-servant of the engineer, brakeman, and fireman of same train;
Jackson v. Kansas City etc. B. B., 31 Kan. 763, 3 Pac. 502, reaffirming
rule where construction train conductor knew defective condition of
engine-steps in not having side-guards; Bodman v. Michigan etc. B.
B., 55 Mich. 59, 44 Am. Bep. 350, 20 N. W. 789, holding brakeman
could not recover for injuries because conductor managed locomotive
in engineer's absence. See notes, 16 L. B. A. (n. s.) 987; 49 L. B. A.
49.
An Isolated Act of Negligence on the part of a competent railway
engineer does not constitute him an incompetent employee.'
Beaffirmed in Dallas City B. B. v. Beeman, 74 Tex. 293, 11 S. W.
1103. See notes, 14 L. B. A. (n. s.) 765; 41 L. B. A. 93; 25 L. B. A.
712.
56 Tex. 118-123, WELSH T. BBITTON.
Fact Tbat One Member of Firm making assignment prefers a firm
'of which he is a member does not render the assignment invalid.
Approved in Campbell v. Colorado Coal etc. Co., 9 Colo. 72, 10 Pac.
255, fact that one member of assigning firm is partner in creditor firm
made beneficiary does not defeat the assignment. See note, 26 L. B.
A. 600.
65 Tex. 124-129, GUEBIN ▼. PATTEBSON.
A Buling of the Trial Courts though an abstract error, is not rever-
sible error, where it did not prejudice rights of the complaining party.
Beaffirmed in Hittson t. State Nat. Bank (Tex. Sup.), 14 S. W.
993.
55 Tez. 133-187, POE ▼. BBOWNBIGG.
Husband may, During Lifetime of Wife, transfer an unlocated land
certificate without wife joining in the transfer.
Approved in Wright v. Holmes, 100 Me. 516, 62 Atl. 511, 3 L. B. A.
(n. s.) 769, upholding gift of wife made with intent to deprive hus-
band of distributive share in her estate. See note, 24 Am. St. Kep.
491.
55 Tez. 138-140, JONES ▼. 8TALLSW0BTH.
Proceedings at Law will not be Enjoined on the grounri of want of
jurisdiction in the court in which the proceedings are instituted.
55 Tex. 140-161 NOTES ON TEXAS EEPOBTS. 1030
Approved in Biggins ▼. Thompson, 30 Tex. Civ. 243, 70 S. W. 578,
denying mayor injunction against city council to prevent it from re-
moving liim from office.
Injunction Does not Lie against justice of peace to restrain trial
of case he was authorized to try by virtue of statute claimed to be
void.
See note, 8 L. B. A. (n. s.) 128.
56 Tez. 140-146, COBDBAY T. STATE.
In Suit Against Defaulting Tax Collector, where time of collections
or default before end of fiscal year is not shown, interest runs only
from end of fiscal year.
Beaffirmed in Houston Co. ▼. Dwyer, 59 Tex. 116.
56 Tex. 145-149, BENNETT ▼. FBABY.
The Inhibition in Article 2248, Beylsed Statutes, against testimony
of transactions or declarations of deceased party does not extend to
conversations with surviving partner of deceased.
Approved in Moores v. Wills, 69 Tex. 112, 5 S. W. 676, in suit by
executor to foreclose a trust deed, defendant may testify to facta
showing the property to have been intended as his homestead at time
of the trust deed; Hoxie v. Farmers' etc. Nat. Bank, 20 Tex. Civ. 466,
49 S. W. 639, when defendant partners were allowed to testify to
declarations of their deceased partners over objections of his executrix,
who was defendant also; Peacock v. Statt, 90 N. C. 520, death of one
partner does not incapacitate the witness where the surviving partner
was present at the interview.
Distinguished in Stuart v. Altman, 8 Tex. Civ. 660, 28 S. W. 462,
holding declarations of deceased partner not admissible in action by
surviving partner to enforce firm debt arising out of transaction of the
deceased.
Letter Which is Basia of Contract is admissible to explain the eon-
tract.
See note, 6 L. B. A. 34.
56 Tez. 149-161, ORB ▼. 0*BBIEN.
Will Disposing of Property, in contravention of statute of forced
heirship, is voidable only at instance of those affected thereby.
Reaffirmed in Davis v. Kirksey, 14 Tex. Civ. 383, 37 S. W. 995.
Will Giving Widow Beal Estate for and during her natural lifetime,
to be applied as she may deem best to support of herself and children,
and providing for disposition of "such property as may be left/' vests
life estate, with absolute power of disposition.
Approved in Faulk v. Dashiell, 62 Tex. 647, 648, 50 Am. Bep. 543,
544, reaffirming rule; Weir v. Smith, 62 Tex. 9, will construed as
giving widow life estate, charged with certain trusts; May v. San
Antonio etc. Town Site Co., 83 Tex. 507, 18 S. W. 961, will construed
as vesting legal estate in widow; South v. South, 91 Ind. 228, 46 Am.
Rep. 597, where grantor has right to convey under will, the deed
need not refer to the power under the will. See note, 19 Am. St. Bep.
292.
Primary Bule in Construction of Wills is to ascertain and follow
intention of testator.
Approved in Blanton v. Mayes, 58 Tex. 424, reaffirming rule; Altgelt
V. Sullivan (Tex. Civ.), 79 S. W. 337, provision in will that executor
1031 NOTES ON TEXAS BEPOBTS. 55 Tex. 161-193
shall have ample time to settle up estate does not authorize him to
coDtinue partnership; Gallagher v. Bedmond, 64 Tex. 626, where will
was construed to mean a division of remaining lands. instead of apply-
ing doctrine of contribution; Gindrat v. Montgomery Gas-Light Co.,
S2 Ala. 605, 60 Am. Bep. 773, 2 So. 331, construing deed as to power
to sell with assent in writing of the cestui que trust; dissenting por-
tion of opinion of Miller v. Sullivan, 14 Tex. Civ. 129, 33 S. W. 702,
nsAJority construing certain railway construction contract.
Ordor of Coimty Court probating will cannot be collaterally at-
tacked.
Distinguished in Gray v. Bussell, 41 Tex. Civ. 528, 91 S. W. 236,
denying validity to recital in order limiting further action of court
as to estate.
55 Tez. 161-166, ADAMS ▼. COOK.
Where Petition to Enforce Bnilder's Lien described land as "sur-
rounding and including the buildings,'' bill of particulars as "fifty
acres fronting on Leon creek, in a square shape," judgment reciting
different description upon verdict for certain amount of money is not
responsive.
Approved in Burnett v. Harrington, 58 Tex. 363, held not responsive
where verdict described land as a triangular tract as shown on plat,
while petition did not so describe it.
Wliere the Enforcement of Builder's Lien, as against certain de-
fendants was a question of fact, verdict not responding to that issue
should be set aside on appeal.
Approved in Mitchell v. Western Union Tel. Co., 12 Tex. Civ. 282,
33 S. W. 1020, holding all the issues submitted to jury for special
verdict should be answered.
56 Tez. 167-175, COKNOB T. DONNELL.
An Accommodation Note, Wherever Dated, signed, and indorsed,
takes effect, and in law is regarded as made, when and where it is
actually delivered and negotiated.
Cited in note in 55 Am. Bep. 615.
Whether a Note be Usurious or not must be determined by the laws
of state where it is payable.
Beaffirmed in Dugan v. Lewis, 79 Tex. 250, 23 Am. St. Bep. 334, 14
S. W. 1034, 12 L. B. A. 93. See notes in 46 Am. St. Bep. 201; 13 L.
B. A. 54.
55 Tez. 176-193, HOUSTON ETC. B. B. T. McKINNEY.
Bight of Way Agent of Bailway Company cannot, as incidental to
his power, designate and locate depots along the line of road.
Approved in Commercial Nat. Bank v. First Nat. Bank, 97 Tex.
543, 80 S. W. 604, president of national bank cannot bind it by
representations as to genuineness of signatures on note; Miller v.
Sullivan, 14 Tex. Civ. 128, 33 S. W. 702, where power of attorney
warranted only contract for "grading," contract also for "clearing and
grubbing" is unauthorized.
Bight of Way Deed Beciting Enhanced Value of the land because
of contemplated road and one dollar vests the right, notwithstanding
fraudulent unauthorized representations of agent.
Approved in Galveston etc. B. E. v. Pfeuffer, 56 Tex. 73, reaffirm-
ing rule; International etc. B. B. v. Dawson, 62 Tex. 262, holding
65 Tex. 193-208 NOTES ON TEXAS REPOBTa 1032
parol admissible in certain cases to show oral agreement precedent
to obligation under written contract; Weaver v. Gainesville, 1 Tex.
Civ. 289, 21 8. W. 318, where deed to city recited certain considera-
tion, antecedent parol agreement that city was to fill certain ditch
is not admissible; Kahn v. Kahn, 94 Tex. 120, 58 S. W. 827, husband
is estopped from denying recital of consideration in his deed to wife;
Walter v. Bearing (Tex. Civ.), 65 S. W. 380, the obligation of a writ-
ten contract cannot be changed by parol evidence.
Distinguished in Womack v. Wamble, 7 Tex. Civ. 275, 27 8. W.
154, where parol was allowed to show obligation of grantee in ad-
dition to the recited consideration and right to extend a wall.
Failure of an Executory Consideratioii on part of railroad, in right
of way deed, does not give grantor right to rescind the deed.
Beaffimed in Texas etc. By. v. Sutor, 56 Tex. 500.
Grantor in Bight of Way Deed waives all damages not reserved in
the deed.
Approved in Galveston etc. B. B. v. Pfeuffer, 56 Tex. 75, and
Missouri etc. By. v. Owens, 1 Tex. Ap. Civ. 166, both reaffirming rule;
I. & G. N. B. B. V. Host, 2 Tex. Ap. Civ. 337, holding railroad under
right of way deed liable for negligent construction of its road.
55 Tex. 193-200, FABBAB T. BATES.
To Constitate Bill at Exceptions Part of the Becord, it should be
filed during term at which the cause was tried, as required by statute
and supreme court rule.
Approved in Lockett ▼. Schurenberg, 60 Tex. 611, and Saul ▼.
Frame, 3 Tex. Civ. 602, 22 S. W. 986, both reaffirming rule; Harper v.
State, 41 Tex. Cr. 355, 55 S. W. 178, bills of exceptions must be pre-
sented to the judge within ten days after final judgment; Frisby v.
State, 26 Tex. Ap. 182, see 9 S. W. 464, applying rule to criminal case.
When Oamishee Proceedings are Conducted as part of original suit,
court will take judicial notice of rendition of judgment in original
case.
Approved in Orr v. Lindsley Shoe Co. v. Thompson (Tex. Civ.),
36 8. W. 1131^ Kenosha Stone Co. v. Shedd, 82 Iowa, 544, 48 N. W.
934, Kelly v. Gibbs, 84 Tex. 147, 19 8. W. 563, and Plowman v. Easton,
15 Tex. Civ. 408, 39 8. W. 173, all reaffirming rule. See note in 89
Am. Dec. 689.
Where Oamishment Included Judgment against original defendant,
Judicial notice taken of fact that judgment was against original de-
fendant.
See notes, 11 L. B. A. (n. s) 617; 4 L. B. A. 35.
65 Tex. 201-208, HTTESKE ▼. BBOUSSABD.
Where Meaning of an Indorsement on promissory note is doubtful,
parol is admissible to show whether it was to create an original con-
tract or a guaranty of payment.
Approved in Marshall Nat. Bank v. Smith, 33 Tex. Civ. 556, 77 8.
W. 238, admitting parol evidence that indorser of note at its incep-
tion was only surety; Holmes v. First Nat. Bank, 38 Neb. 332, 41 Am.
St. Bep. 737, 56 N. W. 1013, blank indorsement as between original
parties may be modified by parol. See note, 69 Am. Dec. 455.
An Indorsement on a Note "accepted, payable ninety days from
Jany. 13, 1870," in absence of explanatory evidence, is an original
promise to pay the note.
lt)33 NOTES ON TEXAS REPORTS. 55 Tex. 208-231
Approved in Page v. White Sewing Machine Co.^ 12 Tex. Civ. 331,
34 S'. W. 991; holding bond obligating principal and sureties for pay-
ment of all elaims and debts due from principal to obligee a contract
of suretyship.
Distinguished in Hollimon v. Karger, 30 Tex. Civ. 560, 71 8. W.
300, semble, on indorsing note after maturity to procure extension of
time should be regarded as indorser.
66 Tex. 20&-217, PILOHEB ▼. KTRK,
Fact Tliat Plaintiff in Trespass to Try Title is not sole heir, al-
though 60 alleged, will not defeat recovery as against a trespasser or
wrongdoer.
Approved in Robertson v. Johnson, 57 Tex. 65, reaffirming rule;
Bowles V. Beal, 60 Tex. 325, where plaintiff in trespass to try title
proved title to two-thirds of land in controversy as against strangers;
Contreras v. Haynes, 61 Tex. 106, tenant in common may recover
entire estate as against wrongdoer without joining hie cotenant;
Gaither v. Hanrick, 69 Tex. 98, 6 S. W. 622, Carley v. Parton, 75 Tex.
103, 12 8. W. 952, and Robertson v. Gourley, 84 Tex. 580, 19 S. W.
1007, all holding joint owner may recover against stranger without
joining* his cotenants; Moore v. Stewart (Tex. Sup.), 7 S. W. 776, one
tenant in common may recover in trespass against a mere trespasser.
66 Tex. 217-281, HUNTON ▼. MICHOLa
In Avoiding tiie Running of Limitations, minority cannot be tacked
to coverture.
Reaffirmed in Wichita Land etc. Co. v. Ward, 1 Tex. Civ. 311, 21 S.
W. 130.
Absence ftom the State of One Invoking Limitations does not
prevent its running in his favor when, during such absence, possession
of the land was held by his tenant or agent.
Explained in Huff v. Crawford, 88 Tex. 373, 53 Am. St. Rep. 763,
30 8. W. 546, holding article 3216, Revised Statutes, which deducts
temporary absence from running of limitations, appliee to all suits
alilfft
Overruled in Huff v. Crawford (Tex. Civ.), 32 S. W. 594, nnder
article 3216, Revised Statutes, absence from the state stops the run-
ning of the statute of limitations, even though possession of the land
is held through an agent.
Fact That a Deed Does not Convey Good Title does not prevent its
being the basis of five years' limitations.
Approved in Wynne v. Parke (Tex. Civ.), 30 S. W. 55, reaffirmin;?
rule; Harris v. Wells, 85 Tex. 315, 20 S. W. 69, deed not void on its
face will support the five years* limitations; dissenting opinion in
Schleicher v. Gatlin, 85 Tex. 277, 20 S. W. 123, majority holding tax
deed admissible without proof of levy of the tax and usual pre-
requisites to a sale for taxes.
Judgments or Decrees rendered out of term time are void.
Approved in Lyons-Thomas Hardware Co. v. Perry Stove etc. Co.,
88 Tex. 486, 27 S. W. 109, judge cannot adjudicate rights of litigants
except at the times and places prescribed by law; Ex parte Ellis,
37 Tex. Cr. 542, 66 Am. St. Rep. 834, 40 S. W. 276, judgments of courta
made in vacation, unless authorized, are void.
55 Tex. 231-243 NOTES ON TEXAS EEP0BT8. 1034
65 Tex. 231-236, LESSING v. OUNNINOHAH.
Judgment by Consent is a WaiTer of All Errors except such as in-
volve jurisdiction.
Approved in Sandoval v. Bosser, 86 Tex. 687, 26 S. W. 935, reaffirm-
ing rule; Staller v. McDonald, 3 Tex. Ap. Civ. 458, judgment is not
by default where its recitals show appearance hj defendants and
agreement for a stay of execution.
In Suit upon a Contract Witbin Statute of Frauds, it is not neces-
sary to allege affirmatively that it was in writing.
See note, 86 Am. Dec. 685.
66 Tex. 23&-2S7, THSOCKMOBTON ▼. DAVENPORT.
Judgment in Trespass to Try Title for Land, a portion of which
is not embraced in pleadings, is erroneous.
Approved in Burnett v. Harrington, 58 Tex. 363, Cooper v. Conerty,
83 Tex. 136, 18 S. W. 335, and Lester v. Ft. Worth etc. B. B. (Tex.
Civ.), 26 8. W. 167, all reaffirming rule; Smith v. Conner, 98 Tex. 436,
84 S. W. 816, refusing to compel court of civil appeals to certify ques-
tion decided in cited case; Lazarus v. Barrett, 5 Tex. Civ. 6, 23 S. W.
822, held fatal variance where petition sought partition of '*lot 5, in
block 14," while decree was for "lot 15 in block 14."
Distinguished in Taylor v. Carter, 62 Tex. 490, held no variance
where judgment of foreclosure gave different distance lines from
pleadings, but called for same well-known corners set forth in plead-
ings.
65 Tex. 237-241, BUBKS ▼. BENNETT.
Where County Judge had Been Temporary Administrator, and had
made no final settlement, he is disqualified.
Approved in Prendergass v. Beale, 59 Tex. 448, when county judge
was named executor in the will.
Miscellaneous. — Burks v. Bennett, 62 Tex. 278, referring to former
appeal of same case.
65 Tex. 241-243, WADSWOBTH ▼. CHICK.
Probate Court has No Jurisdiction over contest for estate between
administrator and one claiming by virtue of gift causa mortis.
Approved in McColpin v. McColpin's Estate, 96 Tex. 565, 74 S. W.
758, affirming (Tex. Civ.), 75 S. W. 826, semble, district court in pro-
bate proceeding has no jurisdiction over agreement to adopt; Caron
V. Old Reliable Gold Mining Co., 12 N. M. 224, 78 Pac. 66, probate
court without authority to hear contested claim to property between
estate and stranger; Lumpkin v. Smyth, 57 Tex. 491, allowing costs
of district and appellate courts where appeal was made to district
from probate court without appeal bond; Timmins v. Bonner, 58
Tex. 561, county court, sitting in probate, has no jurisdiction over
former ward's claim against guardian's sureties, for which claim judg-
ment had been rendered against the guardian;* Groesbeck v. Groes-
beck, 78 Tex. 668, 14 8. W. 793, district court has jurisdiction of suit
to annul a deed of deceased during administration; Hamm v. Hut-
chins, 19 Tex. Civ, 211, 46 S. W. 874, probate court cannot pass on
title to realty; Morley v. Andrews, 55 Ark. 224, 17 8. W. 806, pro-
bate court cannot adjudicate claim of widow against administrator
for rents.
1035 (J^OTBS ON TEXAS BEPOBTS. 55 Tex. 243-251
Wliere Court has No Original Juriadiction, it cannot confer jarlB-
diction hj appeal therefrom.
Approved in Llano Improvement etc. Co. v. White, 5 Tex. Civ.
110, 23 S. W. 5^7 county court may render judgment for costs on
dismissal of appeal from justice for want of jurisdiction; McMahon
V. City Bank (Tex. Civ.), 61 S. W. 953, false date of filing on appeal
bond does not give jurisdiction where time of filing is too late; Hall
y. McGill (Tex. Civ.), 38 S. W. 828, county court has no jurisdiction
of matters on appeal from justice's court where the justice's court
has no original jurisdiction.
Where Judgments of Both Probate and District Courts, on appeal,
were unauthorized, supreme court will reverse same and dismiss cause.
Approved in Timmons .v. Bonner, 58 Tex. 562, where original court
has no jurisdiction, on appeal the judgment will be reversed and
cause dismissed; Boy v. Whitaker (Tex. Civ.), 50 S. W. 498, such
appeals are properly entertained merely to reverse for want of juris-
diction in the court a quo.
Miscellaneous. — ^Young v. Gray, 60 Tex. 545, cited generally to the
proposition that where bill of review seeks to embrace matters
concerning action of county court had in distribution and partition
of deceased ward's estate alone, it cannot be considered on appeaL
56 Tez. 243-248, SALMON ▼. DOWNS.
Assignee of Purchase Money Notes has no preference over assignor
who retains one or more notes from same series.
Approved in Wooters v. Hollingsworth, 58 Tex. 374, 375, Lewis
V. Boss (Tex.), 65 S. W. 505, 506, and Wilson v. Hampton, 2 Posey
tJ. C. 427, all reaffirming rule; Douglass v. Blount, 95 Tex. 381, 67
S. W. 490, 58 L. B. A. 699, right of vendor to rescind for nonpayment
lost by assignment of one of purchase money notes; Tidwell v. Starr
(Tex. Civ.), 42 S. W. 779, holders of outstanding notes should be made
parties to suit to foreclose a vendor's lien; Stell v. Lewis, 2 Posey
U. C. 533, purchase money note maturing first has no priority over
later ones.
Distinguished in Perry v. Dowdell, 38 Tex. Civ. 100, 84 S. W. 835,
assignee of purchase money note preferred to purchaser of note from
mortgagee at receiver's sale; Douglass v. Blount, 93 Tex. 501, 502, 56
B. W. 335, holding a distinction in case of contest between original
lienholder and assignee, and case where contesting parties were all
assignees; Douglass v. Blount, 22 Tex. Civ. 496, 55 S. W. 528, hold-
ing assignee of purchase money note entitled to priority over those
held by vendor; Dilley v. Freedman, 25 Tex. Civ. 40, 41, 60 S. W.
449, 450, holding where vendor having series of purchase money notes
assigns several, such assigned notes have priority of those retained.
Explained in Vieno v. Gibson (Tex. Civ.), 20 S. W. 718, where
purchase money notes are in hands of one person, there is no priority
of payment, although maturing at different dates; hence purchaser
at foreclosure sale for default of first note takes the land free from
lien of later note.
Miscellaneous.— Hall v. McGill (Tex. Civ.), 38 8. W. 828, and Boy
V. Whitaker (Tex. Civ.), 50 S. W. 498, both miscited.
65 Tez. 248-251, RAMSEY V. MEDLIN.
Purchaser of School Lands in Trespass to Try Title must show the
valuation of the land required by act of April 24, 1874.
55 Tex. 254-289 NOTES ON TEXAS REPORTS. 1036
Approved in Snyder v. Nunn, 66 Tex. 258, 18 S. W. 341, apply-
ing rule to law of 1881; Martin v. McCarty, 74 Tex. 135, 10 S. W.
224, holding clasBification and tabulated statement prescribed by law
of 1885 necessary before lands are sold under the act; Thompson ▼.
Autry (Tex. Civ.), 52 S. W. 581, a purchaser of school lands must
show that the lands have been classified and appraised.
Distinguished in Corrigan v. Fitzsimmons, 97 Tex. 598, 80 S. W.
990, reversing (Tex. Civ.), 76 S. W. 69, presumption that official duty
has been performed may supply such proof; Dooley v. Maywald, IS
Tex. Civ. 390, 45 S. W. 223, holding commissioner of land office may
sell land although county commissioner's report failed to give general
classification.
66 Tex. 254-266, COLEMAK ▼. SMITH.
An Agreed Line of Doubtful Survey is not within statute of frauds.
Reaffirmed in Tonopah & Salt Lake Min. Co. v. Tonopah Min. Co.^
125 Fed. 408; Cooper v. Austin, 58 Tex. 500; Ham v. Smith, 79 Tex.
312, 23 Am. St. Rep. 342, 15 S. W. 241; Kampman v. Heintz (Tex.
Civ.), 24 S. W. 330; Beardsley v. Crane, 52 Minn. 546, 54 N. W.
743.
Distinguished in Cartmell v. Chambers (Tex. Civ.), 54 S. W. 364,
rule not applicable where in division of land the parties mutally
believed it to consist of seventeen acres, whereas in fact the traec
contained fifty-two acres.
55 Tex. 266-272, BAYSOB ▼. BEID.
Grantor's Interest in Property Conveyed by Tnurt Deed is subject
to execution where neither trustee or beneficiary are in possession or
entitled to it at time of levy and sale.
Approved in Holland v. Frock, 2 Posey U. C. 567, reaffirming rule;
Wilkins v. Bryarly (Tex. Civ.), 46 S. W. 267, titl« to mortgaged prop-
erty remains in the mortgagor or grantor until devested by foreclos-
ure or execution of the trust.
Priority of Liens will not be Determined in proceeding for trial of
right of property.
Approved in Groesbeck v. Evans, 40 Tex. Civ. 218, 83 S. W. 431,
reaffirming rule.
55 Tex. 273-280, 8HULTZ V. LEMPERT.
Trial De Novo Means Trial of Entire Case anew, hearing evidence,
whether additional or not.
Approved in Harrold v. Barwise, 10 Tex. Civ. 139, 30 S. W. 499,
in justice court in suit for mules, defendant pleaded general denial;
held that additional special plea on appeal to county court that he
held them under mortgage was proper.
Party Participating in Trial without objection cannot complain
in appellate court because record does not show authority of special
judge.
Approved in Western Union Tel. Co. v. Neel (Tex. Civ.), 35 S, W.
29, following rule; Hess v. Dean, 66 Tex. 666, 2 S. W. 727, applying
rule where special judge was appointed by the governor.
56 Tex. 281-289, 49 Am. Bep. 801, BINGHAM V. BABLEY.
Plaintiff Sning for Becovery of Land conveyed during his minority
must tender back the consideration received.
1037 NOTES ON TEXAS BEPOETS. 55 Tex. 289-304
Approved in Vogelsang v. Null, 67 Tex. 467, 3 S. W. 452, and Bul-
lock V. SprowU, 93 Tex. 191, 77 Am. St. Bep. 851, 54 S. W. 662, 47
L. B. A. 326, both reaffirming rule; Eendrick v. Wheeler, 85 Tex. 253,
20 S. W. 46, wards seeking to avoid their guardian's sale of land un-
der order of court must refund purchase money; Marlin v. Kosmy-
roski (Tex. Civ.), 27 S. W. 1043, contracts made by minors are void-
able. See notes, 46 Am. Bep. 317; 18 Am. St. Bep. 688, 693; 26 L.
B. A. 182.
Distinguished in Young ▼. West Virginia etc. By., 42 W. Va. 120,
24 S. E. 618, holding in personal injury suit plaintiff may disaffirm
release without restoring money received therefor.
Minor's Disaifirmaiice of Deed must be made within reasonable
time after arriving of age.
Approved in Simkins v. Searcy, 10 Tex. Civ. 411, 32 S. W. 851,
where minor's conveyance was in 1878 and he died in 1883, and
his heirs commenced suit in 1887, it is too late; Searcy v. Hunter,
81 Tex. 646, 26 Am. St. Bep. 839, 17 S. W. 373, not barred where
mother survived infant who made conveyance five months without
disaffirming; Hieatt v. Dixon (Tex. Civ.), 26 S. W. 264, bringing suit
five years after becoming of age to cancel a deed made by a minor
is barred because not brought within a reasonable time; Peck ▼.
Cain, 27 Tex. Civ. 43, 63 S. W. 179, where plea was made within a
month after arriving at majority, it is not too late. See note, 18 Am.
St. Bep. 675, 676.
Silence of Minor for Period Less Than Period of Limitations may
as effectually prove affirmance of his deed in connection with circum-
stances as express acts.
Beaffirmed in Simkins v. Searcy, 10 Tex. Civ. 413, 32 S. W. 852.
55 Tex. 289-293, WATSON v. MILLEB.
Execntor of Deceased cannot Intenrene in Snit by surviving part-
ner for collection of debts due the partnership.
Approved in Hargadine v. Gibbons, 45 Mo. Ap. 469, reaffirming rule;
Gulf etc. By. v. Goldman, 87 Tex. 571, 29 S. W. 1063, holding hus-
band may prosecute suit for damages to community property com-
menced by himself and wife, after wife's death.
Surviving Partners are Entitled to Collect partnership debts so
as to wind up the partnership.
Beffirmed in Campbell v. Wallace, 3 Tex. Ap. Civ. 514. See note,
77 Am. Dec. 115.
65 Tex. 293-304, SPOFFOBD v. BENNETT.
Exemption from Suit Given by the Tliree Years' Iiimitations is not
lost by temporary break in possession subsequent to completed term
of adverse possession.
Approved in Echols v. Hubbard, 90 Ala. 315, 7 So. 819, Hoffman v.
White, 90 Ala. 356, 7 So. 816, and Juck v. Fewell, 42 Fed. 519, all
reaffirming rule; Williams v. Galveston (Tex. Civ.), 58 S. W. 552,
husband cannot impair wife's title by lease, after both have held ten
years' adverse possession of the property.
Claims for Headright Certificates, which were not recommended
for patents because they were not sworn to, were validated under
article 2021, Hart. Dig.
Approved in Creswell Banche etc. Co. v. Waldstein (Tex. Civ.),
28 S. W. 262, claims based upon unpatented certificate locations were
validated by statute.
55 Tex. 304-314 NOTES ON TEXAS REPORTS. 1038
55 Tex. 304-308, PUNCHABD v. DEIaK.
An Agreement Waiving Misjoinder of Actions by plaintiffs do3«
not go to foundation of action, but merely to manner of bringing
it.
Distinguished in O'Neal v. Lockhart, 2 Posey U. C. 599, holding
nonjoinder where plaintiffs had no community of interests in tbo
land sued for.
A Purchaser Pendente Lite, who becomes defendant, is bound by
an agreement of his vendor waiving misjoinder of actions by plain-
tiffs.
Approved in Tuggle v. Hughes (Tex. Civ.), 28 S. W. 63, and Delk
V. Punchard, 64 Tex. 363, both reaffirming rule; Jones v. Robb, 35
Tex. Civ. 270, 80 S. W. 400, purchaser pendente lite bound by judg-
ment, though by agreement, unless collusive; Ferris v. Streeper, 59
Tex. 314, purchaser of subject matter pendente lite cannot prosecute
the appeal; Hair v. Wood, 58 Tex. 78, purchaser of land pending
litigation thereon is bound by the judgment rendered, although not
a party.
55 Tex. SOS-314, 40 Am. Sep. 805, BO BELLE ▼. WESTERN UNION
TEL. CO.
Actual Damages may be BecOYered under the general averment of
damages.
Approved in San Antonio etc. Ry. v. Gwynn, 4 Tex. Ap. Civ. 342,
15 S. W. 510, direct and consequential damages may be alleged in
general terms; Texas etc. Ry. v, Kane, 2 Tex. Ap. Civ. 27, actual
damages resulting naturally from act complained of are recoverable
under general averment of damages.
Telegraph Company is Liable for icjury to feelings of son because
of inability to attend mother's funeral, resulting from its willful fail-
ure to deliver message announcing her death.
Approved in Stuart v. Western Union Tel. Co., 66 Tex. 585, 59
Am. Rep. 628, 18 S. W. 353, Western Union Tel. Co. v. Cooper, 71
Tex. 511, 10 Am. St. Rep. 773, 9 S. W. 599, 1 L. R. A. 728, Young v.
Western Union Tel. Co., 107 N. C. 378, 383, 22 Am. St. Rep. 890, 894,
11 S. E. 1046, 1048, 9 L. R. A. 669, and Western Union Tel. Co. v.
Smith (Tex. Civ.), 30 S. W. 941, Wadsworth v. Western Union Tel.
Co., 86 Tenn. 709, 6 Am. St. Rep, 872, 8 S. W. 579, all reaffirming rule;
Western Union Tel. Co. v. Jones, 81 Tex. 273, 16 S. W. 1006, hold-
ing party for whose benefit telegram is sent has right of action,
though he is not party to contract for its sending; Graham v. Western
Union Tel. Co., 109 La. 1071, 1075, 34 So. 92, 93, allowing recovery
for failure to deliver telegram announcing approaching death of son;
Ellis V. Brockton Publishing Co., 198 Mass. 543, 126 Am. St. Rep. 454,
84. N. E. 1020, damages in libel may include compensation for
wounded feelings; Green v. Western Union Tel. Co., 136 N. C. 503,
103 Am. St. Rep. 955, '49 S. E. 170, 67 L. R. A. 985, applying rule to an-
noyance from failure to meet person at railway station; Barnes ▼.
Western Union Tel. Co., 27 Nev. 445, 103 Am. St. Rep. 776, 76 Pac
933, 65 L. R. A. 666, allowing recovery for mental suffering from
failure to deliver telegram asking pecuniary aid; dissenting opinion
in Western Union Tel. Co. v. Ferguson, 157 Ind. 78, 60 N. E. 1081,
54 L. R. A. 846, majority denying recovery for suffering from fail-
ure to deliver message announcing death of relative; Western Union
Tel. Co. V. Henderson, 89 Ala. 519, 18 Am. St. Rep. 154, 7 So. 423,
1039 NOTES ON TEXAS REPORTS. 55 Tex. 314-319
where defendant failed to deliver plaintifiTs telegram requesting phy-
sician to attend his wife at once. See notes, 36 Am. Rep. 306,
307; 45 Am. Rep. 496; 7 Am. St. Rep. 535, 536; 10 Am. St. Rep. 788;
27 Am. St. Rep. 918; 117 Am. St. Rep. 312; 8 L. R. A. (n. s.) 249;
9 L. R. A. 669; 2 L. R. A. 767.
Distinguished in Gulf etc. Ry. t. Levy, 59 Tex. 569, 46 Am. Rep.
283, holding father cannot recover for mental suffering alone be-
cause of nondelivery of telegram from his son announcing death of
8on*8 wife; International etc. Tel. Co. v. Saunders, 32 Fla. 438, 441,
14 So. 149, 150, 21 L. R. A. 810, Chapman v. Western Union Tel. Co.,
88 Ga. 754, 30 Am. St. Rep. 183, 15 S. E. 901, West v. Western Union
Tel. Co., 39 Kan. 100, 7 Am. St. Rep. 534, 17 Pac. 811, Western Union
Tel. Co. V. Rogers, 68 Miss. 755, 757, 758, 759, 24 Am. St. Rep. 303, 305,
306, 307, 9 So. 825, 826, 13 L. R. A. 859, Connell v. Western Union Tel.
Co., 116 Mo. 40, 41, 49, 38 Am. St. Rep. 578, 585, 22 S. W. 346, 347, 349,
20 L. R. A. 172, Summerfield v. Western Union Tel. Co., 87 Wis. 9,
41 Am. St. Rep. 19, 57 N. W. 974, Chase v. Western Union Tel. Co.,
44 Fed. 554, 555, 10 L. R. A. 464, Crawson v. Western Union Tel. Co.,
47 Fed. 546, Ke&ter v. Western Union Tel. Co., 55 Fed. 604, and
Western Union Tel. Co. v. Wood, 57 Fed. 478, 21 L. R. A. 706, all
holding damages for mental suffering not recoverable in suit against
telegraph company for nondelivery of telegram.
Disapproved in Rowan v. Western Union Tel. Co., 149 Fed. 551,
and Western Union Tel. Co. v. Ferguson, 157 Ind. 65, 66, 60 N. E.
675, 54 L. R. A. 846, affirming 26 Ind. Ap. 216, 59 N. £. 417, Butner
V. Western Union Tel. Co., 2 Okl. 238, 37 Pac. 1088, Western Union
Tel. Co. ▼. Sklar, 126 Fed. 299, all denying recovery for mental suf-
fering from failure to deliver telegram announcing death; Glenn v.
Western Union Tel. Co., 1 Ga. Ap. 828, 58 8. E. 87, regretfully deny-
ing recovery for anguish from failure to transmit telegram; Connelly
V. Western Union Tel. Co., 100 Va. 56, 58, 93 Am. St. Rep. 919, 40
S. E. 620, 56 L. R. A. 663, denying recovery for mental suffering from
failure to deliver telegram where no negligence or special damage
alleged.
It is the Duty of a Telegraph Company to promptly transmit and
deliver all messages intrusted to it.
Approved in Western Union Tel. Co. v. Scircle, 103 Ind. 232, 2 N. E.
607, burden is on telegraph company to explain unreasonable delay in
delivering message; dissenting opinion in Hart v. Western Union Tel.
Co., 66 Cal. 587, 6 Pac. 643, majority holding burden on plaintiff to
show willful misconduct or gross neglect on part of telegraph com-
pany in order to recover beyond stipulated liability. See note, 81 Am.
Dec. 616.
In Measuring Damages for Nondelivery of social telegrams great
caution should be used not to confound grief from loss of relative
with regret or disappointment from failure to attend funeral.
Reaffirmed in Beasley v. Western Union Tel. Co., 39 Fed. 188. Ap-
proved in Rosser v. Western Union Tel. Co., 130 N. E. 254, 41 8. E.
379, omission of word "great" from instruction not error.
65 Tex. 314-319, WESTERN UNION TELEGRAPH CO. T. STATE,
Eeversed B. C, 105 U. 8. 460, 26 I*. 1067.
Graduated Occupation Tax on Telegraph Company on business done,
regardless of whether done wholly or partially within state, does not
violate interstate commerce.
55 Tex. 319-344 NOTES OJJ TEXAS REPOBTS. 1040
Approved in Western Union Tel. Co. v. State Board, 80 Ala. 281,
60 Am. Bep. 107, reaffirming rule; Western Union Tel. Co. v. Ala-
bama State Board, 132 U. S. 475, 10 Sup. Ct. Bep. 162, 33 L. 410, hold-
ing telegraph company cannot be taxed for messages carried partly
within and partly without the state. See note, 60 L. B. A. 669.
State cannot Becover Interest on deferred taxes unless authorized
by statute.
Reaffirmed in Heller v. Alvarado, 1 Tex. Civ. 411, 20 S. W. 1004,
Cave V. Houston, 65 Tex. 622, Brooks v. State (Tex. Civ.), 58 S. W.
1035, Sargent v. Tuttle, 67 Conn. 168, 34 Atl. 1029, 32 L. B. A. 822,
and Gallup v. Schmidt, 154 Ind. 217, 56 N. E. 450. See note, 6 L.
B. A. (n. s.) 695.
Miscellaneous. — Western Union Tel. Co. y. State, 62 Tex. 631, re-
ferring to former appeal of same case.
55 Tex. 31^-322, SELLMAN ▼. LEE.
Answer in Trespass to Try Title asserting claim to nndesignated
portion of land sued for is bad for vagueness and uncertainty.
Approved in Crumbley v. Busse, 11 Tex. Civ. 324, 32 S. W. 441,
reaffirming rule; Crumbley v. Busse, 11 Tex. Civ. 325, 32 S. W. 442,
a plea in trespass to try title claiming improvements made in good
faith must allege when the improvements were made.
Pre-emptor in Good Faith ie entitled to pay for improvements made
during such occupancy.
Approved in Thompson v. Comstock, 59 Tex. 319, Miller ▼. Moss,
65 Tex. 185, and Gaither v. Hanrick, 69 Tex. 98, 6 S. W. 622, all
reaffirming rule; Benson v. Cahill (Tex. Civ.), 37 S. W. 1091, plaintiff
on recovery is not bound to pay all defendants a lump sum for all
their improvements; Butts v. Caff all (Tex. Civ.), 24 S. W. 380, one
making improvements on another's land, honestly believing it to be
his own, is entitled to recover the value of the improvements. See
note, 70 L. B. A. 811.
55 Tez. 823-344, 40 Am. Bep. 808, HOTTSTON ETO. B. B. ▼. BTJBKE.
Citation Need not State Nature of Demand in petition other than
in a general way.
Apyproved in Hinzie v. Kempner, 82 Tex. 620, 18 S. W. 661, Borden
V. Houston, 26 Tex. Civ. 31, 62 S. W. 427, both reaffirming rule; Mc-
Anally v. Vickry (Tex. Civ.), 79 S. W. 858, not necessary in suit
on note providing for attorney's fee to state that note has been
placed with attorney for collection; Miles v. Kinney (Tex. Sup.), 8
S. W. 542, citation should notify each defendant of the character of
the demand against himself.
In Suit Against Bailroad CoriK>ratlon, citation may he served on
local agent in county where suit is brought.
Beaffirmed in El Paso etc. By. Co. v. Kelly (Tex. Civ.), 83 S. W.
859, and G. H. etc. By. v. Gage, 63 Tex. 572.
Qualified in Jones v. Jefferson, 66 Tex. 578, 1 S. W. 903, holding that
corporation may show that person served with citation was not its
officer or agent.
Common Carriers are Uable in Texas as at common law, regard-
less of any exceptions or special contracts avoiding such liability.
Approved in Missouri etc. By. v. Carter, 9 Tex. Civ. 689, 29 S. W.
570, and Texas Express Co. v. Dupree etc. Express Co., 2 Tex. Ap.
Civ. 276, both reaffirming rule; Pacific Exp. Co. v. Pitman, 30 Tox.
Civ. 627, 71 S. W. 312, etate statute prohibiting limitation of com-
1041 NOTES ON TEXAS EEPORTS. 55 Tex. 344-355
mon-law liability valid even as to interstate shipments; International
etc. B. R. V. Moody, 71 Tex. 617, 9 S. W. 466, where the bill of lad-
ing exempting from "loss by fire while in depot" was made in Ten-
nessee, but its legality there was not alleged.
Where Shipper Fraudulently Conceals Value of articles shipped, com-
mon carrier is discharged.
BeafSjmed in Texas Express Co. v. Scott, 2 Tex. Ap. Civ. 60. See
note, 23 L. B. A. (n. s.) 748.
Distinguished in Southern Express Co. v. Owens, 146 Ala. 424, 119
Am. St. Rep. 41, 41 So. 755, 8 L. B. A. (n. s.) 369, permitting re-
covery for value of manuscript of books, in spite of agreed valuation.
Son's Statement of Cost of Family Portraits based on conversa-
tions with deceased father and family traditions is hearsay.
Approved in Missouri etc. By. Co. v. Criswell, 34 Tex. Civ. 281, 78
S. W. 390, testimony as to what physician said concerning injury
inadmissible; Thompson v. Comstock, 59 Tex. 320, conversations with
county surveyor m regard to certain pre-emption claims are hearsay;
Missouri etc. By. v. Dawson, 10 Tex. Civ. 21, 29 S. W. 1107, statement
that plaintiff's doctor told him that his sickness was caused by his
expulsion from train is hearsay; Golf rank v. Halff (Tex. Civ.), 26
S. W. 778, it is error to permit sheriff to state the value of goods
levied on, when based on statements from bystanders.
Witness may Befresh Memory as to value of specific articles by
bill of particulars, known by him to be copy of his own memorandum.
Approved in Watson v. Miller, 82 Tex. 285, 17 S. W. 1057, Faver
v. Bowers (Tex. Civ.), 33 S. W. 132, both reaffirming rule; Waco Ice
etc. Co. V. Wiggins (Tex. Civ.), 32 S. W. 59, plaintiff may inspect his
petition for a detailed statement of the amounts due him.
Distinguished in Tabor v. State, 52 Tex. Cr. 394, 107 S. W. 1119,
where copy did not serve to refresh witness' memory.
In Suit for Loss of Family Portraits, jury may look to original
«08t and to probable cost of reproducing them.
Approved in Tillman v. Brown, 64 Tex. 185, reaffirming rule;
Houston etc. Ry. v. Ney (Tex. Civ.), 58 S. W. 43, damages should
be cost of reproducing the busts and sketches, or if that cannot be
done, their value to owner; Howard College Trustees v. Turner, 71
Ala. 435, 46 Am. Rep. 330, damages for breach of permanent scholar-
ship certificate is prima facie the price paid for it. See note, 8 L. R.
A. (n. 8.) 371.
Motion to Qnash Deposition too late when parties have announced
ready for trial.
Approved in St. Louis etc. Ry. Co. v. Harkey, 39 Tex. Civ. 527,
88 S. W. 507, reaffirming rule.
That Bill of Lading Did not Disclose valuable character of freight
is meritorious defense.
Approved in Scottish Union etc. Ins. Co, v. Tomkies, 28 Tex. Civ.
162, 66 S. W. 1111, defense under clause exempting insurance com-
pany if any part of building should fall, meritorious.
55 Tez. 344-365, HODQE v. DONALD.
Colonial Grant to Man by Reason of His Status as a single man
becomes his separate property.
Reaffirmed in Welder v. Lambert, 91 Tex. 524, 44 S. W. 285;
Garner v. Thompson, 2 Posey U. C. 234. See note, 86 Am. Dee. 631.
2 Tex. Note8r~-66
55 Tex. 356-373 NOTES ON TEXAS REPORTS. 1042
WlMre Man Obtained Increaaed Quantity of Land in colonial grant
hy reason of his status at a married man, it becomes community
property.
Reaffirmed in Wimberly ▼. Pabst, 55 Tex. 590; Porter v. Chronister,
58 Tex. 55; Rudd v. Johnson, 60 Tex. 94; Norton v. Cantagrel, 60
Tex. 539. Approved in Ahem v. Ahem, 31 Wash. 337, 96 Am. St.
Rep. 912, 71 Pac. 1024, homestead initiated during marriage com-
munity property, though final proof made after wife's death. See
note, 17 L. R. A. (n. s.) 155.
Two Essential Beqnisites for Grants in Peters^ Colony were im-
migration into Texas as colonist, and settlement within colony prior
to July 1, 1848.
Reaffirmed in Norton ▼. Cantagrel, 60 Tex. 540. See note, 86 Am.
Dec. 630.
55 Tex. 366-364, RUSSELL ▼. FABQUHAB.
Judgment or Decree as to Bight to Land or its partitioning !s
admissible in second trial between same parties, although not recorded
pursuant to article 4339, Revised Statutes.
Approved in Henderson v. Lindley, 75 Tex. 189, 12 S. W. 980,
Corley v. Renz (Tex. Civ.), 24 S. W. 937, and Lunn v. Scarborough
(Tex. Civ.), 35 S. W. 509, all following rule; Sloan v. Thompson, 4
Tex. Civ. 425, 23 S. W. 615, judgment cannot be attacked collaterally
because of insufficient affidavit for publication.
In Construing an Ambiguous Statute, the court should look to its
intent, while considering the old law, its evil and the remedy.
Approved in Braithwaite v. Cameron, 3 Okl. 635, 38 Pac. 1086,
Mclnery v. Galveston, 58 Tex. 340, State v. Wells, 61 Tex. 564,
Wheeler v. Wheeler, 76 Tex. 493, 13 S. W. 307, Storrie v. Houston
City St. Ry., 92 Tex. 144, 145, 46 S. W. 801, 802, 44 L. R. A. 716,
Edwards v. Morton, 92 Tex. 154, 46 S. W. 794, and Braithwaite ▼.
Cameron, 3 Okl. 635, 38 Pac. 1086, all reaffirming mle; Witherspoon
V. Jernigan, 97 Tex. 105, 76 S. W. 447, "and" may be taken in the
sense of "or" to remove absurdity; Ellis County v. Thompson, 95 Tex.
32, 66 S. W. 50, considering effect of general intention to restrict
rather than enlarge rights of officers; Ex parte Vaccarazza, 52 Tex.
Cr. 108, 106 S. W. 1120, holding new liquor law to have revoked license
granted under old one; City of Houston v. Dooley, 40 Tex. Civ. 374,
89 S. W. 778, words "for all time to come" need not refer to time of
passage of charter; Mcdlin v. Seideman, 39 Tex. Civ. 556, 88 S. W.
251, constable authorized to execute process delivered to him by any
lawful officer may do so when process delivered by attorneys for
parties; Von Diest v. San Antonio Traction Co., 33 Tex. Civ. 578,
77 S. W. 633, ordinances not to be construed so as to require fenders
and motormen on trailer cars; State v, Whitaker (Mo.), 60 S. W.
1070, applying rule in construction of act providing screens to protect
electric-car motormen.
Miscellaneous. — Cited in Thompson v. Rust, 32 Tex. Civ. 443, 74
S. W. 925, probate proceedings in other county not constructive
notice of sale of land.
66 Tez. 366-373, SILLIMAN ▼. aAMMAQE.
As Against Mortgagee Who Purchased Mortgagor's Eqaity a?
economical mode of foreclosure, purchaser at sheriff's sale under
judgment subsequent to mortgage has superior title subject to mort-
gagee's equitable rights.
1043 NOTES /)N TEXAS BEPOBTS. 55 Tex. 377-382
Approved in Ogden ▼. BoBse, 86 Tex. 343, 24 S. W. 801, reaffirm-
ing rule; King v. Brown, 80 Tex. 278, 16 S. W. 39, holding foreclosure
proceedings of no effect as to purchaser of mortgagor's equity when
not made party thereto; Boone ▼. Miller, 86 Tex. 79, 23 S. W. 575,
holding legal title remains in grantor until sale under the trust deed;
McDonald v. Miller, 90 Tex. 313, 39 S. W. 96, plaintiff in attachment
who had obtained order for sale, bnt did not proceed to sell, is not af-
fected by subsequent foreclosure proceedings of vendor's lien to which
he is not a party; Wilkins v. Bryarly (Tex. Civ.), 46 8. W. 267, title to
mortgaged property remains vested in the mortgagor until foreclos-
nre; Byers v. Brannon (Tex. Sup.), 19 S. W. 1094, one acquiring the
equity of redemption is a necessary party to a subsequent suit in
foreclosure; Willis v. Heath (Tex. Sup.), 18 S. W. 803, purchaser at
an execution sale before a mortgagee received a deed in satisfaction
of his mortgage eannot recover the land without first discharging
the mortgage; Owens v. Heidbreder (Tex. Civ.), 44 8. W. 1087, a
purchaser at a foreclosure of liens is entitled to have the property
sold to pay the liens as against a mortgagee not a party to the iote-
closure.
Mortgagor is I^tltled to Posaession of the mortgaged premises
until foreclosure.
Distinguished in Downs v. FariQers' Loan etc. Co., 79 Fed. 21Q,
where railroad having senior and junior mortgage was in hands of
A receiver at time of foreclosure of junior mortgage.
Where Mortgagee Acquires Equity of Redemption, he will be re-
garded as holding the legal and equitable title separately if his
interests require such severance.
Approved in Tolman v. Smith, 85 Cal. 289, 24 Pac. 746, reaffirming
rule; Bexar Bldg. etc. Assn. v. Newman (Tex. Civ.), 25 8. W. 464,
junior mortgagee is not required to tender a prior mortgagee the
amount of his mortgage to obtain a sale of the equity of redemption.
65 Tez. 377-^82, BAKEB ▼. BBOWN.
Use of Water for Irrigation is subordinate to use for natural wants
by coproprietor, his family, tenants and stock.
Beaffirmed in Watkins Land Co. v. Clements, 98 Tex. 586, 588, 107
Am. St. Bep. 653, 86 S. W. 735^ 737, 70 L. B. A. 964, reversing
Clements v. Watkins Land Co., 36 Tex. Civ. 348, 82 8. W. 669, Meng
V. Coffee, 67 Neb. 514, 515, 108 Am. St. Bep. 697, 93 N. W. 718, 60
L. B. A. 910, Barrett v. Metcalfe, 12 Tex. Civ. 253, 33 S. W. 760.
Approved in Jones v. Conn, 39 Or. 36, 87 Am. St. Bep. 634, 64 Pac.
857, 54 L. B. A. 630, allowing riparian rights to contiguous lands
subsequently purchased. See notes, 79 Am. Dec. 642, 643; 41 L. B. A.
742.
Ten Tears' Adverse User and Occupation of riparian rights bars
entry by another on the lands.
Approved in Cape v. Thompson, 21 Tex. Civ. 689, 53 S. W. 372,
reaffirming rule; Watkins Land Co. v. Clements, 98 Tex. 584, 107
Am. St. Bep. 653, 86 8. W. 736, 70 L. B. A. 964, reversing CU^menTS
V. Watkins Land Co., 36 Tex. Civ. 346, 82 8. W. 669, holding pre-
scriptive right to diversion of water to nonriparian lands not estab-
lished; Shepard v. Galveston etc. By., 2 Tex. Civ. 539, 22 S. W. 26S,
railway right of way may be acquired by limitations. 8ee note, 93
Am. St. Bep. 712.
65 Tex. 383-405 NOTES ON TEXAS REPORTS. 1044
66 Tex. 383-389, JONES ▼. SIOTH.
An Independent Executor Is not % Necessary Party to rait IxitoIt-
ing title between an heir and one who had discharged a judgment
lien by defective sheriff's deed.
Approved in Wichita Land etc. Co. ▼. Ward, 1 Tex. Civ. 312, 21
S. W. 131, guardian is not necessary party plaintiff in suit by ward
to annul judgment, after ward becomes of age; Puckett v. Reed, 3
Tex. Civ. 352, 22 S. W. 516, where mortgagor's interest in the prop-
erty had passed from him prior to his death, his administrator is not
necessary to mortgage foreclosure where no personal judgment is
sought.
Purchaser Wlio Beceives Defective Sheriff's Deed is subrogated to
the original judgment lien.
Reaffirmed in Bruschke v. Wright, 166 111. 196, 57 Am. St. Rep. 132,
46 N. E. 818. See notes, 69 L. R. A. 44; 21 L. R. A. 48.
56 Tex. 389-393, NELSON ▼. EDWARDS.
Mandamus Is Remedy to Restore One to Ofllce from which he has
been illegally ousted, or for possession of one illegally detained, or
delivery of its papers, books, and archives.
Reaffirmed in Gouhenour v. Anderson, 35 Tex. Civ. 571, 81 S. W.
105, Johnson v. Galveston, 11 Tex. Civ. 472, 33 S. W. 151; Metsker
V. Neally, 41 Kan. 125, 13 Am. St. Rep. 271, 21 Pac. 207. See notes,
19 L. R. A. (n. s.) 54, 55; 31 L. R. A. 343.
Distinguished in Cameron v. Parker, 2 Okl. 319, 38 Pac. 29, man-
damus will not lie to try title to public office.
Mandamus will Lie Wliere Oommissioners, with discretionary
power to approve official bond, rejected it on grounds outside of their
discretion.
Approved in State v Barnes, 25 Fla. 307, 23 Am. St. Rep. 522, 5
So. 726, where officer with discretionary duty based his refusal of a
right on grounds outside of his discretion; State v. Heard, 47 La.
Ann. 1691, 18 So. 750, 47 L. R. A. 512, holding executive officers can-
not decline ministerial duties on ground that they contravene the
constitution. See note, 125 Am. St. Rep. 508.
66 Tex. 393-401, FOWLER ▼. STAQNER.
A Credible Witness to a Will is a competent witness above four-
teen years of age.
Reaffirmed in Gamble v. Butehee, 87 Tex. 645, 30 S. W. 862. See
note. 114 Am. St. Rep. 211.
Wbere Tbere are bat Two Snbscribixig Witnesses to a will, said
one of them is a devisee under it, the devise becomes a nullity and
makes the witness competent.
See note, 77 Am. St. Rep. 467.
That Two Provisions of Will were written after attestation clause
does not impair its validity.
See note, 114 Am. St. Rep. 223.
Attestation of Will must take i^ace after its execution.
Approved in Lacey v. Dobbs, 53 N. J. £q. 338, 92 Am. St. Rep.
667, 50 Atl. 497, 55 L. R. A. 580, reversing 61 N. J. £q. 583, 47 AtL
484, reaffirming rule.
66 Tex. 401-405, FULTON ▼. ROBINSON.
A Memorandum of Contract for Sals of Land is sufficient, though
in form of a receipt.
1045 J^OTES ON TEXAS EEPOBTS. 55 Tex. 405-412
EeaflSrmed in Moore v. Powell, 6 Tex. Civ. 49, 25 S. W. 474; Mor-
rison V. Dailey (Tex. Sup.), 6 S. W. 427, 428, a receipt for land sold
whicli is sufficient to identify the property sold is a sufficient
memorandum to satisfy the statute of frauds. See note, 60 Am. St.
Bep. 435.
MMnoraadnm of Contract for Sale of Land should be so certain
within itself, or by reference to other papers, as to parties and sub-
ject matter, as to be specifically performed without aid of parol.
Approved in Watson v. Baker, 71 Tex. 747, 9 S. W. 868, letters
offering sale (which was accepted), describing land as "situated 6
miles N. W. from V. Tex. consisting of 2,500 acres," and "situated
on south side of White Oak creek, one mile from the bottom," with
descriptions of buildings thereon, is sufficient description; Westmore-
land V. Carson, 76 Tex. 622, 13 S. W. 559, "beginning at west boundary
of certain headright survey and extending west sufficiently far to
embrace 500 acres," is sufficient description.
It la not Necessary that consideration of contract for sale of land9
should be expressed in writing.
Approved in Showalter t. McDonnell, 83 Tex. 160, 18 S. W. 491,
purchase price may be collected after delivery of the deeds, although
purchase was in parol.
56 Tex. 405-412, EDWABD8 ▼. NOBTON.
Property in Hands of a Becelver, pending litigation, is not subject
to levy until after final decree.
Approved in Bussell v. Texas etc. By., 68 Tex. 652, 5 S. W. 690,
Texas Trunk By. v. Lewis, 81 Tex. 9, 26 Am. St. Bep. 782, 16 S. W.
649, Premier Steel Co. v. McElawaine-Bichard Co., 144 Ind. 623, 624,
43 N. £. 879, and Gardner v. Caldwell, 16 Mont. 230, 40 Pac. 593,
all reaffirming rule; Grosscup v. German Savings ft Ix)an Soc, 162
Fed. 951, property in hands of receiver appointed in foreclosure suit
not subject to execution; Pace v. Smith, 57 Tex. 558, property in
hands of clerk of court is not subject to garnishment; Bichardson v.
Anderson, 4 Tex. Ap. Civ. 494, 18 S. W. 196, money of prisoner \n
hands of sheriff is not subject to garnishment; Cavil v. Walker, 7 Tex.
Civ. 308, 26 S. W. 855, fact that one-third purchase price of wife's
separate property was paid out of community does not subject to
execution against husband. See note, 97 Am. Dec. 306.
An Uncertain Equitable Interest ia. land is not subject to sale under
execution.
Approved in Chase v. York Co. Savings Bank, 89 Tex. 321, 59 Am.
St. Bep. 54, 36 S. W. 409, 32 L. B. A. 785, reaffirming rule; Moser v.
Tucker, 87 Tex. 96, 26 S. W. 1045, an unassignable leasehold is not
subject to execution. See note, 71 Am. St. Bep. 370.
Purchaser Pendente Ute who intervenes has no right to a continu-
ance.
Beaffirmed in Norris v. He, 152 111. 205, 43 Am. St. Bep. 244, 38
N. E. 766. See note, 56 Am. St. Bep. 859.
Intenrening Purchasers Pendente Ute cannot object to allowance
of a suppressed deposition of defendant, whose interests they pur-
chased, to prove admission made by him.
Beaffirmed in Parker v. Chancellor, 78 Tex. 526, 15 S. W. 158.
65 Tex. 412-452 NOTES ON TEXAS EEPORTS. 1046
66 Tex. 412-422, 40 Am. Bep. 814, MILLER ▼. MORBI&
Under Oovenant to Qiye Lessor Peaceable Possession in as good
oondition as when delivered, leesee is not responsible for casual loss
of the property by fire.
Approved in Daggett t. Webb, 30 Tex. Civ. 416, 70 S. W. 458,
applying rule where loss by flood; Bowler v. Ahlo, 11 Haw. 360, apply-
ing rule to loss of vessel. See notes, 95 Am. Dec. 122; 2 Am. St.
Bep. 368; 64 L. B. A. 659; 32 L. B. A. 615.
Distinguished in Mitchell v. Hancock County, 91 Miss. 419, 124
Am. St. Bep. 706, 45 So. 572, 15 L. B. A. (n. s.) 833, contractor
promising to rebuild bridge removed from any causOi must rebuild
bridge destroyed by unprecedented flood.
56 Tex. 42S-127, OLIVE ▼. BEYIL.
Heirs Claiming Title to Iiand under ten years statute of limitations
may tack their possessiou to that of ancestor.
Approved in McLavy v. Jones, 31 Tex. Civ. 356, 72 S. W. 403,
applying rule to heir and devisee under fLve years statute.
65 Tez. 427-430, THOMPSON ▼. PINE.
Writ of Error will be Dismissed unless all defendants in error
have been cited.
Approved in Barnard t. Tarleton, 57 Tex. 404, Weems ▼. Watson,
91 Tex. 39, 40 S. W. 723, Leidecker v. Batto, 1 Tex. Ap. Civ. 472,
Scarborough v. Groesbeck (Tex. Civ.), 25 S. W. 687, Curlin ▼. Cans-,
dian etc. Mtg. Co. (Tex. Civ.), 37 S. W. 485, Weems v. Watson
(Tex. Civ.), 39 S. W. 136, and Syder v. Duran, 2 Posey U. C. 305, all
reaffirming rule; State Nat. Bank" v. City of Dallas, 28 Tex. Civ. 301,
68 S. W. 336, acceptance of service by firm insufficient; Young v.
Bussell, 60 Tex. 687, appeal bond must be made payable to all the
the parties not appealing whose interests are adverse to appellant.
66 Tez. 433-437, HUNTEB ▼. WOOLDEBT.
Mortgagor is Entitled to "Overplus" resulting from sale of home-
stead under mortgage with power to sell.
Approved in Smith v. Wright, 13 Tex. Civ. 485, 36 S. W. 326, widow
does not abandon homestead by executory sale reserving vendor's
lien, where she repurchases it under foreclosure of the lien; Swayne
V. Chase (Tex. Civ.), 29 S. W. 420, proceeds from the involuntary
sale of exempt property retain that character for a reasonable time.
66 Tez. 437-447, MOBBISON ▼. OLABB:.
Property Conveyed to a Wife by Deed reciting it to be for her
sole and separate use becomes her separate property, regardless of
whether consideration was from separate or community funds.
Reaffirmed in Kahn v. Kahn, 94 Tex. 118, 58 S. W. 826. See notes,
86 Am. Dec. 639; 96 Am. Dec. 424.
66 Tez. 447-452, STATE v. SMITH.
Bight to Assess a PnbUc Tax is not such a franchise as is con-
templated by act of July 9, 1879.
Approved in International etc. By. v. State, 75 Tex. 374, 12 S. W.
687, exemption from a tax is not such franchise.
Where District Court Dismisses a Cause for want of jurisdietion,
and appellate court has no jurisdiction of subject matter, judgment
of district court will be affirmed.
1047 NOTES ON TEXAS BEPORTS. 55 Tex. 452-480
Approved in Wells v. Littlefield^ 62 Tex. 32, it is proper practice
for appellate court to reverse and remand causes and to enter up
judgments in accordance with their decisions.
Quo Warranto will not Lie to restrain officer from doing any act
claimed to be official function.
Distinguished in Ex parte Lewis, 45 Tex. Cr. 18, 108 Am. St. Rep.
929, 73 S. W. 812, person imprisoned under ordinance may test au-
thority of commissioners by habeas corpus; dissenting opinion in
State V. Guiibert, 70 Ohio St. 257, 71 N. E. 639, majority permitting
quo warranto against state creditor to test validity of inheritance
tax.
55 Tex. 452-461, OASSADAT ▼. FBANELAND.
Vendor's Bight to Saperlor Title until purchase money is paid is
not assignable by transfer of the debt.
Approved in Moore v. Glass, 6 Tex. Civ. 372, 25 S. W. 130, an«l
Toullerton v. Manchke, 11 Tex. Civ. 151, 32 S. W. 239, both reaffirm-
ing rule; Jenkins v. Cain, 72 Tex. 92, 10 S. W. 393, an assignee of
a judgment for vendor's lien has not got the superior title to the
land.
Vendor Loses His Saperlor Title to the land by an assignment
of the purchase money notes, and his repurchase of them will not
revest such lost right.
Approved in Frankland v. Cassaday, 62 Tex. 422, 423, reaffirming
rule; Milligan v. Ewing, 64 Tex. 260, to obtain rescission of such
contract, the purchase notes should be tendered for cancellation.
Qualified in Russell v. Kirkbride, 62 Tex. 457, vendor who assigns
purchase money notes holds the legal title in trust for such assignee
as well as for the vendee; Abernethy v. Bass, 9 Tex. Civ. 244, 29 S. W.
400, holding vendor may transfer superior title to assignee of pur-
chase money note after note is barred by limitations.
Miscellaneous. — Frankland v. Cassaday, 62 Tex. 418, 419, referring
to former appeal of same case.
55 Tez. 461-480, QLASSOOOK ▼. HUGHES.
Fact That Judge had Been at One Period connected as counsel
with the matters in litigation does not disqualify him.
Reaffirmed in City of Austin v. Cahill, 99 Tex. 201. 89 S. W. 552,
nnd Myers v. Bloom, '20 Tex. Civ. 556, 50 S. W. 217. See note, 25
L. B. A. 116.
In Partition, Althoogh All Interested Should be Parties* it is not
necessary to aver extent of each cotenant's interest therein.
Approved in Phillipeon v. Flynn, 83 Tex. 582, 19 S. W. 137, and
Maverick v. Burney, 88 Tex. 562, 32 S. W. 513, both reaffirming rule;
Simmons v. Spratt, 26 Fla. 463, 8 So. 126, 9 L. R. A. 343, stranger to
common title cannot found a defense on questions affecting only
tenants in common as between themselves.
Plaintiff in Partition may Obtain Partition of his interest though
partition be not made of interests of his cotenants.
See note, 83 Am. Dec. 486.
Wliere Parties Making Ancient Parol Partition are dead, their con-
duct and all circumstances of acquiescence in the partition are ad-
missible.
Approved in Mitchell v. Allen, 69 Tex. 73, 6 S. W. 746, reaffirming
rule; Gresham v. Chambers, 80 Tex. 549, 16 S. W. 328, holding facts
55 Tex. 480-484 NOTES ON TEXAS BEP0BT8. 1048
And circumstances of an ancient sale admissible to raise presumption
of such sale.
Paxol Partition of Land is not within statute of frauds.
Reaffirmed in Zanderson ▼. Sullivan, 91 Tex. 502, 44 8. W. 485. See
note, 102 Am. St. Bep. 245.
Payment of Taxes is a circumstance tending to show an ancient
parol partition.
Beaffirmed in Gamer y. Lasker, 71 Tex. 435, 9 S. W. 334.
An Ancient Document Signed by Ancestor is admissible against his
heirs as an admission of their ancestor of the facts recited in it.
Beaffirmed in Cox ▼. Cock, 59 Tex. 524.
Joint Owner of % Land Certificate may locate separately the in-
terest owned by him.
Beaffirmed in Kirby v. Estill, 78 Tex. 431, 14 S. W. 696; Jones v.
Lee, 86 Tex. 44, 22 S. W. 395; Boiler v. Beid, 78 Tex. 77, 26 S. W.
1062; Smith ▼. Estill, 87 Tex. 270, 28 S. W. 804; Myers v. Jones, 4
Tex. Civ. 332, 23 S. W. 563; Pool v. Greer, 23 Tex. Civ. 426, 58 S. W.
172; Hall v. Beese, 24 Tex. Civ. 229, 58 S. W. 979.
55 Tex. 480-484, WOFFOBD ▼. UNGEB.
IJmitatlonB Bun in Favor of Wife from maturity of note of hus-
band and wife, secured by mortgage on wife's separate estate, and
thus bar foreclosure.
Approved in Washington Life Ins. Co. v. Gooding, 19 Tex. Civ.
497, 49 S. W. 127, Acers v. Acers, 22 Tex. Civ. 586, 56 S. W. 197, and
Fuller V. Oneal, 82 Tex. 422, 18 S. W. 480, all reaffirming rule; Beat-
tie V. Keler (Tex. Civ.), 49 S. W. 409, a wife is released from lia-
bility where the husband extends the time of payment of notes with-
out her consent; Interstate etc. Loan Assn. v. Goforth, 94 Tex. 264,
59 S. W. 874, holding failure to properly certify wife's acknowledgment
is immaterial where it was properly made; San Antonio etc. Assn.
V. Stewart, 27 Tex. Civ. 303, 304, 65 S. W. 667, and Texarkana Nat.
Bank v. Hall (Tex. Civ.), 30 S. W. 74, both holding lands acquiretl
by onerous title during marriage and conveyed to the wife are pre-
sumed to be community property; Owens v. New York etc. Land
' Co. (Tex. Civ.), 32 S. W. 1060, husband cannot affect the rights of
the wife to her property. See note, 55 L. B. A. 684.
Limitations Bun in Favor of a Surety or Onarantor from time hp
is liable to suit.
Beaffirmed in Kaufman v. Wolf, 77 Tex. 253, 13 S. W. 988, and
Levy V. William, 20 Tex. 653, 49 S. W. 931.
Property Mortgaged to Secure tlie Debt of another will be treated
in all respects as a surety or guarantor.
Approved in Schneider v. Sellers, 98 Tex. 389, 84 S. W. 421, affirm-
ing on this point (Tex. Civ.), 81 S. W. 128, where husband and wife
conveyed wife's separate property to trustee to secure debt, release
of deed of trust as to community property released land; Magill v.
Brown, 20 Tex. Civ. 673, 50 S. W. 149, creditor is entitled to subro-
gation to securities held by surety.
Distinguished in Canfield v. Moore, 16 Tex. Civ. 474, 41 S. W. 719,.
holding where payment of the note secured by mortgage on wife's
property was paid out of community property, wife could not be.
subrogated.
104» NOTES ON TEXAS BEPOBTS. 55 Tex. 485-507
Husband cannot^ by Virtue of His General Anthority to manage
wife's separate propertj, revive against her a claim barred by limi-
tations.
Approved in Angel v. Miller, 16 Tex. Civ. 683, 39 S. W. 1093, re-
affirming nile; Owen v. New York etc. Land Co., 11 Tex. Civ. 294,
32 S. W. 1060, husband has no presumptive authority to affect wife's
separate estate by reason of authority to manage and sue for it.
56 Tex. 485-493, 40 Am. Bep. 818, McOBBABT ▼. aAINE&
Simple Facts of Possession and power of sale are not sufficient to
authorize third person to take property so held in pledge for debt
of factor.
Approved in Martin v. Armstrong (Tex. Civ.), 62 S. W. 84, reaffirm-
ing rule; Stott v. Scott, 68 Tex. 305, 4 8. W. 496, lien of livery-stable
proprietor does not attach to horse placed with him by one not au-
thorized and wrongfully in possession; Boberts v. Francis, 123 Wis.
85, 100 N. W. 1029, possession and control of horse by agent will
not support exchange by latter; Torrey v. McClellan, 17 Tex. Civ. 373,
43 S. W. 66, hotel-keeper's lien does not attach to drummer's samples
contained in trunks; Chapman v. First Nat. Bank, 98 Ala. 531, 13
So. 765, 22 L. B. A. 78, livery-stable keeper's lien is subordinate to
prior recorded mortgage on the animal. See notes, 42 Am. St. Bep.
48; 45 Am. St. Bep. 204; 47 Am. Bep. 520; 58 Am. Dec. 164; 14 L.
B. A. 235.
55 Tex. 493-507, BBOOKENBOBOUGH ▼. IffXSLTOK.
Finding of Oonrt of Oeneral Jurisdiction in regard to the jurisdic-
tional facts is not subject to collateral attack except where its own
record shows the contrary.
Beaffirmed in Wilkerson v. Schoonmaker, 77 Tex. 617, 19 Am. St.
Bep. 806, 14 S. W. 224; Epping v. Bobinson, 21 Fla. 48. Approved in
Stone V. Ellis (Tex. Civ.), 40 S. W. 1078, proceedings of a court hav-
ing jurisdiction of guardianship matters cannot be collaterally at-
tacked.
Sale of Oommnnlty Property nnder joint administration of estates
of husband and wife is valid.
Approved in Stephenson v. Marsalis, 11 Tex. Civ. 167, 33 S. W. 38o,
Joint administration on estates of husband and wife is proper where
there are community debts.
Under Laws of 1840, probate court could grant administration on
estates of persons not "inhabitants of or resident in the county at
time of their decease."
Approved in Templeton v. Ferguson, 89 Tex. 56, 33 S. W. 333, in
1837 probate was allowed on estate of soldier killed in April, 1836,
although residence was not in county; Ferguson v. Templeton (Tex.
Civ.), 32 S. W. 150, the jurisdiction of the probate courts of a county
is not restricted to estates of resident decedents of the county.
Purchaser of Land at Administrator's Bale is charged with notice
of prior administration sale of the certificate after its location but
before issuance of patent.
Approved in Paul v. Willis, 69 Tex. 266, 7 S. W. 359, bona fide pur-
chaser at void administration sale acquires no title.
Purchaser at Second Administration Sale, although chargeable with
notice of first sale, may be such purchaser in good faith as is entitled
to payment for valuable improvements.
55 Tex. 508-536 NOTES ON TEXAS BEP0BT8. 1050
Approved in Van Zandt v. Brantley, 16 Tex. Civ. 424, 426, 42 S.
W. 619, 620, possessor under void sale by agent of grantor may reeover
for improvements in good faith.
Miscellaneous. — ^Harris v. Spence, 70 Tex. 620, see 8 S. W. 315,
erroneously cited to point that, in absence of statement of facts,
judgment will not be reversed for excluded testimony unless shown
to be material.
56 Tex. 508>fi20, GASTON ▼. BASHIEIJ:..
Parties aro Chargeable Witb Notice of OcmteotB of Deeds and in-
struments through which they deraign title.
Approved in Christian v. Hughes, 12 Tex. Civ. 626, 36 8. W. 300,
reaffirming rule; Dority v. Dority, 96 Tex. 221, 71 8. W. 963, 60 L.
B. A. 941, husband cannot lease wife's separate realty for more than
one year; Stiles v. Japhet, 84 Tex. 98, 19 8. W. 453, record of deed
from wife to husband is no notice of its contents.
Beconveyance by Purchaser, shortly after or on same day of sale,
to trustee who sold to him, is not evidence on its face to subsequent
purchaser that the trustee bought indirectly of himself.
Approved in Heidenheimer v. Stewart, 65 Tex. 323, reaffirming rule;
Cook V. Caswell, 81 Tex. 683, 17 S. W. 387, where the record contained
recitals which would have put purchaser on his guard as to relation-
ship of preceding grantors, grantee is charged with notice; dissent-
ing opinion in Western Mortgage etc. Co. v. Ganzer, 63 Fed. 663,
majority holding knowledge on part of loan company's agent of
simulated sale to procure purchase money notes to be discounted as
not affecting principal.
Where from Whole Case No Other Verdict could have been rendered,
judgment will not be reversed for charge upon weight of evidence.
Beaffirmed in Atkinson v. Ward, 61 Tex. 385; Bowles ▼. Brice, 66
Tex. 731, 2 S. W. 733; Lee v. Welborne, 71 Tex. 502, 9 S. W. 472.
55 Tez. 520-526, HAU. ▼. DOTSON.
Wife, When Joined by Husband, may encumber her separate estate
to secure debt of a third party.
Approved in Kutch v. HoUey, 77 Tex. 224, 14 S. W. 35, and Wil-
kinson V. Bowland, 3 Tex. Ap. Civ. 31, both holding wife may mort-
gage her separate estate to secure prior debts of husband. See valu-
able note in 86 Am. Dec. 628.
55 Tez. 62&-^36, WOODLEY ▼. ADAMS.
Judgment for Community I>ebt against surviving wife in her repre-
sentative capacity as independent executrix is binding as against the
heirs of the husband.
Approved in Carter v. Connor, 60 Tex. 60, White v. Waco Bldg.
Assn. (Tex. Civ.), 31 S. W. 59, both reaffirming rule; Barrett v. East-
ham, 28 Tex. Civ. 190, 67 S. W. 199, where husband's mortgage of
community homestead was foreclosed after wife's death, her heirs
had no rights in property; Osborne v. Bobinson (Tex. Civ.), 35 8. W.
327, a survivor of a community administers the estate free of con-
trol. See note, 19 L. B. A. 234.
The Bights of a Survivor of the Community Property of husband
and wife are similar to those of a surviving partner of an ordinary
copartnership.
Approved in Walker v. Abercrombie, 61 Tex. 74, reaffirming rule;
Western Union Tel. Co. v. Kerr, 4 Tex. Civ. 284, 23 S. W. 565, sur-
1051 NOTES ON TEXAS REPORTS. 55 Tex. 53^571
viving wife may sue for nondelivery of telegram sent during lifetiibe
of her husband.
It is Donbtful Whether a Judgment rendered against executors im-
der act of 1848, where provisions of that act have not been fully com-
plied with, would be void.
Approved in Wingfield v. Hackney, 95 Tex. 495, 6& S. W. 265, after
marriage of widow administering community estate, execution would
not issue on judgment against her as survivor obtained before second
marriage; Wood v. Mistretta, 20 Tex. Civ. 240, 41 S. W. 239, juris-
diction of probate court will be presumed after forty years, although
will provided for independent execution.
66 Tex. 636-544, WATSON ▼. AIKEN.
Oonetttational Provision Declaring Interest in excess of twelve per
cent usurious, rendered illegal any contract made after its adoption,
although before legislative enactment thereon.
Approved in Hemphill v. Watson, 60 Tex. 682, Quinlan ▼. Smye,
21 Tex. Civ. 158, 50 S. W. 1069, both reaffirming rule.
Where a S«iewal Note was for the amount of the loan, with eigh-
teen per cent interest up to a pretended purchase at sheriff's sale, less
a payment then made, calculating interest at same rate on balance
to maturity of new note, it is nsurious.
Approved in Bexar Bldg. etc. Assn. v. Seehe (Tex. Civ.), 40 S. W.
876, a contract in renewal of a usurious contract is usurious when it
agrees to pay more than was due on the balance of the original
contract.
56 Tex. 646-^60, SEAT ▼. HUNT.
Eligibility to Office and Determination of Besnlt of an election may
be delegated to a city council, and their decision thereon cannot be
revised by quo warranto.
Approved in Krakauer v. Caples, 5 Tex. Civ. 267, 23 S. W. 1038,
reaffirming rule; Buckler v. Turbeville, 17 Tex. Civ. 121, 43 8. W.
810, writ of error does not lie in contested election case. See note,
16 Am. St. Rep. 223.
65 Tex. 560-663, HATS ▼. SAMUELS.
Possession of Acceptances by Party on whom they are drawn is pre-
sumptive that he had paid them.
Reaffirmed in Perez v. Bank of Key West, 36 Fla. 471, 18 So. 592;
Mynes v. Mynes, 47 W. Va. 691, 35 S. E. 939. Approved in Texas
Land etc. Co. v. Cooper (Tex. Civ.), 67 S. W. 176, fact that notes
were in possession of maker, indorsed in blank by payees, should
have put defendant on inquiry.
To Constitute a VariaJice, the misdescription of the acceptances
must be such as to mislead or surprise the adverse party.
Approved in Smith v. Shinn, 58 Tex. 3, "George W. Lernoyne" and
"George W. Lernoyn" is not a fatal variance; Washington v. First
Nat. Bank, 64 Tex. 6, allegation of indorsement in words "payment
guarantee" and proof of "payment guaranteed " is immaterial; Krue-
ger V. Klinger, 10 Tex. Civ. 581, 30 S. W. 1089, in regard to place of
payment of note.
56 Tex. 663-^71, GLAZE ▼. WATSON.
Foreclosure of Vendor's Lien to satisfy one purchase money note
does not affect holders of other purchase money notes not parties to
the suit.
55 Tex. 571-582 NOTES ON TEXAS BEPOBTS. 1052
Beaffirmed in McMichael v. Jarvia, 78 Tex. 672, 15 8. W. Ill; Stell
V. Lewis, 2 Posey U. C. 533. Approved in Soule v. BatcliflF, 33 Tex.
Civ. 261, 76 S. W. 584, better practice to bring in all holders of ven-
dor's lien notes.
Vendor's Iiien is not Waived by substitution of vendor's creditor
as payee of part of purchase money notes.
Approved in Joiner v. Perkins, 59 Tex. 303, reaffirming rule;
Farmers' etc. Nat. Bk. v. Taylor, 91 Tex. 82, 40 S. W. 880, mechanic's
lien is not waived by taking mortgage on the property nor by suing
on the note and mortgage without claiming the lien.
65 Tex. 671-577, JOHNBON ▼. C&AWIi.
Sheriff's Sale may be Set Aside where it occurred at an unusual
hour during inclement weather and property was sold for less than
its value and less than the judgment.
Approved in Hughes v. Duncan, 60 Tex. 75, where the property was
sold for only about one fortieth of its value; Kauffman v. Morris, 60
Tex. 123, where the property was sold for one-twelfth of its value and
there were other unfair circumstances; Lee ▼. Texas etc. B. B., 22
Tex. Civ. 504, 55 S. W. 978, where property worth fifteen hundred
dollars was sold for fifty-one dollars at sale half hour earlier than
usual and to purchaser who was closely connected with the sheriff;
Haunson v. Nelms, 109 Ga. 805, 35 8. E. 228, where property worth
two thousand dollars was sold for one hundred dollars, after defend-
ant in execution had been informed that sale would be postponed
because of affidavit of illegality; Davis v. Chicago Dock Co., 129 HI.
189, 21 N. E. 831, where block of real estate worth three hundred
and fifty thousand dollars was sold in solido for judgment of seven-
teen dollars and twenty-five cents, where debtor had ample personal
property; Houghton v. Bice, 15 Tex. Civ. 568, 40 S. W. 1058, where
property of an insane person was sold for an inadequate considera-
tion.
Assignments of Error in General Terms in violation of rule 26 will
be considered as waived.
Approved in Godair v. Tillar, 19 Tex. Civ. 547, 47 S. W. 557, re-
affirming rule; Handel v. Kramer, 1 Tex. Ap. Civ. 473, assignments
of errors must be specific.
Both Bill of Exceptions and Appellant's Brief should show the ob-
jection and ruling as to exclud«d testimony.
Beaffirmed in Lindsay v. State, 27 Tex. Civ. 545, 66 S. W. 335,
Watson V. Williamson (Tex. Civ.), 76 S. W. 794, Metropolitan Life
Ins. Co. V. Gibbs, 34 Tex. Civ. 134, 78 S. W. 400, Western Union Tel.
Co. V. Arwine, 3 Tex. Civ. 157, 22 S. W. 105, Cabell v. Holloway, 10
Tex. Civ. 310, 31 S. W. 203, Texas etc. Coal Co. v. Lawson, 10 Tex.
Civ. 500, 31 S. W. 847, Kolp v. Specht, 11 Tex. Civ. 689, 33 S. W.
715, Cunningham v. Holt, 12 Tex. Civ. 158, 33 S. W. 984, Schlock v.
San Antonio (Tex. Civ.), 57 S. W. 893, and International etc. By.
V. Jones (Tex. Civ.), 60 S. W. 978.
55 fez. 577-582, BAKEB ▼. BAKEB.
In Determining Whether Deed is to community or separate estate,
contemporaneous circumstances and declarations of those having
power to control it at its execution are admissible.
Approved in Cobb v. Trammell, 9 Tex. Civ. 534, 30 8. W. 485, fact
that husband settled adverse claim to wife's separate property by
1053 NOTES ON TEXAS BEPOBTS. 55 Tex. 582-611
giving his notes therefor, where he had ample funds of wife and in-
tended interest acquired to belong to wife, does not make it com-
munitj. See notes, 86 Am. Dec. 640, 641; 126 Am. St. Bep. 123.
65 Tex. 582-^87, OAMBBELL ▼. STEELE.
Owner of Homestead Is not Entitled to Acquire Land as a pre- emp-
tor, although homestead purchase money is unpaid.
Beaffirmed in Horm v. Shamblin, 57 Tex. 244; Garrison ▼. Orant,
67 Tex. 603; Johnson v. Townsend, 77 Tex. 643, 14 S. W. 234; Baker
V. Burroughs, 2 Tex. Civ. 340, 21 S. W. 296.
AlMmdonment of it Pre-emption Claim before perfection of title sub-
jects it to subsequent location.
Approved in Daughty v. Hall, 59 Tex. 520, reaffirming rule; Cal-
vert V. Bamsej, 59 Tex. 491, abandonment of pre-emption claim be-
fore three years' occupancy forfeits all pre-emption privileges;
McCarthy v. Gomez, 85 Tex. 16, 19 S. W. 1001, failure to make ac-
tual settlement or to occupy forfeits pre-emption claim.
Patent la Prima Facie Evidence of right to land.
Approved in Witherspoon v. Olcott, 119 Fed. 176, Texas patent
regularly issued not void, though based on survey of unqualified sur-
veyor.
55 Tex. 587-694, WIMBEBLT ▼. PABST.
Bona Fide Purchaser from or Under Patentee is not charged with
notice of latent defects in transfer of the land certificate.
Approved in Durst v. Daugherty, 81 Tex. 653, 17 S. W. 389, reaffirm-
ing rule; Bogart v. Moody, 35 Tex. Civ. 3, 79 S. W. 634, certificate sold
under void probate order.
Explained in Creswell Banche etc. Co. v. Waldstein (Tex. Civ.),
28 S. W. 262, where the records disclose the existence of two titles,
persons claiming under the junior title are chargeable with notice.
Distinguished in Barker v. Swenson, 66 Tex. 411, 1 S. W. 120, ad-
verse possession of an unlocated land certificate for two years does
not give title to the land to be acquired under it; Cook v. Caswell,
81 Tex. 684, 17 S. W. 387, where purchaser had constructive notice
by decree of partition of claims of the heirs.
Wife's Claim to Land by Beaaon of Land Certificate, being dom-
munity property, is a stale demand after twenty years from issuance
of patent to her husband's assignee.
Beaffirmed in Wichita Land etc. Co. v. Ward, 1 Tex. Civ. 311, 21
S. W. 130.
56 Tez. 695-611, HUDSON ▼. M0BBI88.
Assignee of Judgment may use assignor's name to direct its enforce-
ment.
Approved in Bludworth v. Poole, 21 Tex. Civ. 555, 53 S. W. 719,
reaffirming rule; Hamburg v. Liverpool etc. Ins. Co., 42 Fla. 93, 27
So. 874, permissible to strike out nominal plaintiff and permit suit
to proceed in name of use plaintiff; Smith v. Perkins, 81 Tex. 157,
26 Am. St. Bep. 798, 16 S. W. 807, an execution for costs is properly
issued in name of party recovering costs. See notes, 78 Am. St. Bep.
47; 46 L. B. A. 803.
Assignor of Judgment is not a Necessary Party to suit to set it
aside or enjoin its enforcement.
Beaffirmed in Wichita Land etc. Co. v. Ward, 1 Tex. Civ. 312, 21
S. W. 131.
65 Tex. 611-626 NOTES ON TEXAS BEPOBTS. 1054
Althoagli Interrenor Is not Boimd by statement of facts not signed
bj her, still where she adopts allegations of plaintiff and prays for
same remedies, she will be affected by the judgment therein.
Approved in Bruce v. First Nat. Bank, 25 Tex. Civ. 298, 60 S. W.
1080, where one party did not agree to statement of facts, it can
only be considered with reference to rights of parties agreeing to it.
To Obtain % Reversal for an Erroneous instruction it must be clearly
shown that the jury were misled by it.
Approved in Brown v. Perez (Tex. Civ.), 25 S. W. 982, reaffirminir
rule; Patterson v. Frazer, 100 Fed. 105, 94 S. W. 326, reversal for
misstatement of alleged slanderous language; Galveston etc. By. v.
Sullivan (Tex. Civ.), 42 8. W. 569, a judgment will be reversed where
an improper issue was submitted, and it is not clear that the verdict
was not rendered thereon; Born v. Texas etc. By. (Tex. Civ.), 39
S. W. 171, judgment will be reversed where an erroneous instruction
was given which might have misled the jury.
65 Tex. 611-626, UNN ▼. ABAMBOULD.
There can be No FinAl Judgment from which an apjteal or writ of
error could be prosecuted until all the issues as to all the parties have
been finally adjudicated.
Approved in Masterson v. Williams (Tex. Sup.), 11 S. W. 531,,
Frank v. Tatum (Tex. Civ.), 20 S. W. 870, Burch v. Burch (Tex.
Civ.), 28 S. W. 828, Otto v. Halff (Tex. Civ.), 32 S. W. 1052, American
etc. Mach. Co. v. Crockett (Tex. Civ.), 49 S. W. 252, Davis v. Martin
(Tex. Civ.), 53 8. W. 599, and Wadley v. Johnson, 2 Posey U. C. 740,
all reaffirming rule; Biddle v. Bearden, 36 Tex. Civ. 97, 80 S. W. 1062,
whether counterclaim properly pleaded immaterial as to finality of
judgment; Stewart v. Lenoir, 31 Tex. Civ. 470, 72 S. W. 619, where
case, as to codefendant not served, continued; Bailroad Commission
V. Weld (Tex. Civ.), 66 S. W. 127, judgment not final which merely
finds regulation of freight rates by commission unjust; Crockett v.
Crockett, 132 Iowa, 394, 106 N. W. 947, decree in divorce suit fixing
custody of children cannot be changed unless a positive wrong would
result; International etc. B. B. v. Smith Co., 58 Tex. 76, judgment
merely dissolving temporary injunction and for costs is not such final
judgment as will support an appeal; Bradford v. Taylor, 64 Tex. 171,
where judgment in remanded case, appealed by one defendant, on
second judgment made no disposition as to defendant who had ap-
pealed, it is not final; Wootters v. Kauffman, 67 Tex. 497, 3 S. W. 468,
judgment against one defendant, where verdict is set aside as to
others and case continued as to them, is not final; Texas etc. By. v.
Fort Worth St. By., 75 Tex. 84, 12 S. W. 978, dismissal of petition for
injunction with costs in favor of defendant, where no disposition is
made of plea in reconvention, makes no final judgment; Mills v. Paul,
1 Tex. Civ. 421, 23 S. W. 190, where several cases were consolidated,
but certificate to transcript omitted several while purporting to give
all, appeal will be dismissed for want of final judgment; Mills v. Paul,
4 Tex. Civ. 504, 23 S. W. 396, where nine separate suits against same
defendant were consolidated by the court, and four were disposed
of by separate verdicts and judgments, but record shows no dis-
position of the other five, the judgments so entered are not final;
Schintz V. Morris, 13 Tex. Civ. 587, 593, 35 S. W. 519, 522, new
trial as to part of a case opens up the entire case, and it then
stands as if no trial was had; State Nat. Bk. v. Waxahachie Nat^
1055 (P^OTES ON TEXAS BEPOBTS. 55 Tex. 626-643
Bk.y 14 Tex. Civ. 144, 35 S. W. 1083, where petition sought specific
relief against one of several defendants, but judgment did not dis-
pose of him as to cause of action set forth, it is not final; Davis
v. Martin, 15 Tex. Civ. 62, 53 S. W. 599, where judgment failed to
dispose of rights of all the parties; Hume v. Schintz, 16 Tex. Civ.
519, 40 S. W. 1071, only one final judgment shall be given in the
suit; Thomas v. Hawpe, 25 Tex. Civ. 536, 62 8. W. 786, order over-
ruling demurrer in suit contesting administrator's account on ground
that account approved at previous term was final is not appealable;
Sydec v. Duran, 2 Posey U. C. 305, judgment "that plaintiffs tako
nothing by their suit" is final; dissenting opinion in Darnell ▼. Lyon,
85 Tex. 465, 22 S. W. 308, holding appellate court cannot pass on bear-
ing of certified questions upon the ultimate decision of the case. 8ee
monographic note, 60 Am. Dec. 428.
Distinguished in Blum v. Schram, 58 Tex. 528, where the judgment
appealed from made final disposition of all matters presented by the
pleadings; Whittaker v. Gee, 63 Tex. 437, where the judgment as to
one of the parties was omitted by mistake, but amended after the
term, but subsequent to the appeal.
66 Tex. 626-643, UNDSAT ▼. JAFFBAT.
Testimony is Admissible to Prove that when purchaser bought a
certain land certificate it was accompanied by a written transfer from
previous holders.
Approved in Capp v. Terry, 75 Tex. 401, 13 8. W. 56, instance
where copy of transfer of land certificate in connection with other
circumstances was admissible to prove execution of original.
Wbere Patent was Issued In Name of one who had died thirty years
before, in trespass to try title defendant cannot show equitable
title from heirs of patentee when plaintiffs had possession and ap-
parent ownership of the land certificate at issuance of patent.
Approved in Satterwhite v. Bosser, 61 Tex. 173, holding patent to
original grantee inures to benefit of assignee of certificate except
where rights are asserted by subsequent bona fide purchaser from
grantee.
Bona Fide Pnrchaser Under Second Probate Sale acquires no title
as against purchaser at first sale, where such first sale was regular.
Approved in Brockenborough v. Melton, 55 Tex. 506, reaffirming
rule; Burkett v. Scabborough, 59 Tex. 498, holding grant by land
commissioners in 1838 to heirs under their ancestor's headright certifi-
cate is conclusive in collateral proceeding; Moore v. Perry (Tex. Civ.),
56 8. W. 121, a purchaser under a void judgment acquires no title.
See note, 23 Am. 8t. Bep. 116.
Objections to an Interrogatory in a deposition may be made orally
at the trial where the answer is not responsive.
Beaffirmed in Tevis v. Armstrong, 71 Tex. 63, 9 8. W. 136.
Judgment Bendered by the Court, where jury was waived, will not
be reversed because of introduction of improper evidence.
Approved in Jones v. Day, 40 Tex. Civ. 162, 88 8. W. 426, Cole v.
Noble, 63 Tex. 433, Barnes v. Downes, 2 Tex. Ap. Civ. 475, and Wells
V. Burts, 3 Tex. Civ. 436, 22 8. W. 421, all reaffirming rule; Phoenix
Assur. Co. V. Friedman (Tex. Sup.), 19 8. W. 1012, a judgment will
not be reversed because illegal evidence is admitted when there is
sufficient evidence to support it.
65 Tex. 644-648 NOTES ON TEXAS REPORTS. 1056
AUegation of Petition, Stating Firm Kamo and individuals com-
prising firm, need not be proved unless denied under oath.
Approved in Good v. Galveston etc. Ry. (Tex. Sup.), 11 S. W. 855,
International etc. By. ▼. Tisdale, 74 Tex. 16, 11 S. W. 902, 4 L. R. A.
545, both reaffirming rule.
A Conveyance of Land to **£. S. Jaffray & Go." vests the legal title
in "E. S. Jaffray" in trust for the partners composing the firm.
Approved in Schwab Clothing Co. v. Clounch (Tex. Civ.), 29 S. W.
922, a trust deed executed by one partner with the consent of the
other creates a valid lien.
Wbere Becitala in an Order for Sale of Land correct a misdescrip-
tion as to county wherein land is situated, the mistake becomes im-
material.
Reaffirmed in Collins v. Ball, 82 Tex. 266, 27 Am. St. Rep. 882, 17 8.
W. 616.
65 Tex. 644-648, STEWABT ▼. HEIDENHEIMER.
That Affidavit of Inability to Secure Costs on Appeal was filed
without notice to opposing party is not sufficient to dismiss appeal.
Approved in Proctor v. San Antonio etc. Ry., 26 Tex. Civ. 150, 62
8. W. 939, reaffirming rule; Smith v. Buffalo Oil Co., 99 Tex. 78, 87
8. W. 660, if affidavit be taken before trial judge and embraced in
record, action of court need not appear; Graves v. Horn, 89 Tex. 78,
33 8. W. 322, mere filing of affidavit of inability to pay costs on ap-
peal with the clerk is not compliance with statute.
Variances of Three DoUara in Amount of plaintiff's demand in
petition and amount stated in affidavit for attachment is not fatal.
Approved in Smith v. Mather (Tex. Civ.), 49 8. W. 258, following
rule; Evans v. Lawson, 64 Tex. 201, where petition in suit calls for
interest and attorney's fees in addition to principal, but is not sworn
to, affidavit for attachment for principal alone is not a variance. See
note, 107 Am. St. Rep. 897.
Distinguished in Sanger v. Texas Gin etc. Co. (Tex. Civ.), 47 S. W.
740, a writ of attachment issued for an amount in excess of the
amount stated as due in the petition is fatal.
An Affidavit That Party Appealing is unable to pay the costs is
sufficient without adding "or any part thereof."
Reaffirmed in Kirk v. Ivey, 2 Tex. Ap. Civ. 39; Duffy v. Cagle, 3
Tex. Ap. Civ. 492.
Distinguished in Pendley v. Berry, 95 Tex. 72, 74, 65 8. W. 32, 33,
one found able to pay part of coats cannot appeal without bond or
payment to extent of his ability.
NOTES
ON THK
TEXAS REPORTS.
CASES IN 56 TEXAS.
56 Tex. 1-9, BOOEBS ▼. BLUM.
Tifle to Land Does not Pass Under Bond to make title on payment
of purchase price until payment.
Approved in MilHgan v. Ewing, 64 Tex. 260, holding vendor cannot
recover land without offer to return consideration; Hale v. Baker, 60
Tex. 219, holding superior title remains in vendor under executory
contract until payment.
Vendor may Cut Off Bight to Bescind Executory Contract for sale
of land by transferring notes given to secure purchase money.
Approved in Joiner v. Perkins, 59 Tex. 303, reaffirming rule; Russell
V. Kirkbride, 62 Tex. 457, holding purchaser takes good title under sale
on foreclosure of vendor's lien notes after assignment; Hamblen v.
Folts, 70 Tex. 136, 7 S. W. 836, holding vendor assigning purchase
money notes becomes trustee of legal title for assignee; Meyer v.
Smith, 3 Tex. Civ. 41, 21 S. W. 996, holding vendor's lien grows out
of sale of land itself.
56 Tex. 9-17, HUNT ▼. MABIEMSON.
Demand for a Jury Should be Made when the ease is first called.
Approved in Gruger v. McCraeken (Tex. Civ.), 26 S. W. 283, fol-
lowing rule.
56 Tex. 17-22, BAINEY ▼. CHAMBEBS.
Title to Homestead Vesta in Wife on death of husband, she being
only constituent of family, and purchaser from her takes good title.
Approved in Watson v. Bainey, 69 Tex. 322, 6 S. W. 841, holding
homestead on death of insolvent husband vests in widow exempt
from execution; Lacy v. Loekett, 82 Tex. 193, 17 8. W. 917, holding
daughter on death of widow of insolvent husband takes homestead
exempt from execution; Kreuger v. Wolf, 12 Tex. Civ. 177, 33 8. W.
668, holding on widow's death, daughter of insolvent entitled to
allowance in lieu of homestead.
Deed from Mother to Son reciting consideration paid, and love and
affection, is executed contract.
Approved in Billings v. Warren, 21 Tex. Civ. 80, 60 8. W. 627,
holding grantee discharging trust in deed takes full title to land;
2 Tex. Notee— 67 ( 1057)
66 Tex. 22-40 NOTES ON TEXAS EEPOBTS. 105S
Brafi^don v. Blaisdell, 91 Me. 329, 39 Atl. 1037, holding conveyance of
quarry with condition regarding management passes full title.
Minor is not Estopped by any acts of guardian done without au-
thority of probate court.
Approved in Stephenson v. Chappell, 12 Tex. Civ. 300, 36 S. W.
484, reaffirming rule; Davis v. Beall, 21 Tex. Civ. 186, 50 S. W. 1088,
guardian cannot compromise claim without consent of court.
Miscellaneous. — Cited in Watson v. Bainey, 69 Tex. 321, 6 8. "W.
841, as adjudicating title to same property. See note, 1 L. B. A. 380.
66 Tex. 22-36, CAMOBON T. THURMOND.
Court may Bnter Judgment Nunc Pro Tunc only on absolute and
definite proof that it was rendered, showing rendition and terms.
Approved in Wheeler v. Duke, 29 Tex. Civ. 24, 67 8. W. 911, order
of probate court in guardianship not entered on any record during
term, nullity, and cannot afterward be entered nunc pro tune; Blum
v. Neilson, 59 Tex. 380, holding order granting motion to make
statement of facts cannot be entered at subsequent term unless mem-
orandum of order shown; Schintz v. Morris, 13 Tex. Civ. 588, 35 S.
W. 519, holding part of judgment being vacated, whole case should
be retried; Meyer Bros. Drug Co. v. Coulter, 18 Tex. Civ. 688, 46 S. W.
650, holding judgment cannot be so corrected as to contradict docket
entry of decision; Frank v. Tatum (Tex. Qiv.}, 23 S. W. 313, court
can enter a judgment nunc pro tunc when it only failed of entry,,
after ascertaining that fact by evidence. See note, 20 L. B. A« 145.
Deed of One Tenant in Common to specific portion of common prop-
erty is not void, but is binding^ so far aa nonprejudicial to rights of
cotenants.
Approved in Maverick v. Burney, 88 Tex. 561, 32 S. W. 512, re-
affirming rule; New York etc. Land Co. v. Hyland, 8 Tex. Civ. 606,
28 S. W. 207, holding sale by one tenant being confirmed by cotenants,
vendee not necessary party in partition suit; Ferris v. Montgomery
Land etc. Co., 94 Ala. 568, 33 Am. St. Bep. 153, 10 So. 611, holding
cotenant's vendee making improvements entitled to part improved if
nonprejudicial to cotenants; Mee v. Benedict, 98 Mich. 265, 39 Am.
St. Bep. 546, 57 N. W. 176, 22 L. B. A. 641, holding cotenant's grantee
takes title to timber where all cotenants, with notice, convey fee.
Compromise of Claim made in good faith, without concealment,
misrepresentation, or fraud, is eufficient foundation for a contract.
Approved in Currens v. Lauderdale, 118 Tenn. 504, 101 S. W. 433,
and Pegues v. Haden, 76 Tex. 99, 14 S. W. 172, both reaffirming rule;
Mee V. Benedict, 98 Mich. 272, 39 Am. St. Bep. 552, 57 N. W. 179,
22 L. B. A. 641, in concurring opinion, reaffirming rule; Taylor v.
Taylor (Tex. Civ.), 54 S. W. 1049, a compromise made upon receipt
of less than one is entitled to will not be set aside on that account;
Moore v. Bivins (Tex. Civ.), 33 S. W. 881, a settlement which is harsh
or unequal will not be set aside for that reason. See note, 100 Am.
St. Bep. 650, 653.
56 Tex. 36-40, BYAK y. WILSON.
Minor Heir Takes Estate Free from Equitiefl arising for improve-
ments made under verbal sale of land by ancestor.
Approved in Westmoreland v. Carson, 76 Tex. 623, 13 S. W. 560,
holding evidence of parol contract for sale of house and lot properly
excluded.
1059 NOTES ON TEXAS REPORTS. 56 Tex. 41-66
fi6 Tex. 41-54, HOLMES ▼. JOHNS.
under Colonization Laws, sale of land before issuance of final title
is void.
Approved in Cook v. Lindsay, 57 Tex. 69^ Grant v. Wallis, 60 Tex.
351, Brown ▼. Simpson, 67 Tex. 228, 2 S. W. 645, Branch v. Weiss, 23
Tex. Civ. 87, 57 S. W. 903, and Ellis v. Mabry, 25 Tex. Civ. 166, 60
S. W. 572, all reaflfirming rule; Buchanan v. Park (Tex. Civ.), 36 S.
W. 808, a contract to convey land which is prohibited by law from
being alienated is a nullity.
Bole That Wliere Vendor has No Title, and sells, any title afterward
procured by him inures to benefit of vendee, is inapplicable where sale
is prohibited by law.
Approved in Hinee v. Thorn, 57 Tex. 102, holding, though title of
vendee defective, purchaser's title cured by conveyance after dis-
ability removed; Adams v. House, 61 Tex. 641, holding transfer of
land covered by patent vests title in grantee when patent issues.
Bona Fide Pnrchaaer ttom Heir may be protected against unre-
«)orded deed from ancestor.
Approved in Slay ton v. Singleton, 72 Tex. 212, 9 S. W. 877; Meyer
V. Hale (Tex. Civ.), 23 S. W. 993, both reaffirming rule; Lee v. Wy-
Bong, 128 Fed. 840, in Texas evidence of bona fide purchase supports
legal rights.
Where Decedent Withdrew the Administration of his estate from
the control of the probate court, the probate court has no jurisdiction
over the executor after he has qualified and returned the inventory.
Reaffirmed in Gillespie v. Crawford (Tex. Civ.), 42 S. W. 524;
Holmes v. Sanders (Tex. Civ.), 51 S. W. 335.
Approved in Roy v. Whitoker (Tex. Civ.), 50 S. W. 493, court has
no authority to order independent executors to partition estate.
Miscellaneous. — Cited in Altgelt v. Alamo Nat. Bank (Tex. Civ.),
79 8. W. 587, as to definition of "independent executor."
66 Tez. 64-66, WATTS ▼. HOLLAliD.
In Proceeding to EstabUah NnncnpatiTe Will, where fraudulent
combination is charged, it is reversible error to refuse to put witneseee
under rule requiring them to testify separately.
Distinguished in Willis v. Nichols, 5 Tex. Civ. 157, 23 8. W. 1026,
holding motion to place only two witnesses under rule within discre-
tion of court; Schneider v. Haas, 14 Or. 177, 58 Am. Rep. 299, 12 Pac.
238, holding court without power to exclude party to suit during trial.
Denied in Chicago etc. B. B. v. Kellogg, 54 Neb. 140, 70 N. W. 404,
holding sequestration of witnesses is within sound discretion of
court.
NuncnpatiTe Wills are Tolerated by Law, and they may be estab-
lished subject to exacting conditions and restrictions.
Approved in Martinez v. Martinez, 19 Tex. Civ. 662, 48 S. W. 533,
liolding petition for probate of nuncupative will bad for failure to
allege utterance during last sickness.
Either Party t* an Action has the right to have witnesses placed
nnder th^ rule.
Approved in Gulf etc. By. Co. v. West (Tex. Civ.), 36 S. W. 102,
the right of parties to have witnesses placed under the rule is subject
to judicial discretion.
66 Tex. 66-75 NOTES ON TEXAS REPORTS. 1060
Distinguished in Loose v. State, 120 Wis. 121, 97 N. W. 528, witness
not incompetent because he violates court's order as to his presence in
court.
56 Tex. 66-75, GALVESTON ETC. B. B. T. PFEUFFEB.
Parol Evidence is Admissible to defeat right to land conveyed hj
absolute deed by establishing condition subsequent.
Approved in International etc. R. R. v. Dawson, 62 Tex. 262, Golf
etc. Ry. V. Jones, 82 Tex. 161, 17 S. W. 535, and Beaumont Car
Works V. Beaumont Improvement Co., 4 Tex. Civ. 261, 23 S. W.
276, all reaffirming rule; Byars v. Byars, 11 Tex. Civ. 567, 32 S. W.
926, holding parol testimony inadmissible to vary consideration recited
in deed; Caffey v. Caffey, 12 Tex. Civ. 619, 35 S. W. 739, holding
parol evidence inadmissible to vary estate conveyed by deed; Kahn
V. Kahn, 94 Tex. 120, 58 S. W. 827, holding parol evidence inad-
missible to defe&t deed by showing lack of consideration; Walter v.
Dearing (Tex. Civ.), 65 S. W. 380, parol evidence is not admissible to
vary the obligations of a written contract; Ha worth v. Norris, 28
Fla. 784, 786, 10 So. 23, 24, holding parol evidence inadmissible to
prove delivery of deed on condition not expressed. See note, 5 Am.
St. Rep. 200.
Distinguished in Womack v. Wamble, 7 Tex. Civ. 275, 27 S. W.
154, holding deed being absolute in form, obligation assumed by
grantee may be proved by parol.
Failure of Ballroad Compaay to Comply With Conditions wUl not
defeat absolute d«ed of right of way.
Approved in Bearrow v. Wright, 17 Tex. Civ. 644, 43 S. W. 904, re-
affirming rule.
Bigbt of Owner to Compensation for Land appropriated by railroad
for construction of roadbed is not waived by permitting company to
construct road without objection.
Approved in San Antonio etc. Ry. v. Hunnicutt, 18 Tex. Civ. 313,
44 S. W. 536, reaffirming rule; Hays v. T. & P. Ry., 62 Tex. 400,
holding statute providing for condemnation of land for railway
does not abolish action for damages; Charleston etc. Ry. v. Hughes,
105 Ga. 17, 70 Am. St. Rep. 32, 30 S. E. 979, holding remainderman
may recover damages on death of holder of life estate who gave right
of way.
Subsequent Purcliaser cannot Becover Damages against railway
company for injury from running trial lines over property.
Approved in Allen v. Macon etc. R. R., 107 Qa. 842, 33 S. E. 697,
reaffirming rule; Texas Cent. R. Co. v. Brown, 38 Tex. Civ. 611, 86
S. W. 660, applying rule where one joint owner sold to the other.
Distinguished in San Antonio etc. Ry. v. Ruby, 80 Tex. 177, 15
S. W. 1042, holding purchaser pending suit may sue railway for dam-
ages for occupying land.
In Simple Action of Trespass for injury to realty and damages,
judgment putting plaintiff in possession is erroneous.
Approved in Osborne v. Barnett, 1 Tex. Ap. Civ. 51, holding judg-
ment must conform to pleadings.
Measure of Damage for Breacb of Condition in grant of right of
way by which company agreed to build depot on land would not
1061 NOTES ON TEXAS EEPORTS. 56 Tex. 75-93
relate to value of land given, but would be only actual damage sus-
tained.
Approved in Louisville etc. By. v. Sumner, 106 Ind. 61, 55 Am. Bep.
722, see 5 N. £. 408, reaffirming rule.
66 Tex. 76-80, LOVINa T. DIXON.
One Signing a Note as Surety on condition that another would sign
the same is not bound by a subsequent verbal agreement to pay.
Approved in Bagley Lumber Co. v. Goldsmith (Tex. Civ.), 66 S.
W. 582, Carleton v. Cowart (Tex. Civ.), 45 S. W. 749, both reaffirm-
ing rule; Northern Texas Traction Co. v. Jamison, 38 Tex. Civ. 57,
85 S. W. 305, error to charge as to recovery for cost of medicine where
nothing concerning same in pleadings or proof; First Nat. Bank v.
Turner (Tex. Ap.), 15 S. W. 711, failure to perforih the conditions
upon which a note is given defeats the consideration of the note;
Traders* Nat. Bank v. Smith (Tex. Civ.), 22 S. W. 1058, giving a
note on condition that others give stock is dependent upon a com-
pliance with the condition; Merchants' Nat. Bank v. McAnulty (Tex.
Civ.), 31 S. W. 1096, parol evidence is admissible to show the condi-
tion upon which a note is held; Large v. Parker (Tex. Civ.), 56 S. W.
588, parol evidence is admissible to show the breach of condition for
which a note was given.
Distinguished in Linskie v. Kerr (Tex. Civ.), 34 S. W. 766, co-
sureties on a survivor's bond are bound, though the signature of an-
other cosurety was forged.
Verdict will be Bevened when charge of court presents question
outside of case as made by pleadings upon which jury might have
found verdict.
Approved in East Texas etc. Ins. Co. v. Brown, 82 Tex. 636, 18
S. W. 715, Texas etc. By. v. French, 86 Tex. 98, 23 S. W. 644, T. B.
A H. By. V. Montgomery, 4 Tex. Ap. Civ. 405, 16 S. W. 180, and
Gulf etc. By. v. Vieno, 7 Tex. Civ. 350, 26 S. W. 231, all reaffirming
rule; Galveston etc. By. v. Silegman (Tex. Civ.), 23 S. W. 300, error
to submit an issue not raised by the pleadings; Hall v. Johnston, 6
Tex. Civ. 116, 24 S. W. 864, holding issues not made by pleadings
improperly submitted to jury.
56 Tez. 80-89, BLUM T. WETTEBMABK.
District Court lias Jurisdiction Under Oeneral Eqoity, in suit
against assignee for benefit of creditors charged with misappropriat-
ing assets, to remove him and appoint another.
Approved in Mcllhenny v. Todd, 71 Tex. 404, 10 Am. St. Bep.
756, 9 S. W. 447, reaffirming rule; De Walt v. Zeigler, 9 Tex. Civ.
85, 29 S. W. 61, holding action against assignee under statute for
misappropriating funds must be for benefit of all creditors; Tennent
V. Davis (Tex. Civ.), 31 S. W. 255, one or more cestuis que trust can
file bills in their own behalf, and behalf of all, to make the trustee
account for the trust funds.
56 Tez. 90-^93, SAYLOB T. MABX.
Where Objection is Waived by Failure to Set It Up in motion to
dismiss within prescribed time, appeal bond executed by sureties on
cost bond is sufficient.
Approved in Sampson v. Solinsky, 74 Tex. 664, 13 S. W. 67, hold-
ing survey for costs in justice court may be surety on appeal bond;
56 Tex. 93-116 NOTES ON TEXAS REPOETS. 1062
Oason V. L&ney, 82 Tex. 318, 18 S. W. 668, holding failure to move
for dismissal for several terms waiver of defects in appeal bond;
Heidenheimer v. Bledsoe, 1 Tex. Ap. Civ. 135, holding surety on
claim bond in justice court may be surety on appeal bond; Word
V. Beither, 2 Tex. Ap. 682, 683, holding sureties on sequestration
bond competent as sureties on appeal bond; Long v. Elruger, 4 Tex.
Civ. 145, 23 S. W. 242, holding surety on injunction bond may be
surety on appeal bond; Henderson v. Brown, 16 Tex. Civ. 465, 41
S. W. 407, holding surety on replevin bond not party to suit liable
to judgment for costs; Engle v. Bowan (Tex. Civ.), 48 S. W. 757,
defendant in error waives his objection to the appeal bond when he
fails to make the motion within time.
56 Tex. 93-109, FLATAN ▼. STATE.
Time Prescribed by Statate within which person elected to of&co
shall qualify is construed to be directory.
Approved in Swenson v. McLaren, 2 Tex. Civ. 334, 21 8. W. 302,
holding provision in statute fixing time for act directory merely.
Distinguished in Gouhenour v. Anderson, 35 Tex. Civ. 571, 81 S.
W. 105, and State v. Box, 34 Tex. Civ. 438, 78 S. W. 984, both holding
rule changed by statute.
Under Section 24, Article 6 of Constitution, district court has power
to remove only those who are officers in full sense of word.
Approved in Bobinson v. State (Tex. Civ.), 28 S. W. 567, reaffirm-
ing rule; State v. Box, 34 Tex. Civ. 440, 441, 78 8. W. 985, remanding
case for new trial, though evidence conclusive against appellee's right
to further hold office; dissenting opinion in Maddox v. York, 21 Tex.
Civ. 626, 54 S. W. 26, majority holding death of sheriff-elect before
notice of election causes vacancy in office; Hannan v. Board of
Health, 153 N. Y. 522, 41 N. E. 787, holding veteran holding civil
service appointment illegally may be summarily removed.
Distinguished in Brackenridge v. State, 27 Tex. Ap. 530, 11 S. W.
632, 4 L. B. A. 360, holding judge being re-elected, acts before second
qualification are ground for removal.
66 Tex. 110-116, EASTHAM T. BOUNDTBEE.
Defendant Disclaiming All Interest in Property of estate sued for is
competent witness to acts and conversations of decedent concerning
it.
Approved in Barrett v. Eastham, 28 Tex. Civ. 192, 67 S. W. 200, and
Mayfield v. Bobinson, 22 Tex. Civ. 389, 390, 55 S. W. 401, both re-
affirming rule; Jones v. Day, 40 Tex. Civ. 162, 88 S. W. 426, in action
by heir parties to suit, who have disclaimed any interest, may testify
as to transactions with decedent.
Distinguished in Bennett v. Virginia etc. Cattle Co., 1 Tex. Civ.
323, 21 S. W. 128, holding warrantor made party to suit filing dis-
claimer not competent witness.
Where Purchaser Buys Property and, with intent to defraud cred-
itors, has deed made in name of third party, with his consent, on trust
that he will hold one-half as advancement for child, title vests in
third party and courts will not enforce trust in favor of child.
Approved in Scott v. Farmers' etc. Nat. Bank, 97 Tex. 59, 75 S. W.
16, quaere, whether directors conveying property of insolvent corpora-
tion on consideration partly inuring to themselves can recover for
breach of contract; Hunter v. Magee, 31 Tex. Civ. 306, 72 S. W. 231,
1063 NOTES ON TEXAS REPORTS. 56 Tex. 116-129
second wife claiming homestead could not impeach conveyance therexrf
to first wife as in fraud of creditors; Goodrich v. Hicks, 19 Tex. Civ.
530, 48 S. W. 799, holding no resulting trust arises in favor of fraud-
ulent foreclosure, title being taken by another; Hawley v. Geer (Tex.
Sup.), 17 S. W. 916, a resulting trust is ineffectual against an in-
nocent purchaser without notice and for value; Robb v. Robb (Tex.
Oiv.), 41 S. W. 95, a deed made to third parties to hinder creditors
passes the title absolutely; Caldwell v. Bryan, 20 Tex. Civ. 172, 49
S. W. 243, arguendo.
Distinguished in Philipowski v. Spencer, 63 Tex. 610, holding judg-
ment for defendants proper where wife's claim of separate property
not disproved. ,
No Besiilting Tnust can Arise from Acts contrary to public policy
or statute.
Approved in Farrell v. Duffy, 6 Tex. Civ. 439, 27 S. W. 21, holding
third party with knowledge taking deed from fraudulent grantee
takes title against original grantor; Olcott v. International etc. R. R.
<Tex. Civ.), 28 S. W, 734, money paid or property conveyed on an
illegal executed contract cannot be recovered; Rivera v. White, 94
Tex. 540, 63 S. W. 126, holding deeds in fraud of creditors binding
as between parties thereto. See, also, cases under preceding syllabus.
56 Tex. 116-117, ZACHABIE T. WAIJ3BOM.
Heirs Need not be Joined With Ezecutors or administrators in
suits involving title to lands.
Approved in Cuney v. Shaw, 56 Tex. 438, and Miller v. Foster, 76
Tex. 488, 13 S. W. 532, both reaffirming rule; Miller v. Foster (Tex.
Sup.), 12 S. W. 123, unnecessary to make heirs party to a suit to
vacaite a will.
Distinguished in Rudd v. Johnson, 60 Tex. 92, holding wife's heirs
not prevented from suing for community property by judgment against
husband.
56 Tez. 119-124, 42 Am. Sep. 688, WEBSTEB T. MANN.
Deposition of a Person Taken After Indictment, though before con-
viction of forgery, cannot be read in evidence if objected to.
Approved in Tillman v. Fletcher, 78 Tex. 675, 15 S. W. 162, holding
continuance for absence of witness convicted of felony properly re-
fused; St. L. I. M. & S. Ry. V. Harper, 50 Ark. 160, 7 Am. St. Rep.
87, 6 S. W. 721, holding deposition of witness taken before conviction
inadmissible after execution.
Distinguished in Doughty v. State, 18 Tex. Ap. 196, 51 Am. Rep.
306, holding depositions of witnesses subsequently indicted admissible
in evidence.
Judgment EstabUsliing Validity of Deed operates between parties
as conclusive bar in action concerning title to any property purport-
ing to pass thereunder.
Distinguished in Lockridge v. Corbett, 31 Tex. Civ. 680, 73 S. W.
98, judgment in probate declaring certain property to be part of
estate not binding in rem.
56 Tex. 124-129, BBOWN T. PBIDGEN.
Statate Requiring Will not Wholly Written by Testator to be at-
tested by two credible witnesses is construed to mean competent wit-,
nesses.
56 Tex. 130-154 NOTES ON TEXAS REPORTS. 1064
* Approved in Trezevant v. Rains (Tex. Sup.), 19 S. W. 568, Gamble
V. Butchee, 87 Tex. 645, 30 S. W. 862, both reaffirming rule. See
notes, 77 Am. St. Rep. 460.
Error not to Charge upon the Law of nndue influence where the evi-
dence shows that the deceased was laboring under mental depression
and was also under the control of defendant.
Approved in Campbell v. Barrera (Tex. Civ.), 32 S. W. 725, undue
influence may be proved by circumstantial evidence.
66 Tex. 130-132, STABK t. BUBB.
Suit for Partition of Land may be Brought in county where lands
situated or where one or more defendants reside, but if defendants
assert adverse title and recovery is sought, suit must be brought
where land lies.
Approved. in Stark v. RatdifF, 111 111. 81, holding suit being brought
in wrong county, objection deemed waived unless taken to jurisdic-
tion; First National Bank v. Geneseo Town Co., 51 Kan. 222, 32 Pac.
903, holding judgment in suit brought in wrong county cannot be
collaterally attacked.
66 Tex. 133-140, LITTLE T. ALLEK.
Contract cannot be Avoided because party influenced by mere ex-
pression of opinion found to be incorrect.
Approved in Donoho v. Equitable Life Society, 22 Tex. Civ. 198,
54 S. W. 648, reaffirming rule; Allen v. Thompson, 2 Tex. Ap. Civ.
93, holding attorney's representation on validity of title, if incorrect,
insufficient to avoid contract. See notes, 37 L. R. A. 604; 35 L. R. A.
417.
66 Tex. 141-144, TUBNEE T. 8TBAKGE.
(General Opinions of Witnesses as to damages from failure to furnish
cistern, based on loss of crops resulting, are inadmissible in evidence.
Approved in Kauffman v. Babcock, 67 Tex. 245, 2 S. W. 880, holding
jury must determine damages sustained from facts stated; Radam v.
Capital Microbe etc. Co., 81 Tex. 131, 26 Am. St. Rep. 789, 16 S. W.
992, holding court should decide effect on ordinary person of using
similar trademarks; Cleveland v. Duggan, 2 Tex. Ap. Civ. 65, holding
witness must only state facts and jury draw conclusions therefrom;
Hardin v. State, 40 Tex. Cr. 219, 49 8. W. 611, holding expert testi-
mony inadmissible to explain material facts left to jury.
56 Tex. 146-149, THOBN v. DILL.
Person has No Bights Under Homestead Olaim where he has actually
abandoned homestead and acquired and occupied another.
Approved in Baum v. Williams, 16 Tex. Civ. 408, 41 S. W. 841, hold-
ing temporary leaving of homestead, with intention of returning,
leaves homestead unaffected.
Miscellaneous. — Cited in Myers v. Evans, 81 Tex. 320, 16 S. W. 1061,
as establishing homestead principles.
66 Tex. 14»-164, 42 Am. Bep. 689, JONES T. GEOBGE.
Where Original Petition States Cause of Action, and was filed in
time, statute of limitations will not run against amendment merely
amplifying petition.
Approved in Tolbert v. McBride, 75 Tex. 97, 12 8. W. 753, holding
amendment correcting omission of formal allegations of petition
1063 NOTES ON TEXAS EEPORTS. 56 Tex. 154-162
dates from filing of original. See notes, 73 Am. Dec. 167; 90 Am.
Dec. 430.
Distinguished in Phoenix Lumber Co. y. Houston Water Co. (Tex.
Civ.), 59 S. W. 555, holding petition alleging contract, amendment
alleging legal duty sets up new cause of action.
Doctrine of Cayeat Emptor Does not Apply where article is such
that its value and property can be determined only by scientific
knowledge possessed by vendor.
Approved in Needham v. Dial, 4 Tex. Civ. 144, 23 8. W. 241, hold-
ing no implied warranty where purchaser selects article on his own
judgment. See notes, 1 Am. St. Bep. 475; 9 Am. St. Rep. 207; 16 Am.
St. Rep. 759; 102 Am. St. Rep. 625; 22 L. R. A. 196.
When Planter Loses Crop through druggist giving him wrong com-
pound for destroying cotton worm, he cannot recover as damages
estimated value of crop which might have been saved.
Approved in Kent v. Halliday Brothers, 23 R. I. 186, 49 Atl. 701,
reaffirming rule; Jones v. George, 61 Tex. 361, and Hanrick v. Han-
rick, 63 Tex. 622, both reaffirming rule; Sabine etc. Ry. v. Joachimi,
58 Tex. .460, holding measure of damages for flooding crop difference
in value before and after flooding; Houston etc. Ry. v. Hill, 63 Tex.
387, 51 Am. Rep. 645, holding probable profits not considered in
estimating damages for breach of contract. See notes, 60 Am. Rep.
488; 52 L. B. A. 236.
For Breach of ImpUed Warranty in sale of drug to destroy cotton
worm, seller is liable for actual expense of purchase, of application
of drug to cotton, loss of time, and all other actual damages resulting
as natural sequence of breach.
See note, 18 L. R. A. 386.
56 Tex. 154-162, McDOW T. BABB.
Open, Visible Appropriation of Timber under claim of title, ac-
companied by assessment as land of possessor, following by cultiva-
tion and fencing of land, with knowledge of owner^ warrants
presumption of conveyance to possessor.
Approved in Griffin v. West Ford, 60 Tex. 505, holding record of
deed, claim of title, and use of land insufficient to support claim to
community property; Fisher v. Ullman, 3 Tex. Ciy. 325, 22 S. W. 523,
holding possession of certificate with blank indorsement prior to
location prima facie evidence of title; Gibbons v. Ewer, 2 Posey U.
C. 253, holding deed executed under insufficient power of attorney
will alone convey no title.
Distinguished in Pendleton v. Snyder, 5 Tex. Civ. 431, 24 S. W. 365,
holding limitation does not run where possession, though adverse,
only occasional.
Declaration of Decedent Exercising Acts of Ownership concerning
title to land are inadmissible to sustain title of person claiming under
him.
Approved in Walker v. Pittman, 18 Tex. Civ. 524, 525, 46 S. W.
120, reaffirming rule; Matador Land etc. Co. v. Cooper, 39 Tex. Civ.
106, 87 S. W. 238, rejecting declarations of husband holding legal
title to land equitably owned by wife, in support of his own title;
Mooring v. McBride, 62 Tex. 312, holding declarations admissible to
show estate claimed, but not to support title; Wells v. Burts, 3 Tex.
Civ. 435, 22 S. W. 421, holding declaration of grantor that he claimed
property and deed was lost admissible; Western Union Tel. Co. y.
66 Tex. 162-175 (NOTES ON TEXAS EEPORTS. 1066
Hearne, 7 Tex. Civ. 70, 26 S. W. 479, holding evidence hj appellee
that he owned land should be excluded.
Distinguished in Lochridge v. Corbett, 31 Tex. Civ. 679, 73 S. W.
98, assertion of ownership admissible in connection with possession
and open acts of dominion.
Defezue of Estoppel Is Available though not specially pleaded, but
person is not estopped by declarations not influencing conduct of an-
other.
Approved in Guest v. Guest, 74 Tex. 666, 12 S. W. 832, and Eddie
V. Tinnin, 7 Tex. Civ. 377, 26 S. W. 734, both reaffirming rule; Scar-
brough V. Alcorn, 74 Tex. 360, 12 8. W. 73, holding estoppel prov-
able under plea of not guilty in trespass to try title; Biggs v. Nafe
(Tex. Civ.), 30 S. W. 707, evidence that a certificate was inventoried
and claimed as part of the estate does not necessitate the finding that
it was transferred to decedent.
66 Tex. 162-168, GALVESTON ETC. B. B. ▼. DONAHOE.
Wbether Act was Within Scope of Power and Antbority of ageoit
is question of fact for jury.
Approved in Missouri etc, Ey. v. Warner, 19 Tex. Civ. 467, 49 S.
W. 266, reaffirming rule; Evansville etc. R. R. v. McKee, 99 Ind. 623,
60 Am. Rep. 106, holding railroad company liable for wrongful arrest
by person employed as detective. See note, 14 L. R. A. 796.
. Company is Liable for Actual Damages where conductor wrongfully
ejects person from cars or prevents him from going to his destina-
tion.
Approved in Gulf etc. Ry. v. Conder, 23 Tex. Civ. 489, 68 S. W. 59,
holding company liable for arrest of person before reaching destina-
tion by conductor through mistake; South etc. Alabama R. R. v.
Huffman, 76 Ala. 498, 62 Am. Rep. 362, holding railroad liable for
damages for erroneous advice of ticket agent. See note, 7 L. R. A.
(n. B.) 170.
Company is not Liable in Exemplary Damages for unauthorized
malicious act of agent unless act is ratified or adopted by company.
Approved in Zeliff v. Jennings, 61 Tex. 470, Gulf etc. Ry. v. Moore,
69 Tex. 159, 6 S. W. 633, Dillingham v. Russell, 73 Tex. 63, 16 Am.
St. Rep. 769, 11 S. W. 141, 3 L. R. A. 634, and Texas etc. Ry. v. Self,
2 Tex. Ap. Civ. 390, all affirming rule; Jacobs v. Crum, 62 Tex. 407,
holding principal liable for exemplary damages for malicious attach-
ment by agent where benefit retained; Dempsey v. Chambers, 154
Mass. 334, 26 Am. St. Rep. 262, 28 N. E. 280, 13 L. R. A. 219, holding
dealer ratifying delivery by unemployed person liable for negligence
of such person; Cunningham v. Seattle etc. Ry. etc. Co., 3 Wash. 476,
28 Pac. 746, holding railroad not liable where conductor causes arrest
by policeman at destination. See notes, 62 Am. Dec. 384, 386; 4
L. R. A. (n. 8.) 507.
Service of Citation in Snit Against Bailroad Company describing
company as railroad company cannot be quashed.
Approved in Central etc. R. R. v. Morris, 68 Tex. 67, 3 S. W. 459,
reaffirming rule; Houston etc. R, R. v. Weaver (Tex. Civ.), 41 S. W.
848, terms "railway" and "railroad" are synonymous. See note, 42
Am. Rep. 38.
56 Tex. 168-175, WOODSON ▼. COLLINS.
Appeal from Judgment Suspends Bight to issue execution tihere-
under, but does not extinguish judgment lien.
1067 NOTES ON TEXAS BEPOBTS. 56 Tex. 176-182
Approved in Wren y. Peel, 64 Tex. 380, reaffirming rule; Semple ▼.
Eubanks, 13 Tex. Civ. 421, 35, S. W. 510, holding appeal does not
destroy, but merely suspends, judgment with reference to process.
Continuaiu Possesslan of Land by Vendee personally or by tenants
is notice to all persons of his claim.
Approved in Glendenning v. Bell, 70 Tex. 634, 8 S. W. 325, Barnett,
V. Sqnyres (Tex. Civ.), 52 S. W. 614, both reaffirming rule. See note,
13 L. B. A. (n. s.) 110.
A Deed from Father to Son will be held valid where the testimony
is clear and unequivocal and nothing inconsistent is opposed to it.
Approved in Mayer v. Texas Brewing Co. (Tex. Civ.), 26 S. W. 774,
claimant to attached property is entitled to recovery where he al-
leges a purchase before attachment and the creditor does not plead
fraud; Hawley v. Geer (Tex. Sup.), 17 S. W. 916, a resulting trust
is ineffectual against an innocent purchaser for value without notice.
66 Tex. 176-182, BEAD T. ALI.EN.
Irfmdlord is not Bonnd by Judgment in Action in trespass to try
title brought against tenant in possession when he is not made party
or has no notice of action.
Approved in Willoughby ▼. Terrell, 99 Tex. 491, 90 S. W. 1092, ap-
plying rule to state as lessor of public land; Wilson v. Johnson, 94
Tex. 276, 60 S. W. 243, holding wife not party to suit not bound by
judgment against husband.
Distinguished in Clark v. Perdue, 40 W. Ya. 307, 21 S. E. 738, hold-
ing record of judgment against tenant admissible to show character
of landlord's possession.
Judgment 4n Favor of Tenant in Suit to which landlord was not
party is not available as defense to landlord in suit by plaintiff
against landlord.
Approved in Bead v. Allen, 58 Tex. 382, reaffirming rule; McKelvain
y. Allen, 58 Tex. 388, holding judgment against vendee in suit on
vendor's lien admissible against execution purchaser.
Statute of Limitations in Favor of Landlord is stopped by suit
against tenant in regard to so much of land as is involved in suit.
Approved in Anderson v. Wynne, 25 Tex. Civ. 443, 62 S. W. 121,
reaffirming rule; Allen v. Bead, 66 Tex. 20, 17 8. W. 115, suit against
husband for land in his possession, but separate property of wife,
stops running of limitations in favor of wife though she is not party
to suit; Spotts V. Hanley, 85 Cal. 169, 24 Pac. 741, holding judgment
against tenant stops limitation in favor of landlord's adverse pos-
session; Sowers v. Peterson, 59 Tex. 221, holding tenants in common
setting forth title may recover whole tract against trespasser; Ney
V. Mumme, 66 Tex. 269, 17 S. W. 408, holding tenant in common may
recover whole tract against mere trespasser; Texas etc. By. v.
Speights, 94 Tex. 356, 60 S. W. 661, holding husband's agreement with
owner to purchase stops running of limitation in favor of wife; New-
man V. Bank of California, 80 Cal. 371, 374, 13 Am. St. Bep. 170,
173, 22 Pac. 261, 262, 5 L. B. A. 467, holding judgment against ad-
verse claimant obtained by cotenant determines title to whole tract;
King V. Hyatt, 51 Kan. 512, 37 Am. St. Bep. 308, 32 Pac. 1107, hold-
ing part owner, not in privity with other owner, can recover only
his own interest; dissenting opinion in Byers v. Wallace (Tex. Civ.),
25 S. W. 1046, majority holding defendants cannot claim as maternal
heirs by limitation, in absence of showing that they were the mater-
nal heirs.
66 Tex. 182-211 NOTES ON TEXAS BEPOBTS. 1068
66 Tex. 182-196, BEAB T. ALI.EN.
Final JTadgment Is Bes Adjudicata with reference to rights asserted
by parties in former suit.
Approved in Meyer v. Smith, 3 Tex. Civ. 41, 21 8. W. 996, White-
selle V. Texas Loan Agency (Tex. Civ.), 27 S. W. 315, both reaffirm-
ing rule.
Judgment in Fayor of On» Joint Owner of Land will not estop
defendant in such suit from contesting title or possession of other
joint owner not party to suit.
Approved in Allen v. Read, 66 Tex. 18, 19, 17 8. W. 116, 117, re-
affirming rule on subsequent appeal; Davidson v. Wallingford (Tex.
Civ.), 30 S. W. 290, holding plaintiff cannot recover all of a tract
of land when the statute of limitations runs in favor of same de-
fendants; Newman v. Bank of California, 80 Cal. 374, 13 Am. St.
Bep. 173, 22 Pac. 261, 5 L. B. A. 467, holding recovery of possession
from trespasser by one tenant inures to benefit of cotenants.
Wife is not Estopped by Judgment against husband in suit to which
she was not party.
See note, 2 Am. St. Bep. 876.
Husband may Sue Alone or Jointly Witli Wife for recovery of sepa-
rate estate of wife under article 4636, Paschal's Digest.
Approved in Seay v. Fennell, 15 Tex. Civ. 266, 39 S. W. 183, Thomas
V. Quarles, 64 Tex. 492, and Operand v. Menczer, 83 Tex. 126, 18 8. W.
303, all reaffirming rule.
Distinguished in Owen ▼. New York etc. Land Co., 11 Tex. Civ.
291, 293, 32 S. W. 1059, 1060, holding wife not bound by judgment
on contract regarding separate estate made by husband.
Miscellaneous. — Cited in Jeffus v. Allen, 56 Tex. 197, as giving
statement of facts of case; Allen v. Bead, 66 Tex. 20, 17 8. W. 117,
holding limitation ceases to run in favor of adverse possession from
judgment against cotenant.
66 Tex. 195-198, JEFFUS ▼. ALLEN.
Title of Ohe in Possession of Land not affected by judgment in
proceeding to which he was not party.
Approved in Higgins Oil & Fuel Co. v. Snow, 113 Fed. 437, cotenant
not affected by judgment though cotenants might have recovered for
her in their own names.
66 Tex. 198-211, WOOTEBS ▼. SMITH.
At Common Law, Judgment Against One Joint Contractor merges
contract and defeats action against others, but under statute other
joint contractors not joined in suit against one may be subsequently
sued.
Approved in Keesey v. Old, 82 Tex. 25, 17 8. W. 929, reaffirming
rule; Miller v. Sullivan, 89 Tex. 483, 35 8. W. 364, 31 L. B. A. 669.
holding one or more joint contractors may be sued without joining
all; Bute v. Brainerd, 93 Tex. 139, 53 S. W. 1018, holding judgment
against one joint maker of note will not release another after dis-
missal; Kuykendall v. Coulter, 7 Tex. Civ. 400, 26 8. W. 749, hold-
ing joint and several judgment upon joint note not erroneous; Brain-
ert V. Bute (Tex. Civ.), 44 8. W. 576, a judgment against one joint
obligor does not work a merger of the cause of action against the
others. See note, 43 L. B. A. 165, 180.
106» NOTES ON TEXAS BEPORTS. 56 Tex. 212-233
To Sustain Bond Taken by Officer as Ooniznon-law Bond, it must
appear that parties seeking to enforce it or those in privity with
them, consented to contract evidenced thereby with makers there-
of.
Approved in Gregory v. Goldthwaite, 2 Tex. Civ. 289, 21 8. W.
414, holding appeal bond not good as voluntary common-law bond
unless agreed to by plaintiff; State v. Vinson, 5 Tex. Civ. 317, 23
S. W. 808, holding liquor dealer's bond is penal, and should be strictly
construed.
Bond QlTon as Condition to Enjoy Bight Qiven by Law, demanded
by officer in possession of property under process, is not voluntary
bond when more onerous than required by law.
Approved in Leverett v. Meeks, 29 Tex. Civ. 525, 68 S. W. 304, and
Leona I. M. ft C. Co. v. Roberts, 62 Tex. 622, both reaffirming rule;
Turner t. State, 14 Tex. Ap. 170, holding bail bond containing more
onerous condition than required void. See note, 67 Am. Dec. 774.
Distinguished in Eichoff v. Tidball, 61 Tex. 426, holding bond given
to withhold money until claim determined valid and binding; Bul-
lock V. Traweek (Tex. Civ.), 20 S. W. 725, where plaintiff dismisses
his sequestration suit without proving his right to land and its
revenue, he cannot in the same action recover on defendant's replevin
bond.
Error in Sustaining Spocial Demurrer will not warrant reversal
when there were other errors which should have been sustained.
Approved in State v. Vinson, 5 Tex. Civ. 318, 23 S. W. 808, hold-
ing which one of several demurrers was sustained immaterial if re-
sult correct.
Dlscontinnance may bo Entered as to codefendant not served with-
out affecting his liability in subsequent action. See note, 43 L. R. A.
165, 180.
66 Tex. 212-215, BAIIiEY ▼. WILUS.
Heirs Take No Beneficial Interest in land purchased by their an-
cestor for valuable consideration and sold by him before death, though
the conveyance to the ancestor was made in the name of the heirs.
Distinguished as to facts in Vineyard v. O'Connor (Tex. Civ.), 35
S. W. 1085.
66 Tex. 215-219, BOBIN80N ▼. BLACK.
Subsequent Purchaser In Possession Under Deed is necessary party
in suit by vendor to enforce equitable lien for purchase money against
vendee.
Approved in Rhine v. Hodge, 1 Tex. Civ. 371, 21 S. W. 141, reaffirm-
ing rule.
66 Tex. 219-228, SE^LIGSOK ▼. TAYI.OR COMPBESS CO.
Defendant's Use of Plaintiff's Property after notice of plaintiff's
rate of charges implies a contract to pay them.
Approved in Lone Star Elevator Co. v. English (Tex, Civ.), 30 S.
W. 706, following rule.
56 Tex. 229-233, BBOWN T. McCONNEI-L.
Unnecessary That the Consent of the executory advisers appears
on the face of a deed executed by an executrix authorized by wUl to
""""Foirowed^^n^Holmes v. Sanders (Tex. Civ.), 51 S. W. 335.
66 Tex. 234-250 NOTES ON TEXAS BEPOBTS. 107()
56 Tex. 234-239, GBIBNT MTTT. INS. OO. ▼. BEYMEBSHOFFEB.
Marine InBurance Policy on Property "laden or to be laden on
board" does not cover property laden on deck.
See note, 86 Am. Dec. 501.
56 TEX 239-250, BEAUCHAMP ▼. INTEBNATIONAL ETC. B. B.
Neither Admljwlan nor Exclusion of Testimony not affecting result
or prejudicing appellant is ground for reversal.
Approved in Adam v. Sanger (Tex. Civ.), 77 S. W. 955, Lecomte v.
Toudouze, 82 Tex. 211, 27 Am. St. Sep. 873, 17 S. W. 1049, San An-
tonio etc. By. V. Muth, 7 Tex. Civ. 450, 27 S. W. 756, and Texas etxs.
By. V. Ludlam, 57 Fed. 484, all reaffirming rule; Sheppard v. Avery
(Tex. Civ.), 32 S. W. 794, appellate court will not grant a new trial
upon the unsworn averment of surprise; Tuggle v. Hughes (Tex. Civ.),
28 S. W. 63, appellate court will not grant a new trial where the?
preponderance of evidence supports the verdict, though illegal evi-
dence was admitted; Howard v. Galbraith (Tex. Civ.), 30 S. W. 693,
appellate court will sustain the verdict where the exclusion of evi-
dence was harmless.
Bailway Timetable Arranged for Employees Only, and reserving
right to vary therefrom, is inadmissible in suit for damages for fail-
ure to stop train at point mentioned therein.
Approved in Geer v. Michigan etc. B. Co., 142 Mich. 514, 106 N.
W. 73, reaffirming rule; Chicago etc. By. Co. v. Groves, 7 Okl. 320,
54 Pac. 485, place where trains stopped at irregular intervals not
station where summons might be served.
Distinguished in Denver etc. B. B. v. Pickard, 8 Colo. 165, 6 Pae.
150, holding admissible, timetable taken in connection with other
evidence admitted.
Bigbt of Bailway Companies to Establish Timetables for regula-
tion of employees in running trains, subject to change at will, recog-
nized and approved.
Approved in Texas etc. By. v. White, 4 Tex. Ap. Civ. 453, 17 S. W.
420, holding railroad may adopt reasonable regulations regarding
time of starting and running trains.
Ck>mpany is not I«iable to Passenger for failure to stop train at
station unless passenger shows express or implied contract to so stop.
Approved in Chicago etc. B. B. v. Bills, 104 Ind. 17, 3 N. E. 614,
holding purchaser of ticket to station at which no stop made not
rightfully on train.
Person Abont to Take Passenger Train must inform himself when,
where, and how he can go or stop, according to railroad regulations,
and company is not liable for his mistake nnless induced by company.
Approved in Texas etc. B. Co. v. Terry (Tex. Civ.), 65 S. W. 698,
Atchison etc. B. B. v. Gants, 38 Kan. 617, 5 Am. St. Bep. 784, 17
Pac. 59, and Texas etc. By. v. Ludlam, 57 Fed. 483, all reaffirming
rule; Gulf etc. By. Co. v. Moore, 98 Tex. 305, 83 S. W. 363, railroad
making other sufficient provision for local travel may run trains
not stopping at way stations; Texas etc. By. Co. v. Bell, 39 Tex. Civ.
415, 87 S. W. 732, and St. Louis etc. By. Co. v. Campbell, 30 Tex.
Civ. 38, 69 S. W. 452, both holding carrier not bound to stop at
other than customary stopping-place; Texas etc. B. Co. v. Terry, 27
Tex. Civ. 343, 65 S. W. 698, applying rule to passenger who mistook
station owing to defective hearing; Missouri etc. By. v. Dawson, 10
Tex., Civ. 21, 29 S. W. 1107, holding company not bound to carry
1071 NOTES ON TEXAS BEPORTS. 56 Tex. 250-261
passenger taking wrong train to next station free; South etc. Alabama
B. B. ▼. Hnffman, 76 Ala. 498, 52 Am. Bep. 352, holding railroad
liable for erroneous advice of ticket agent to passenger; Western
Union Tel. Co. v. Harding, 103 Ind. 512, 3 N. E. 176, holding gener-
ally telegraph company not bound to inform person of office hours;
Cincinnati etc. B. B. v. Carper, 112 Ind. 38, 2 Am. St. Bep. 153, 13
N. £. 127, holding obedience of passenger to instructions of conduc-
tor within authority not contributory negligence; Southern Kansas
By. V. Hinsdale, 38 Kan. 512, 16 Pac. 939, holding company not liable
where passenger disregards regulations.
Distinguished in Texas etc. By. v. Dennis, 4 Tex. Civ. 95, 23 S.
W. 401, holding purchaser of excursion ticket to sale of town lots
may presume sufficient time for sale.
New Trial will not be Qranted for surprise resulting from mis-
apprehension of law by counsel.
Approved in Bemis v. Williams, 32 Tex. Civ. 397, 74 S. W. 334,
reaffirming rule.
56 Tex. 250-255, Wn.TJAMfl T. DAVIS.
Contents of Judicial Becords, unless lost or destroyed, cannot be
proven by parol evidence.
Approved in Bigham v. Talbot, 63 Tex. 274, reaffirming rule;
Clayton v. Bhem, 67 Tex. 54, 2 S. W. 46, holding parol evidence in-
admissible to prove indorsement on assessor's tax-roll.
Original Papers and Orders of Probate Court, or certified copies
thereof, are best evidence whether administration has been closed
or not.
Approved in Collins v. Ball, 82 Tex. 267, 27 Am. St. Bep. 883, 17
S. W. 616, reaffirming rule.
Judgment Iiien is Lost by lapse of twelve months between execu-
tions.
Approved in Wylie v. Posey, 71 Tex. 36, 9 S. W. 87, reaffirming
rule; Wren v. Peel, 64 Tex. 380, holding judgment lien not lost if
execution issued within year after affirmance; Anthony v. Taylor,
68 Tex. 405, 4 S. W. 532, holding judgment lien lost for failure to
issue executions from year to year.
Plaintiff Suing for Whole Tract of Land may recover an undivided
interest therein.
Approved in Murrell v. Wright, 78 Tex. 523, 15 S. W. 157, reaffirm-
ing rule; Schmidt v. Talbert, 74 Tex. 452, 12 S. W. 284, holding deed
describing land as undiyided one-half of south one-half of section
sufficient.
56 Tex. 256-261, GALVESTON ETC. BY. T. DUNLAVT.
Statute Bequiring Oharge to Jury to be Written is directo-ry
merely, and failure to do so is not reversible error.
Approved in Schwartzlose v. Mehlitz (Tex.. Civ.), 81 S. W. 68,
G. C. ft S. F. By. V. Holt, 1 Tex. Ap. Civ. 477, Hurst ▼. Benson, 27
Tex. Civ. 230, 65 S. W. 78, all reaffirming rule; Parker v. Chancellor,
78 Tex. 527, 15 S. W. 158, holding failure to sign written charge not
reversible error; Boberts v. State, 30 Tex. Ap. 299, 17 S. W. 451,
holding statutes regarding summoning jurors are directory.
Charge is Erroneous Which Leaves Jury to find such damages as
they believe plaintiffs entitled to from evidence without distinguish-
ing between actual and exemplary damages.
56 Tex. 261-281 NOTES ON TEXAS REPORTS. 1072
Approved in I. & G. N. By. v. Philips, 63 Tex. 594, reversing judg-
Bent when jury probably misled through failure to instruct; Bee-
man etc. Co. V. Caradine (Tex. Civ.), 34 S. W. 980, reversing where
the charge did not restrict the jury to damages resulting only from
the proximate cause; Dallas v. Leake (Tex. Civ.), 34 S. W. 339,
error to leave the measure of damages to the discretion of €he jury;
Texas etc. By. v. Jones (Tex. Civ.), 29 S. W. 500, reversing where
exemplary damages were awarded not as compensation but in the
discretion of the jury.
56 Tex. 261-266, PARKS T. DIAL.
Tenants in Oommon must Join in action of trespass quare clausum
fregit.
Approved in Gulf etc. By. v. Cusenberry, 86 Tex, 529, 26 S. W. 45,
Gulf etc. By. Co. v. Foster (Tex. Civ.), 44 S. W. 200, both reaffirming
rule.
Distinguished in Gulf etc. By. v. Goldman, 8 Tex. Civ. 259, 28 S.
W. 267, holding husband alone could prosecute action for damage
for daughter's death.
56 Tex. 265-268, THOMPSON ▼. WBBTBROOK.
Where Vendee Executes Mortgage at same time vendor executes
deed, vendor may, on default in payment of purchase money treat
sale as nullity and convey good title to another.
A)>proved in Kennedy v. Embry, 72 Tex. 390, 10 S. W. 89, Peter-
son V. McCauley (Tex. Civ.), 25 S. W. 829, L. & H. Blum Land Co.
V. Harbin (Tex. Civ.), 33 8. W. 154, and Dunlap v. Green, 60 Fed.
248, all reaffirming rule; King v. Quincy Nat. Bank, 30 Tex. Civ. 95,
69 S. W. 979, mere indorsement or recitals insufficient to prove one
bona fide purchaser; Peterson v. McCauley (Tex. Civ.), 25 S. W. 829,
registry of a deed is only notice to those who claim through or under
the grantee by whom the deed was executed; Halbert v. DeBode, 15
Tex. Civ. 630, 40 S. W. 1018, holding subsequent conveyance controls
prior unrecorded conveyance where purchaser bona fide without
notice. See note, 30 L. B. A. 65.
Distinguished in Huffman v. Mulkey, 78 Tex. 561, 22 Am. St. Bep.
75, 14 S. W. 1030, holding grantee of vendee before purchase money
paid unaffected by subsequent agreements; Liverpool etc. Ins. Co.
V. Bicker, 10 Tex. Civ. 267, 31 8. W. 249, holding recovery of insur-
ance policy unaffected by failure to disclose outstanding purchase
money notes; Simms v. Wright (Tex. Civ.), 56 S. W. Ill, holding
that one cannot recover for improvements placed upon school land
which has been declared forfeited after payment.
56 Tex. 269-281, GALVESTON OITT CO. T. SIBLEY.
Ownership of Stock Certificate is In Plaintiff when stock was issued
to ancestor and stands in his name on company's book, though cer-
tificate lost.
Approved in Keller v. Eureka Brick etc. Co., 43 Mo. Ap. 87, re-
affirming rule; Joslyn v. St. Paul Distilling Co., 44 Minn. 186, 46 N.
W. 338, holding stock certificate issued by corporation continuing
affirmation of ownership by person named.
Judgment Ordering Company to Issue Kew Certificate in lieu of
lost stock certificate must provide for ample indemnity to secure
company from all loss should original be found.
1073 NOTES ON TEXAS BEPOETS. 66 Tex. 282-287
■
Approved in Richards v. Minster, 29 Tex. Civ. 90, 70 S. W. 101,
applying rule to negotiable note; Keller v. Eureka Brick etc. Co., 43
Mo. Ap. 96, holding stockholder on giving indemnity bond entitled
to certificate in lieu of one loat.
56 Tez. 282-287, BUBNS ▼. USDBETTEB.
Questions of Law Decided by Gommission of Appeals in making
award in case referred to them by agreement are conclusively set-
tled.
Approved in Frankland v. Cassaday, 62 Tez. 419, holding facts on
second appeal being same as on former, law then announced governs.
Texas Gonrts are not Bound to accept law as decided on former
appeal.
Approved in Frankland v. Cassaday, 62 Tex. 421, and Bomar v.
Parker, 68 Tex. 438, 4 S. W. 606, both reaffirming rule; White v.
Watson, 34 Tex. Civ. 170, 78 S. W. 237, declining to reconsider law
enunciated on former appeal in spite of subsequent conflicting de-
cisions; Kempner v. Huddleston, 90 Tex. 185, 37 S. W. 1066, holding
former decision of appellate court does not bar consideration on
second appeal; Brimm v. Jones, 13 Utah, 452, 45 Pac. 355, holding
supreme court will not consider questions determined on former
appeal. See note, 34 L. B. A. 329.
Pnrcliaser at Ezecatiim Sale, void because made pending appeal
under article 1493, Paschal's Digest, may recover purchase money
paid and applied to judgment.
Approved in Elam v. Donald, 58 Tex. 319, and Stephenson v. Mar-
salis, 11 Tex. Civ. 173, 33 S. W. 388, both reaffirming rule; Arnold
V. Leatherwood, 2 Posey, 244, sale of land for costs while case is
pending on appeal is void; Cline v. Upton, 59 Tex. 28, holding
instruction that purchaser of homestead at execution sale could
recover money paid proper; Bindge v. Oliphint, 62 Tex. 685, holding
purchaser crediting amount on claims against estate may collect
claims; Galveston etc. By. v. Blakeney, 73 Tex. 181, 11 S. W. 174,
holding execution debtor can recover property illegally sold only
by tendering purchase money paid; Faires v. Cockerell, 88 Tex. 437,
31 S. W. 194, 28 L. B. A. 528, holding minor can recover property
illegally sold only by reimbursing purchaser; Merchants' Nat. Bank
V. McAnulty, 89 Tex. 129, 33 S. W. 965, holding joint obligors must
pay proportional part of excess paid by one; .Terry v. Cutler, 4 Tex.
Civ. 576, 23 S. W. 541, holding party seeking to avoid void sale
must repay amount charged against land; Bichards v. Belcher, 6
Tex. Civ. 286, 25 S. W. 741, holding execution purchaser under valid
judgment entitled to recover purchase money; Hollon v. Hale, 21
Tex. Civ. 197, 51 S. W. 902, holding execution sale being void, judg-
ment should be restored to plaintiff; Brown v. Hunter, 2 Colo. Ap.
529, 31 Pac. 507, holding creditor paying money to redeem from
void execution sale may recover money; Bragg v. Thompson, 19 S.
C. 578, holding purchaser may recover from sheriff amount not yet
paid plaintiff under void judgment. See notes, 70 Am. Dec. 580;
()9 L. B. A. 43; 21 L. B. A. 48.
One Subrogated to a Judgment Lien, where the judgment bore
interest at ten per cent, is entitled only to the legal rate of interest.
Beaffirmed in Moore v. Moore (Tex. Civ.), 52 S. W. 566; Cleveland
V. Carr (Tex. Civ.), 40 S. W. 410.
2 Tex. Notes — 68
56 Tex. 287-315 NOTES ON TEXAS EEP0RT8. 1074
Miscellaneous. — Cited in Lowell v. Ball, 58 Tex. 566, refusing to
review decision of court in case rendered at former term.
56 Tex. 287-301, POOL ▼. WBDEMEYEB.
Courts will 80 Gonstme Statutes as to determine legislative intent
in its enactment as written, without regard to policy thereof.
Approved in Laughter v. Seela, 59 Tex. 187, holding generally
courts cannot grant relief from operation of statutes.
Statute Begarding Mechanics' Liens, if under verbal contract, is
sufficiently complied with if account filed states work was done at
request, with approval of party charged.
Approved in Whiteselle v. Texas Loan Agency (Tex. Civ.), 27 S.
W. 312, a substantial compliance with the statute will support a
mechanic's lien; Harris v. Harris, 9 Colo. Ap. 218, 47 Pac. 844, hold-
ing subcontractor claiming mechanic's lien need not set out contract
between contractor and owner.
When Entire Work is Done Under Express Verbal Contract, ae-
eount filed under statute to fix mechanic's lien need not set out each
item of material and labor furnished or done.
Approved in Texas State Fair etc. Assn. v. Caruthers, 8 Tex. Civ.
478, 29 S. W. 49, Houston Cotton Ex. v. Crawley, 3 Tex. Ap. Civ. 176,
Land Mortgage Co. v. Quanah Hotel Co. (Tex. Civ.), 32 S. W. 577,
and Taylor v. Netherwood, 91 Ya. 93, 20 S. E. 890, all reaffirming
rule; Meyers v. Wood, 95 Tex. 71, 65 S. W. 176, a memorandum stat-
ing bill for sash doors as per contract is insufficient to charge a
mechanic's lien; Moant Lumber etc. Co. v. Freeman, 7 Colo. Ap. 154,
42 Pac. 1041, holding all facts necessary to create mechanic's lien
under statute must be alleged and proved; Hayden v. Wnlfing, 19
Mo. Ap. 357, holding statute does not require dates when work done
to be stated.
Party must Make Objections upon which he relies in court below
or they will be deemed waived.
Approved in Diehl ▼. Fowler, 10 Tex. Civ. 559, 30 S. W. 1086,
holding issues not raised by pleadings cannot be considered.
Wbere Officer Performs Act Pursuant to duty enjoined on him by
law, his certificate of its performance is evidence thereof.
See note, 129 Am. St. Bep. 850.
66 Tex. S01--S07, HOWARD OIL GO. ▼. FABBiEB.
Where Danger is not Apparent, inexperienced workman has right
to believe he can safely do work in manner indicated by experi-
enced foreman.
Approved in Hillsboro Oil Co. v. White (Tex. Civ.), 54 S. W. 435.
following rule; Texas etc. R. Co. v. Kelly, 98 Tex. 135, 80 S. W. 82,
order of superior pertinent to question of contributory negligence;
Gulf etc. Ry. v. Duvall, 12 Tex. Civ. 356, 35 S. W. 702, holding ser-
vant relying on master's judgment not guilty of contributory negli-
gence. See note, 77 Am. Dec. 223.
56 Tex. 308-315, HEIDENHEIMEB ▼. BLT7MENKBON.
Persons Placing Their Names on Back of Note before delivery are
liable as indorsers.
Approved in Harnett v. Holdrege, 73 Neb. 576, 119 Am. St. Rep.
905, 103 N. W. 280, reaffirming rule; Hollimon v. Karger, 30 Tex.
Civ. 560, 71 S. W. 300, indorser of matured note liable as such;
1075 NOTES ON TEXAS BEPOBTS. 56 Tex. 315-324
Williams v. Merchants' Nat. Bank, 67 Tex. 608, 4 S. W. 164, holding
confession of judgment authorized only against maker of note. See
notes, 72 Am. St. Bep. 684; 18 L. B. A. 33.
Exemption of Honsehold Fnxnitare from execution includes only
furniture for family and not furniture used in keeping hotel.
Approved in Dodge v. Knight (Tex. Sup.), 16 S. W. 628, reaffirm-
ing rule; Frank y. Bean, 3 Tex. Ap. Civ., 259, holding furniture used
in keeping restaurant not exempt from execution.
Distinguished in Mueller y. Bichardson, 82 Tex. 363, 18 S. W. 694,
holding household furniture used to support widow and child ex-
empt from execution.
Parol Eyidence Inadmissible to Show that indorser of note re-
leased holder from obligation to use diligence in its collection.
Approved in Barringer v. Wilson, 97 Tex. 586, 65 Am. St. Bep. 818,
80 S. W. 995, liability of regular indorser cannot be changed by
parol.
66 Tex. 315-^19, SMITH ▼. UZZELIi.
Homestead is Abandoned and Homestead Biglits Lost where party
leaves state with intention of remaining away, though he subse-
quently returns.
Approved in Cantine y. Dennis (Tex. Civ.), 37 S. W. 187, home-
stead may be abandoned without acquiring another.
Children are Bound by Husband's Abandonment of Homestead,
and wife loses rights therein by voluntarily accompanying husband
when he abandoned it.
Approved in Slavin y. Wheeler, 61 Tex. 659, and Beece y. Benfro,
68 Tex. 194, 4 S. W. 546, both reaffirming rule; McElroy y. Mc-
Goffin, 68 Tex. 210, 4 S. W. 548, holding wife changing domicile to
another state loses homestead rights; Portwood v. Newberry, 79
Tex. 430, 15 S. W. 271, holding abandonment established by show-
ing continued absence from and sale of homestead; Myers y. Evans,
81 Tex. 320, 16 S. W. 1061, holding wife unwillingly leaving home-
stead not deprived of right therein by sale by husband. See notes,
60 Am. Dec. 612, and 96 Am. Dec. 415.
Distinguished in Newman v. Farquhar, 60 Tex. 644, holding in-
admissible declarations of husband in wife's absence, showing aban-
donment of homestead.
Miscellaneous. — Smith v. Uzzell, 61 Tex. 220, referring to former
appeal in stating history of the litigation.
66 Tex. 31d-324, CUNE ▼. XTPTON.
Purchaser at Execution Sale under judgment against husbam^,
without knowledge whether property was acquired by wife's sepa-
rate means, takes good title to property acquired during coverture
by deed in wife's name.
See note, 96 Am. Dec. 423.
Whether Long-continued Absence from Homestead constitutes
abandonment thereof is question for jury.
See note, 60 Am. Dec. 609.
Bemoyal from Homestead with intention never to return consti-
tutes abandonment, and nothing else does.
Approved in King v. Barter, 70 Tex. 581, 8 S. W. 309, reaffirming
rule. See note, 102 Am. St. Bep. 392.
66 Tex. 326-353 NOTES ON TEXAS REPORTS. 1076
Lengtli of Absence from Homestead is immaterial, intention of
remaining awaj being controlling feature in determining abandon-
ment of homestead.
Approved in Rollins v. O'Parrell, 77 Tex. 94, 13 S. W. 1023, hold-
ing part of property leased to tenants by owner abandoned as
homestead; Myers v. Evans, 81 Tex. 320, 16 S. W. 1061, holdin;^
homestead not abandoned where wife unwillingly leaves it and no
other acquired; Davis v. Taylor (Tex. Civ.), 33 S. W. 546, homestead
may be abandoned when no other has been acquired; Cantine v.
Dennis (Tex. Civ.), 37 S. W. 187, to entitle creditors to levy upon
an abandoned homestead, it must be shown that it was abandoned
with intention not to return; O'Brien v. Woeltz, 94 Tex. 152, 58 S.
W. 944, holding removal from homestead with intention not to re-
turn constitutes abandonment.
56 Tex. 325-331, CRANE ▼. BLUM.
Rights Acquired Under Judgment Affirmed by court of appeals
having jurisdiction cannot be attacked in collateral proceediiig in
district court.
Approved in Newman v. Mackey, 37 Tex. Civ. 90, 83 S. W. 33,
judgment not open to collateral attack because seal omitted from
citation.
Distinguished in Moore ▼. Perry, 13 Tex. Civ. 210, 35 S. W. 840,
holding though service defective, default judgment reversible only
on appeal or writ of error.
Appellate Goort Having Determined jurisdiction of county court,
judgment is conclusive on parties and privies.
Approved in Sweatman v. Stratton, 74 Tex. 78, 11 S. W. 1056, re-
affirming rule; Henderson v. Cabell, 83 Tex. 547, 19 S. W. 290, hold-
ing judgment in United States court conclusive as to jurisdiction
of court in case. See note, 20 L. R. A. 426.
56 Tex. 331-340, HOUSTON ETC. RT. ▼. WALLER.
Whether Perscm Exercised Due Gare under circumstances, and
whether intoxication constituted contributory negligence, is ques-
tion for jury.
Approved in International etc. R. Co. v. Edwards, 100 Tex. 24, 93
S. W. 106, one approaching railroad crossing without looking for
train not excused by failure to give crossing signals; Missouri etc.
Ry. V. Lee, 70 Tex. 501, 7 8. W. 859, holding jury must determine,
under charge of court, whether facts show contributory negligence.
See notes, 25 Am. St. Rep. 43; 40 L. R. A. 143.
56 Tex. 340-346^ BROWN ▼. CAUSEY.
UndOT Act of 1867, discharge of bankrupt operated as bar to
creditor whose debt had not been scheduled.
Distinguished in Fields v. Rust, 36 Tex. Civ. 351, 82 8. W. 332,
bankrupt not discharged from judgment where he could by reason-
able diligence have scheduled the true name and address of the
owner.
66 Tex. 347-363, WILLIAMS ▼. ROBINSON.
Expenses of Administration have Priority over all debts of estate
save funeral expenses, and should be paid before judgment order-
ing claim to be paid in preference to all other debts.
lOTT NOTES ON TEXAS REP0BT8. 56 Tex. 353-366
Approved in Manning v. Mayes, 79 Tex. 655, 15 S. W. 638, uphold-
ing judgment for costs against administrator in suit to try title
preferred claim.
Miscellaneous. — ^Walker v. Kerr, 7 Tex. Civ. 502, 27 8. W. 302,
cited to the point that two years' limitation inapplicable to contest
by creditor of legality of payment by administrator.
56 Tex. 353-368, BELL ▼. SCHWABZ.
Error to Ghargo That There can be No Becovery from a father
who has sold the children's property so as to make suitable provi-
sion for them.
Approved in Moore v. Moore (Tex. Civ.), 31 S. W. 534, father has
no claim for indemnity against child's estate for supporting it.
Infants and Married Women are not Estopped unless their eon-
duct has been intentional and fraudulent.
Approved in Munky v. Weidner, 9 Tex. Civ.' 496, 29 8. W. 411, re-
affirming rule.
Distinguished in Ogden ▼. Leland University, 49 La. Ann. 196, 21
8o. 688, holding defendants in possession may urge ten year limi-
tation against claimant in petitory action.
Sale of Gommnnity Homestead by husband does not pass title of
children.
See note, 56 L. B. A. 73.
56 Tex. 353-361, JEMI80N ▼. 80ABB0B0UOH.
Should Oamishee, When Notifled, fail to appear and answer,
officer to whom commission was issued must certify fact, and there-
upon court may render judgment by default.
Approved in Holloway Seed Co. v. City Nat. Bank, 92 Tex. 190,
47 S. W. 97, holding garnishee's answer denying possession of effects
controvertible and judgment on that issue proper; Gay Ranch v.
Pembcrton, 23 Tex. Civ. 421, 57 S. W. 72, holding judgment by de-
fault proper for patent failure to answer interrogatories.
Answer of Oamlshee not Admitting Indebtedness nor possession
of effects, etc., he had at date of service of writ is defective.
Approved in Scurlock v. Gulf etc. By., 77 Tex. 481, 14 S. W. 148,
reaffirming rule; First Nat. Bank v. Bobertson, 3 Tex. Civ. 155, 22
8. W. 101, holding default judgment on defective answer erroneous
unless willful failure or refusal to answer shown.
Act OiTlng Bemedy of Oamishment is never liberally construed
in favor of party resorting to remedy.
Approved in Booth v. Denike, 65 Fed. 45, reaffirming rule as to
attachments.
66 Tex. 361-366, MONTGOMEBY ▼. GABLTON.
Where County Goort has Secured Jurisdiction of Minors in par-
tition suit by personal service, guardian ad litem should be appointed
and failure to do so renders judgment voidable.
Approved in Wallis v. Stuart (Tex. Civ.), 51 8. W. 1135, reaffirm-
ing rule; Laughter v. Seela, 59 Tex. 180, holding sheriff's sale under
execution against minor vests title in purchaser; McGhee v. Bom>
atka, 92 Tex. 43, 45 8. W. 554, holding judgment against minor
binding until set aside in direct proceedings; McGhee v. Romatka,
19 Tex. Civ. 401, 47 8. W. 293, holding judgment against minor valid
and binding until set aside. See notes, 89 Am. Bee. 185, 188, 189;
11 L. B. A. 441.
56 Tex. 366-397 NOTES ON TEXAS REPOETS. 1078
Where Plaintift Proyes Prima Facie Legal Title and defendant
fails to prove title in himself, court may instruct jury to find for
plaintiff.
Approved in Simmons Hardware Co. ▼. Davis, 87 Tex. 148, 27 S.
W. 63, 24 L. B. A. 637, holding erroneous verdict for defendant,
plaintiff having proved his title.
Plea in Trespass to Try Title setting up parol gift, but failing to
allege valuable improvements, bad on demurrer.
See note, 3 L. B. A. (n. s.) 801.
Distinguished in Arthur v. Eidge, 40 Tex. Civ. 145, 89 8. W. 19,
plaintiff in trespass to try title, not pleading title specially, may
prove any title except one by limitation; Bonner v. Bonner, 34 Tex.
C'tv, 351, 78 S. W. 537, improvements not necessary where father
divided land among children by parol gift.
Miscellaneous. — Cited in Mansel v. Castles, 93 Tex. 415, 55 S. W.
559, holding description giving proper quantity, though lines and
distances incorrect, sufficient.
56 Tex. 366-373, OEOBOIA HOME INS. CO. ▼. JACOBS.
Insurance Company may Prescribe Terms on which risk is accepted,
provided terms are not contrary to law and public policy.
Approved in Sun Fire Ins. Co. v. Hodges, 3 Tex. Civ. 326, reaffirm*
ing rule.
Insurance Company is Deemed to have Waived stipulated time
for payment after proof of loss when authorized agent before expira-
tion of time denies justice of claim.
Approved in Hartford etc. Ins. Co. v. Josey, 6 Tex. Civ. 293, 25
S. W. 686, and Continental Ins. Co. v. Wickham, 110 Ga. 135, 35 S.
E. 289, both reaffirming rule; Getchell etc. Manufacturing Co. ▼.
Peterson, 124 Iowa, 614, 100 N. W. 555, surety company bound by
act of resident agent; Northwestern etc. Ins. Co. v. Freeman, 19
Tex. Civ. 636, 47 S. W. 1027, holding insured entitled to interest
from time insurance company denied liability on policy; Pioneer etc.
Loan Co. v. Peck, 20 Tex. Civ. 128, 49 S. W. 169, holding action on
stock certificate of loan association properly brought when contract
repudiated; Commercial Fire Ins. Co. v. Allen, 80 Ala. 577, 1 So.
207, holding offer to pay given sum waiver of proof of loss; Dibbrell
V. Georgia Home Ins. Co., 110 N. C. 206, 28 Am. St. Rep. 682, 14 S
E. 787, holding adjuster by denying justice of claim under insur-
ance policy waives proof or loss; Fitzmaurice v. Mutual Life Ins. Co.,
84 Tex. 65, 19 S. W. 302, holding soliciting agent without power to
bind company by representation not in policy.
66 Tex. 384-395, SPEKCEB ▼. GALVESTON OOXJKTY.
District Attorney Prosecuting Suits which he is not by law re-
quired to prosecute cannot, in absence of contract with county, col-
lect compensation therefor.
Approved in Austin v. Johns, 62 Tex. 183, holding under ordinance
courts may allow district attorney commissions on money collected
in civil and criminal suits.
56 Tex. 395-397, ZAPP ▼. BUCHAISLIS.
Formal Defects in Appeal Bond warranting dismissal on motioa
if filed in time will not affect sufficiency of bond to give appellate
court jurisdiction.
1079 NOTES ON TEXAS REPORTS. 56 Tex. 398-430
Approved in White v. Harris, 85 Tex. 45, 19 8. W. 1078, holding
appeal bond not operative as supersedeas bond unless strictly con-
forming to statute; Davis v. Estes, 4 Tex. Civ. 208, 23 S. W. 411,
holding errors of description in appeal bond waived if not objected
to; Missouri etc. Ry. v. Mostj, 8 Tex. Civ. 332, 27 S. W. 1058, hold-
ing defect in appeal bond waived by delay in moving to dismiss;
Futch V. Palmer, 11 Tex. Civ. 192, 32 S. W. 566, holding delay in
moving dismissal and consent to continuances waiver of defects;
Woodhouse v. Cocke (Tex. Civ.), 39 8. W. 951, failing to dismiss
appeal waives all defects in an appeal bond which are not jurisdic-
tional.
Only Substantial Vital Defects In Appeal Bond will defeat juris-
diction of appellate court.
Approved in Howth v. Shumard (Tex. Civ.), 40 S. W. 1079, fol-
lowing rule; Worley v. Hudson, 2 Tex. Ap. Civ. 30, holding formal
defects in appeal bond will not defeat appellate jurisdiction; Hal-
bert V. Alford (Tex. Sup.), 16 S. W. 816, using the word "judgment"
alone in an appeal bond is not a substantial defect; Perry v. Cullen,
6 Tex. Civ. 479, 25 S. W. 1043, holding appeal bond identifying
cause by number, style, court, and date of judgment, properly con-
ditioned, sufficient.
56 Tex. 398-403, I.ABEDO ▼. BUSSELL.
Facts Proyed cannot Form the Basis of a judgment unless alleged.
Reaffirmed in Cook v. Arnold (Tex. Civ.), 36 S. W. 344.
Approved in Mills v. Paul (Tex. Civ.), 30 S. W. 560, error not to
charge no recovery upon a contract where the matters recovere<l
are not pleaded; Alamo Fire Ins. Co, v. Davis (Tex. Civ.), 45 S. W.
60.'), a judgment unsupported by a pleading is fatal.
Insufficiency of Allegaticms in Petition fatal even to judgment by
default.
Approved in Hollywood v. Wellhausen, 28 Tex. Civ. 544, 68 S. W.
331, applying rule to suit to enforce tax lien based upon double
assessment.
56 Tex. 414r422, VEBAMENDI ▼. .UUTCUINS.
Where Great Lapse of Time has been permitted before suit was
brought, existence of community debts will be presumed where hus-
band has sold community property after wife's death.
Approved in Manchaca v. Field, 62 Tex. 142, and Box v. Word, 65
Tex. 166, both reaffirming rule; Smith v. Shinn, 58 Tex. 4, holding
after great lapse of time authority to grant power of sale presumed;
Harrison v. McMurray, 71 Tex. 129, 8 S. W. 615, holding power to
sell presumed from great lapse of time with supporting circum-
stances; Stooksbury v. Swan, 85 Tex. 572, 22 S. W. 966, holding
erroneous instruction that notarial seal presumed regularly and au-
thoritatively attached.
56 Tex. 423-430, BLUM ▼. DAVI&
Affidavit for Attachment stating that defendants "are about to
dispose of property or part thereof," is not objectionable as being
alternative.
Approved in Prince ▼. Turner, 2 Tex. Ap. Civ. 574, holding affi-
davit alleging person about to dispose of his property is sufficient;
Steinam v. Gahwiler (Tex. Civ.), 30 S. W. 474, an affidavit alleging
66 Tex. 431-452 NOTES ON TEXAS EEPORTS. 108O
that the debtor has disposed of his property with intent to defraud
his creditors is good.
Distinguished in Moody v. Levy, 58 Tex. 534, holding motion lo
quash property austained, affidavit using "injuring and harassing";
Dunnebaum v. Schram, 59 Tex. 282, 283, holding affidavit setting
up distinct statutory grounds for attachment insufficient.
Evidence of Damage from subsequent attachments inadmissible in
suit for damages for trrongful attachment.
Approved in Carothers v. Mcllhenny, 63 Tex. 143, holding fear
that others might secure prior attachment no ground for writ.
Under Bnle of Supreme Court* parties repeating or inserting
unnecessary matter in transcript will be taxed with unnecessary costs
incurred.
Approved in Stephenson ▼. Chappell, 12 Tex. Civ. 303, 36 8. W.
485, and McLennan Go. v. Graves (Tex.), 64 S.. W. 862, both reaffirm-
ing rule.
Miscellaneous. — Cited in Pace v. Smith, 57 Tex. 563, in separate
opinion majority holding proceeds of attached property, writ being
quashed, not subject to garnishment.
66 Tez. 431-434, MONTGOMEBY ▼. GABLTON.
Deed la not Void for Want of Certainty beeanse omitting call
of field-notes, where such call can be supplied and parol testimony is
admissible to aid deed.
Approved in Bowlea v. Beal, 60 Tex. 324,' holding deed describinsr
land with reasonable certainty and referring to deed in evidence
sufficient.
Motion for New Trial, on ground that petitioner has meritorious
cause of action is defective in not exhibiting evidence on which meri-
torious cause of action is based.
Approved in Dempsey v. Taylor, 4 Tex. Civ. 130, 23 S. W. 222, re-
affirming rule; Contreraa v. Haynes, 61 Tex. 106, holding application
for new trial must state facts npon which merits claimed; Morris v.
Edwards, 62 Tex. 209, refusing injunction where petition does not
show diligence on part of petitioner; Holliday v. Holliday, 72 Tex.
585, 10 S. W. 692, 3 L. B. A. 417, holding courts will not reverse
judgment except on showing which would produce different result;
Wichita Land etc. Co. v. Ward, 1 Tex. Civ. 313, 21 S. W. 131, hold-
ing court will not vacate sale of minor's property though no guardian
appointed; Sheppard v. Avery (Tex. Civ.), 32 S. W. 794, motion for
new trial will not be granted where plaintiffs do not aver that they
have a meritorious cause of action.
66 Tez. 439-450, HOUSTON ETC. BY. ▼. VAN ALSTTNE.
Equity will not Aid a Plaintiff whose relation binds him to care
and vigilance in behalf of defendant.
Approved in Jones v. Flournoy (Tex. Civ.), 87 S. W. 237, equity
will not relieve against a unilateral mistake.
Miscellaneous. — Cited in Lutcher v. United States, 72 Fed. 972^
holding inadmissible informal statement alleged to be deposition un-
der agreement not to object to form of taking testimony.
66 Tex. 461--462, WATSON y. MIMa
Partiea to a Usurious Contract cannot make a fresh contract com>
pounding interest at that time illegaL
1081 NOTES ON TEXAS REPORTS. 56 Tex. 452-468
Approved in Brown v. Crow (Tex. Civ.), 29 S. W. 654, compounding
interest in excess of the legal limit is usurious; Purvis v. Woodward,
78 Miss. 931, 29 So. 919, renewal note, with addition of provision for
attorney's fee, new contract within uaury law; Citizens' Nat. Bank v.
Donnell, 172 Mo. 415, 72 S. W. 934, where interest was compounded
at more than legal rate.
Distinguished in Blake ▼. Yount, 42 Wash. 104, 114 Am. St. Rep.
106, 84 Pac. 626, usury law not violated by compounding Interest at
maximum legal rate.
56 Tez. 452-461, HOUSTON ETC. BT. v. FOWLEB.
Bailroad Gompany Is not Liable in Damages for injuries to servant
in performance of service outside of duty, where his opportunities of
observing danger were equal to company's.
Approved in Fort Worth etc. Ry. v. Wrenn, 20 Tex. Civ. 633, 50
S. W. 212, holding company not responsible, engineer operating en-
gine without firemen having seen car ahead; Woodward Iron Co. v.
Jones, 80 Ala. 127, holding company not liable where plaintiff knew
of defect which prevented him seeing danger; Drake v. Union Pac.
By., 2 Idaho, 459, 21 Pac. 562, holding company not liable where
injured fireman, knowing danger, voluntarily amumes risk; Burke v.
Parker, 107 Mich. 90, 64 N. W. 1066, holding employer not liable for
injuries sustained by explosion while extinguishing fire. See note,
48 L. B. A. 804.
Distinguished in Galveston etc. By. v. Garrett, 73 Tex. 267, 15 Am.
St. Bep. 784, 13 S. W. 63, holding company responsible for injury
where use of dangerous coupling not explained.
Where Bailroad Tracks^ etc., were in Oood Bepair, and sufficient
under ordinary conditions, company is not liable for injuries received
in extraordinarily violent storm, where servant knew danger of ser* •
vice in 'storm.
Approved in Ft. Worth etc. By. ▼. Wrenn (Tex. Civ.), 50 S. W. 212,
Columbus etc. By. v. Bridges, 86 Ala. 452, 11 Am. St. Bep. 61, 5 So.
866, both reaffirming rule; Jackson v. Kansas City etc. B. B., 31 Kan.
763, 3 Pac. 503, holding company not liable where injured person
knew of defect causing injury; Patnode v. Harter, 20 Nev. 307, 21
Pac. 681, holding company not liable for injury where plaintiff fully
knew danger.
Distinguished in Fort Worth etc. By. v. Wilson, 3 Tex. Civ. 587,
24 S. W. 688, holding company liable where injury results from de-
fective roadbed and atorm together.
56 Tez. 461-468, OBEWB V. TAYLOB.
Person Injured by Neglect of Gounty Cleric in discharging official
duties has action for damages upon official bond.
Approved in Hudson v. Bandolph, 66 Fed. 220, reaffirming rule.
See notes, 95 Am. St. Bep. 87; 23 L. B. A. (n. s.) 127.
Mortgage for Unpaid Purchase Money Operates as Notice from
time of deposit with clerk for record.
Approved in Carothers v. Presidio Co., 4 Tex. Civ. 533, 23 S. W.
493, holding treasurer acting for county may sue on tax collector's
bond for failure to pay over money collected.
56 Tex. 468-482 NOTES ON TEXAS EEPOBTS. 1082
66 Tex. 468-477, WEBSTEB ▼. WILLIS.
Heirs may Sue or be Sued in their own right when administration
has been closed, or when there are no debtsr against estate and no
administration.
Approved in Mayers v. Jones, 62 Tex. 367, Moore v. Moore, 89 Tex.
33, 33 S. W. 218, and Buchanan v. Thompson, 4 Tex. Civ. 238, 23 S.
W. 328, reaffirming rule; Laas v. Seidel, 28 Tex. Civ. 142, 66 S. W.
872, mere insolvency of decedent will not support suit by devisee;
Schmidtke v. Miller, 71 Tex. 107, 8 S. W. 638, holding heirs not
liable unlessr deceased ancestor left assets; Lee v. Turner, 71 Tex.
266, 9 S. W. 150, holding plea in abatement good where petition
shows no necessity for suit by heirs; Low v. Felton, 84 Tex. 386,
19 S. W. 696, holding judgment against heirs not binding where no
administration of estate had; Turman v. Bobertson, 3 Tex. Ap. Civ.
264, holding generally heirs cannot be sued unless administration
had; Middleton v. Pipkin (Tex. Civ.) 56 S. W. 242, an heir is liable
for the value of property received from an ancestor in a suit to
recover property converted by the ancestor; Byrd v. Ellis (Tex. Civ.),
35 S. W. 1071, a creditor of a deceased person may recover from the
heirs directly when the estate of decedent renders administration
unnecesspary; Galveston etc. By. v. Kelley (Tex. Civ.), 26 S. W. 471,
an heir, to continue a suit brought by his ancestor, where there is no
administration of decedent's estate, must show that there was no
neces^ty to administer the same. See notes, 22 L. B. A. (n. s.)
456; 15 L. B. A. 493.
Distinguished in Peters v. Hood, 2 Tex. Ap. Civ. 327, holding heirs
may be sued without administration, when administration barred by
lapse of time.
Undeir Statute, Only Judgment in Personam can be rendered in suit
against heirs for debt of ancestor, and such judgment gives no specific
lien on property of debtor.
Approved in Kauffman v. Wooters, 79 Tex. 211, 13 S. W. 550, re-
affirming rule.
Distinguished in Blinn v. McDonald, 92 Tex. 612, 613, 50 S. W.
931, holding debts of ancestor lien upon property in hands of heirs.
56 Tex. 478-482, BBEWSTEB ▼. DAVIS.
Parol Evidence la Admissible to show that deed absolute on face
was intended as mortgage only when full, clear, and satisfactory.
Approved in Davis v. Brewster, 59 Tex. 94, same case on appeal;
Herring v. White, 6 Tex. Civ. 251, 25 S. W. 1017, holding parol evi-
dence admissible to prove deed absolute on face intended as mort-
gage; Andrews v. Bonham, 19 Tex. Civ. 181, 46 S. W. 903, holding
admissible testimony as to whether or not deed was intended as
mortgage.
Grantees Acting In Oood Faith in dealing with husband, deed would
not be mortgage because wife so intended it.
Approved in Coker v. Boberts, 71 Tex. 601, 9 S. W. 667, holding
bona fide purchaser from grantee, without notice, protected against
homestead rights.
Deed Made to Sureties on official bond of husband, after he had
admitted defalcation, to indemnify them for loss, will not be deemed
mortgage.
1083 NOTES ON TEXAS EEPOBTS. 56 Tex. 482-501
Approved in Kainer v. Blank, 6 Tex. Civ. 5, 24 S. W. 852, holding
owner executing deed and grantee giving agreement to reconvey on
repayment, transaction is mortgage.
66 Tex. 482-485, BULEMAN y. PBITOHETT.
Certificate of Acknowledgment of married woman's deed must show
that officer explained deed to her, and that she acknowledged it to
be her act, and that she declared wiffh not to retract it.
Approved in Estea v. Turner, 30 Tex. Civ. 368, 70 S. W. 1009, Jones
V. Bobbins, 74 Tex. 619, 12 S. W. 826, Callahan v. Houston, 78 Tex.
497, 14 8. W. 1028, Chamberlain v. Pybas, 81 Tex. 614, 17 8. W. 511,
Rhine v. Hodge, 1 Tex. Civ. 370, 21 8. W. 140, Freeman v. Preston
(Tex. Civ.), 29 S. W. 497, and Paine v. Baker, 15 E. I. 104, 23 Atl.
142, all reaffirming rule. Bee note, 108 Am. St. Bep. 565.
56 Tex. 486-496, GALVESTON OITT 00. v. GALVESTON.
Protest Against Paying Tax claimed to be illegal must clearly and
specifically point out property on which tax is claimed to be illegal.
Approved in Blanc v. Meyer, 59 Tex. 92, refusing injunction to re-
strain tax where legal tax unpaid and no injury shown. See note,
4 L. B. A. 304.
Paymeat of Demand Known to be illegal without immediate and
urgent necessity therefor is deemed voluntary.
Approved in Laredo v. Loury, 4 Tex. Ap. Civ. 561, 20 S. W. 90, re-
affirming rule; Houston v. Peeser, 76 Tex. 368, 13 8. W. 268, holding
person paying illegal tax, believing it to be illegal, pays voluntarily,
and cannot recover; Davie v. Galveston, 16 Tex. Civ. 18, 41 S. W.
146, holding owner paying tax under protest because illegal not in-
voluntary payment.
56 Tex. 496-n501, TEXAS ETC. BY. ▼. SUTOB.
Doctrine of Dedication or Estoppel in Pais is Applicable to right
of way for railroad.
Approved in Venable v. Wabash etc. By., 112 Mo. 121, 20 8. W.
498, 18 L. B. A. 68, holding widow not entitled to dower in land con-
veyed to railroad as right of way.
Distinguished in Watson v. Chicago etc. By., 46 Minn. 325, 48
N. W. 1130, as being obiter, while holding common-law dedication
cannot be made to railroad for public use.
Where Owner Verbally Consents to occupancy of land by railroad
on certain conditions, railroad acquires vested right thereto not
defeasible by failure to perform conditions.
Approved in Evans v. Gulf etc. By., 9 Tex. Civ. 126, 28 8. W. 904,
reaffirming rule; Gillean v. Frost, 25 Tex. Civ. 375, 61 8. W. 347,
holding owner declaring lake and park for public use, use thereof
constitutes dedication.
Distinguished in Elyton Land Co. v. South etc. Ala. B. B., 95 Ala.
642, 10 So. 272, holding public hav no right in property dedicated to
railroad as right of way.
Railroad Is Liable Only for Damages proximately resulting from
failure to construct and maintain proper ditches.
Approved in T. & N. O. B. B. v. Sutor, 59 Tex; 31, same case on
appeal reversing former judgment to simplify questions at issrue.
Miscellaneous.— Harris v. Spence, 70 Tex. 620, see 8 8. W. 315, cited
to the point that in absence of statement of facts, judgment will not
56 Tex. 501-564 NOTES ON TEXAS EEPORTS. 1084
be reversed where it is not shown that excluded testimony was rele-
vant to the pleadings.
66 Tez« 601-506^ WELLBORN ▼. ODD FELLOWS^ BLDO. ETC. CO.
Deposit of Money by Hasbaad to account and credit of wife is not
conclusive of husband's intention to make gift to her as to her separate
property.
See note, 86 Am. Dec. 641.
66 Tex. 606-613, GALVESTON ETC. B. B. ▼. BUTLES.
It will be Presumed That Debts have been paid after twelve years.
Followed in Taylor v. Taylor (Tex. Civ.), 26 S. W. 891, following
rule.
Single Creditor may Maintain Suit without making other creditor*
parties; from lapse of time and silence of tru£tees all debts of com-
pany are presumed satisfied.
Approved in G. H. & S. A. B. B. ▼. Hume, 59 Tex. 48, holding
equitable action maintainable where right embarrassed by questions
regarding trusrts; Lyons etc. Hardware CJo, v. Perry Stove Mfg. Co.,
88 Tex. 484, 27 S. W. 103, holding beneficiaries not necessary parties
in suit to set aside deed of trust preferring creditors; Schwartzberg
T. Friedman, 12 Tex. Civ. 343, 34 S. W. 337, holding garnishment
appropriate remedy to reach property held under fraudulent transfer.
Miscellaneous. — See note, 59 L. B. A. 384.
66 Tez. 614-621, COLEMAN v. THUBMOND.
Statate of Limitations Does Not Bun Against County in favor oif
person in possession of lands.
Approved in Ralston v. Weston, 46 W. Ya. 551, 76 Am. St. Bep.
840, 33 S. E. 329, reaffirming rule; Delta County v. Blackburn, 100
Tex. 58, 93 S. W. 422, limitation does not run against county as trus-
tee of school funds; Marsalis ▼. Garrison (Tex. Civ.), 27 S. W. 932,
statute of limitation does not run against the county acting as the
representative of sovereignty. See notes, 3 L. B. A. (n. s.) 747; 18
L. R. A. 150.
Distinguished in H. & T. C. By. v. Travis Co., 62 Tex. 18, 19, hold-
ing statute of limitations runs against county in personal action;
Johnson v. Llano Co., 15 Tex. Civ. 422, 39 S. W. 995, holding limita-
tions run against county suing to recover land not devoted to public
use; Link v. Murphy, 2 Tex. Ap. Civ. 22, holding action on bond to
recover hire of county convict barred after four years.
Fiyo Years' Continuons, Adyerse, and exclusive possession of street,
under deed properly acknowledged and duly recorded, with payment
of taxes, will bar abutting owners.
Approved in Penden v. Crenshaw (Tex. Civ.), 81 S. W. 372, re-
affirming rule. See notes, 26 L. B. A. 460; 18 L. B. A. 150.
66 Tex. 639-^64, MILLEB ▼. MENEJS.
Tendency has Always been to Liberalize policy of homestead ex-
emption as given by constitution and legislative acts.
Approved in Madden v. Madden, 79 Tex. 601, 15 S. W. 483, hold-
ing mortgage on homestead by husband to wife is void.
Under Constitution, Urban Homestead Exemption embraces resi-
dence of family and lots used by head of family as place of business.
1085 NOTES ON TEXAS EEP0BT8. 56 Tex. 565-575
Approved in Clift ▼. Kaufman, 60 Tex. 65, 67, Wright v. Straub,
64 Tex. 66, and Webb ▼. Hayner, 49 Fed. 603, 604, all reaffirming rule;
Inge V. Gain, 65 Tex. 79, 81, holding insolvenVs assignment of place
of business will not defeat wife's homestead rights; Liverpool etc.
Ins. Co. V. Ende, 65 Tex. 121, holding assignment for benefit of credi-
tors will not convey place of business; Willis v. Morris, 66 Tex. 634,
1 8. W. 803, holding exemption ceases on abandonment of place as
place of business. See notes, 12 Am. St. Bep. 685; 70 Am. Dec. 353.
Distinguished in Mikael v. Equitable Securities Co., 32 Tex. Civ.
185, 74 S. W. 69, holding rule changed by statute; In re Flannagan,
117 Fed. 697, denying business homestead to bankrupt where he had
no definite intention of resuming business; Shryock v. Latimer, 57
Tex. 677, holding place of business exempt from forced sale only
while actually used as such; Willis v. Mike, 76 Tex. 84, 13 S. W. 59,
holding voluntary conveyance of place of business conveys title;
Western etc. Investment Co. v. Oanzer, 63 Fed. 658, in dissenting
opinion, majority holding person advancing money to pay vendor's
lien on homestead subrogated to lien.
Constitational ProvlBions for preservation of full urban homestead
exemption are inapplicable to rural homestea^l exemption.
Approved in Exall v. Security etc. Co., 35 Tex. Civ. 645, 39 S. W.
960, holding farm used by resident of city for business purposes not
exempt from execution.
56 Tex. 565-675, EAST TEXAS FIBE INS. CO. ▼. DYCHES.
Petition to Becoyer for Loss by Fire on insurance policy need not
set out policy nor any terms thereof in nature of conditions subsequent
or prohibitions on insured.
Approved in Western Union Tel. Co. v. Finer, 9 Tex. Civ. 154,
29 S. W. 67, holding stipulation in telegraph blank regarding dam-
ages condition subsequent, and need not be alleged; Burlington Ins.
Co. V. Bivers, 9 Tex. Civ. 181, 28 S. W. 454, holding petition on policy
need not deny loss caused by invasion, etc.; German Ins. Co. v. Cain
(Tex. Civ.), 37 S. W. 659, no error not to consider clauses exempting
payment when not relied on as a defense.
Fetition to Becover Loss by Fire, on insurance policy requiring
proof of loss is sufficient if alleging notice of loss and waiver of
proof of loss by authorized agent.
Approved in St. Paul etc. Ins. Co. v. McGregor, 63 Tex. 405, holding
formal proof of loss unnecessary after adjustment of losses; Com-
mercial etc. Assur. Co. v. Meyer, 9 Tex. Civ. 13, 29 8. W. 95, holding
proof of loss waived by offer of certain sum in settlement of loss;
AUemania Ins. Co. v. Fred, 11 Tex. Civ. 315, 32 S. W. 245, holding
defendant in action on insurance policy has burden of proving facts
avoiding it; Western Home Ins. Co. v. Thorp, 48 Kan. 244, 28 Pac.
992, holding waiver of proof of loss cannot be proved unless pleaded;
Kahn v. Traders' Ins. Co., 4 Wyo. 468, 62 Am. St. Bep. 75, 34 Pac.
174, holding offers of settlement by adjuster admissible to show
waiver of proof of loss; Phenix Ins. Co. v. Willis, 70 Tex. 15, 8 Am.
St. Rep. 567, 6 S. W. 829, holding garnishment suit lies against com-
pany by creditor of insured though proof of loss not made.
Where Insured Is in Position to compel specific performance of bond
to convey, warranty of fee simple ownership is not broken.
Approved in Hamburg-Bremen Fire Ins. Co. v. Buddell, 37 Tex. Civ.
33, 82 S. W. 827, reaffirming rule; Alamo etc. Ins. Co. v. Lancaster, 7
56 Tex. 575-594 NOTES ON TEXAS EEPOBTS. 1086
Tex. Civ. 680, 28 S. W. 127, holding policy not forfeited because of lien
on land to secure notes; Queen Ins. Co. v. May (Tex. Civ.), 35 S. W.
831, holding company liable where the insured was in a position to en-
force the specific performance of a contract to convey the fee simple
title; Phoenix Assurance Co.- v. Deavenport, 16 Tex. Civ. 286, 41 S. W.
400, holding grantee of owner of all corporation stock owner in fee
simple within insurance policy; Smith v. Phoenix Ins. Co., 91 Cal. 336,
25 Am. St. Eep. 199, 27 Pac. 741, 13 L. R. A. 475, holding lessee with
agreement to purchasre may recover insurance for loss of buildings;
Baker v. State Ins. Co., 31 Or. 46, 65 Am. St. Rep. 810, 48 Pac. 701,
holding warranty of titl« not broken where insured in possession
under contract of purchase; Manchester Fire Assur. Co. v. Abrams,
89 Fed. 935, holding warranty of fee simple title not broken where
injured equitably owner of property. See note, 20 L. E. A. (n. a.)
777.
Distinguished in Fire Assn. v. Calhoun, 28 Tex. Civ. 412, 67 S. W.
154, denying recovery where insurer owned undivided half and had
verbally agreed with co-owner to purchase remaining half.
Miscellaneous. — Lowell v. Ball, 58 Tex. 564, historically referring
to former appeal; Texas etc. Fire Ins. Co. v. Bowlin (Tex. Civ.), 70
S. W. 798, and St. Paul etc. Ins. Co. v. Hodge, 30 Tex. Civ. 259, 70 S.
W. 575, both holding proof of waiver cannot be made under allega-
tion that condition precedent wav not complied with.
56 Tex. 576;-579, COUNTY OF OAI.VEST0N V. NOBLE.
Where Record Fails to Show Action on Demurrer to jurisdiction, all
parties before court are deemed to have submitted to jurisdiction.
Approved in Wateon v. Baker, 67 Tex. 51, 2 S. W. 376, holding
plea or exception to jurisdiction waived unless acted upon; Blum v.
Strong, 71 Tex. 330, holding plea in abatement waived by trial on
merits unless acted upon; Grant v. Reavis (Tex. Civ.), 34 S. W. 133,
failure to mention in the judgment any action on the plea of privi-
lege is not a finding against it; Grand Lodge v. Stumpf, 24 Tex. Civ.
310, 58 S. W. 841, holding consent to trial on merits waiver of plea
in abatement.
Since tbe Expense of Keeping PrlsonerB indicted within its limita
falls on each county, the amount collected on forfeited bail bond should
be paid to such county.
Approved in State v. June, 63 Kan. 8, 64 Pac. 984, forfeited bail
bond inures to county, though supreme court declared forfeiture
while sitting elsewhere.
56 Tex. 679-^94, BALL ETC. CO. ▼. LOWELL.
Under Statute, It is Duty of County Clerk to make out and trans-
mit transcript to clerk of district court to first succeeding term, if
possible; if not, to next thereafter.
Distinguished in Davis v. American etc. Mortgage Co., 12 Tex.
Civ. 40, 41, 33 S. W. 272, 273, holding dismissal of appeal proper,
though failure to file transcript due to clerk.
No Allowance In Lieu of Homestead will be made to wife where
homestead was established at time of husband's death.
Approved in Shippey v. Hough, 19 Tex. Civ. 600, 47 S. W. 674,
holding widow entitled to homestead allowance of two hundred acres
out of tract owned by husband.
1087 NOTES ON TEXAS REPORTS. 56 Tex. 594-609
Distinguished in Glift y. Kaufman, 60 Tex. 68, 69, holding wife en-
titled to allowance in lieu of homestead where she has no interest in
resridence.
Wlien Homestead l8 Established on separate property of wife it is
homestead of family.
See note, 56 L. R. A. 60.
«
66 Tex. 594-609, INDIANOLA v. GXTLF ETC. BY.
Consolidation of Two SaHroad Companies to form new company
renders new company liable for all valid contracts and liabilities of
its constituents.
Approved in Indianola R. R. v. Fryer, 56 Tex. 617, and Proctor
V. San Antonio etc. Ry., 26 Tex. Civ. 149, 62 S. W. 938, both reaffirm-
ing rule.
Orant by City to Railroad of Bight of Way through streets is legal
eonsideration for bond and agreement by company to exten<d road.
Approved in Edwards County v. Jennings (Tex. Civ.), 33 S. W.
586, following rule; North Side Ry. v. Worthington (Tex. Civ.), 27
S. W. 750, a railway company composed of substantially the same
persons, and having same purpose, etc., as a land company, may join
with the land company in a mortgage; Galveston etc. Ry. v. Gal-
v<eston (Tex. Civ.), 37 S. W. 31, company cannot defeat a forfeiture
of a contract by nonperformance when it has enjoyed the fruits of
the contract; Nilson v. Jonesboro, 57 Ark. 177, 20 S. W. 1095, hom-
ing contract providing for failure to complete railroad provides for
liquidated damages; Eureka Light etc. Co. v. Eureka, 5 Kan. Ap.
675, 48 Pac. 937, holding sum deposited with city guaranteeing work
on vtreet railway is a forfeit. See note, 36 L. R. A. 34.
City has Power to Contract to Give, and railroad has power to con-
tract for right of way, through streets of city, and defense of ultra
vires is unavailable.
Approved in Texas etc, R. R. v. Robards, 60 Tex. 551, 48 Am.
Rep. 270, holding railroad has power to contract for building hotel
at depot; G. C. Ry. v. G. C. S. Ry., 63 Tex. 531, holding city has
full control of streets and use thereof by railroads; Logan v. Texas
etc. Loan Assn., 8 Tex. Civ. 494, 28 S. W. 143, party benefiting by
contract cannot urge defense of ultra vires; Laredo v. International
Bridge etc. Co., 66 Fed. 249, holding city has power to convert ferry
into bridge privilege for limited period; State v. Jacksonville Street
By., 29 Fla. 606, 10 So. 594, holding city has control of use of streets
by railways; dissenting opinion in Missouri etc. Ry. Co. v. Freeman,
97 Tex. 408, 409, 79 S. W. 15, 16, majority holding railroad not liable
for smallpox communicated by its negligent hospital employee.
Distinguished in Galveston etc. Ry. v. Galveston, 90 Tex. 404, 407,
408, 39 S. W. 98, 100, holding condition that railroad extend line
beyond city's authority in granting use of streets.
A Sum Stipulated in a Contract for faithful performance as stipu-
lated damages is recoverable as such.
Approved in Rucker v. Campbell, 35 Tex. Civ. 180, 79 S. W. 628,
treating damages for breach of contract not to re-engage in business
as liquidated; Whiting v. Village of New Baltimore, 127 Mich. 71,
86 N. W. 405, deposit made to secure building of street railroad for-
feited as liquidated damages; Fessman v. Seeky (Tex. Civ.), 30 S. W.
269, where a certain sum is to be paid as liquidated damages in viola*
£6 Tex. 609-629 NOTES OX TEXAS BEPOBTS. lOSS
tion of an agreement, both parties must abide bj the agreement.
See note, 108 Am. St. Bep. 54.
Amount of Bond given by railroad to secure agreement to extend
road is liquidated damages.
Approved in City of Salem v. Anson, 40 Or. 348, 91 Am. St. Bep.
485, 67 Pac. 194, 56 L. B. A. 169, applying rule to bond given to
secure agreement to build electric light plant.
City may Grant uee of streets to railway company on condition
that road be extended for specific distance.
Approved in City of Salem v. Anson, 40 Or. 344, 91 Am. St. Bep.
485, 67 Pac. 192, 56 L. B. A. 169, city might condition electric light
franchise on completion of plant within specific time.
56 Tex. 609-617, INDIANOLA B. B. ▼. FBY£B.
Iiiabilities of Oonatitaent Bailxoad Oompanies, after consolida-
tion and formation of new company according to charter and stat-
ute, are enforceable only against new company.
Approved in Proctor v. San Antonio etc. By. 26 Tex. Civ. 149, 62
S. W. 938, and Langhorne v. Bichmond By., 91 Va. 375, 22 S. E.
161, both reaflttrming rulej Gulf etc. By. v. Newell, 73 Tex. 338, 15
Am. St. Bep. 791, 11 S. W. 343, holding consolidation of railroads
impossible without consent of state and stockholders; Evans t. Inter-
state etc. By., 106 Mo. 602, 17 S. W. 490, 14 L. B. A. 407, holding
consolidation of railroads does not abate suit pending against one
of consolidated companies; Pennsylvania etc. B. B. v. Harkins, 149
Pa. 132, 24 Atl. 179, holding sureties on bond not released by con-
solidation with another railroad. See notes, 89 Am. St. Bep. 617;
23 L. B. A. 234.
Distinguished in Calvert etc. By. Co. v. Driskill, 31 Tex. Civ. 204,
71 S. W. 999, under special act, consolidation of corporation with
another did not prevent judgment against it in pending suit.
56 Tex. 618-627, FBANEUN ▼. TIEBNAN.
Appellate Jurisdiction is not Defeated, though appeal bond ia con-
ditioned for payment of all costs accrued and to accrue, and omits
condition "for prosecution of appeal with effect," and is not objected
to until appeal is long pending.
Approved in Laird v. Frieberg, 2 Tex. Ap. Civ. 99, holding suffi-
cient appeal bond conditioned to prosecute appeal "with effect."
Lead Pencil Entries In State OontroUer'a Books are admissible
in evidence.
Approved in Franklin v. Tiernan, 62 Tex. 98, 101, reaffirming and
explaining rule.
56 Tez. 626>629, GOLDEN ▼. PATTEBSON.
Question of Identity of "J. S. G." and "J. J. G.," under whom parties
in trespass to try title claim, is for jury.
Approved in Williams v. Thomas, 18 Tex. Civ. 474, 44 S. W. 1074,
reaffirming rule; Lake v. Copeland, 31 Tex. Civ. 359, 72 S. W. 99,
question of defendant's ownership of land should have been left
with jury; East Texas etc. Ins. Co. v. Brown, 82 Tex. 635, 18 S. W.
714, holding question of agency is for jury; Huff v. Crawford, 89
Tex. 221, 34 S. W. 609, holding question of delivery of certificate is
for jury.
1089 NOTES ON TEXAS REPORTS. 66 Tex. 630-651
56 Tez. 630-641, ROGERS ▼. BRADFORD.
Where Same Questions were Decided on Former Appeal, court will
refuse to coii8id€r them on second appeal.
Approved in Lowell v. Ball, 58 Tex. 566, refusing to review judg-
ment rendered at former term.
No Other or Dliferent Right or Interest than that levied on passes
hj the execution sale thereon.*
Approved in Baley v. Abright (Tex. Civ.), 43 S. W. 540, purchaser
at an execution sale with notice that the property levied on belonged
to a third party takes no title thereto.
A Levy and Sale are Void for Uncertainty where the undivided
half interest of R. and O. is levied on and sold, where R. and O.
each individuallj own such undivided half interest.
Approved in Sun Mutual Ins. Go. v. Seeligson, 59 Tex. 5, gar-
nishee, when property before the court, may show that the persons
cited as defendants were not in fact defendants, and not those to
whom he was indebted.
56 Tez. 643-647, MORTON ▼. LOWEUa.
To Defeat Trust Deed, Borden of Proof is on persons claiming
under superior title to show bona fide purchase without notice for
valuable consideration paid before notice.
Approved in Peterson y. McGauley (Tex. Civ.), 25 8. W. 829, re-
affirming rule.
Evidence not Showing XTnlcnown Portion of consideration paid
before notice of trust insufficient to establish bona fide purchase
without notice.
Approved in Meyers v. Bloon, 20 Tex. Civ. 557, 50 S. W. 218,
reaffirming rule; John v. Battle, 58 Tex. 601, 602, holding wife
without notice not estopped by silence from claiming against hus-
band's grantee.
Distinguished in Halbert v. De Bode, 15 Tex. Civ. 630, 40 S. W.
1018, holding burden of proof on equitable owner to show subse-
quent purchaser's knowledge of equity.
Acknowledgment of Deed Taken by Trustee primarily empowered
to act vitiates deed.
Approved in Bexar etc. Loan Assn. v. Heady, 21 Tex. Civ. 156,
57 S. W. 583, reaffirming rulej Miles v. Kelley, 16 Tex. Civ. 153, 40
S. W. 602, holding no mechanic's lien exists where wife's acknowl-
edgment taken by stockholder of corporation having lien.
66 Tex. 647-651, 42 Am. Rep. 691, HENDERSON ▼. OWNBY.
Defendant in Action of Trespass to Try Title making improve-
ments cannot claim that improvements were made in good faith.
Approved in Estell y. Cole, 62 Tex. 698, and Walker v. Simkins,
2 Tex. Ap. Civ. 58, both reaffirming rule.
2 Tez. Notes— «9
NOTES
ONTHB
TEXAS REPOETS
CASES IN 57 TEXAS.
67 T«z. 1-4, WATKINS ▼. HALI..
SurviTlng Husband may Sell Entire Oommnnlty Property to pay
eommuiiity debts, the children being entitled to their share of sur-
plus after payment.
Approved in Wilson v. Helms, 59 Tex. 684, upholding surviving hus-
band's sale of community property; Ashe v. Yungst, 65 Tex. 636, up-
holding survivor's sale of community homestead to pay debts;
Graham v. Miller, 26 Tex. Civ. 7, 62 S. W. 114, awarding recovery on
survivor's bond for community property disposed of. See note, 19 L.
B. A. 234.
Oertiflcate of Acknowledgment in substantial compliance with stat-
ute is sufficient.
Approved in DriscoU v. Morris, 2 Tex. Civ. 608, 21 8. W. 631,
Slack V. Dawes, 3 Tex. Civ. 522, 22 S. W. 1053, Sloan v. Thompson,
4 Tex. Civ. 426, 23 8. W. 616, Cook v. Cook, 5 Tex. Civ. 32, 23 S.
W. 928, and Sowers v. Peterson, 59 Tex. 219, all holding acknowl-
edgment without proof of grantor's identity indorsed thereon suffi-
cient under statute; /Wren v. Howland, 33 Tex. Civ. 92, 75 8. W.
897, unnecessary under act of 1846 for officer to certify that witness
was known to him; Salmon v. Huff, 80 Tex. 136, 15 S. W. 1047,
holding certificate must substantially comply with statute; Beitei
V. Wagner, 11 Tex. Civ. 367, 32 S. W. 367, holding certificate not
stating that party was known to notary insufficient; First Nat. Bank
V. Hicks, 24 Tex. Civ. 272, 59 S. W. 844, holding certificate stating
appearance and identity of party sufficient. See note, 108 Am. St.
Rep. 566.
57 Tex. &>7, MULLIKS ▼. WEAVER.
Oertiflcate of Acknowledgment of married woman in mibstantial
compliance with statute is sufficient.
Approved in Sowers v. Peterson, 59 Tex. 219, holding acknowl-
edgment without proof of grantor's identity indorsed thereon suffi-
cient; Salmon v. Huff, 80 Tex. 136, 15 S. W. 1047, holding certificate
must substantially comply with statute; McKinney v. Matthews
(Tex. Sup.), 6 S. W. 797, inserting in married woman's deed that
(1091)
57 Tex. 8-17 NOTES ON TEXAS EEPOETS. 1092
she fully understood the nature of the deed is not a sufficient com-
pliance with the statute. See note, 108 Am. St. Eep. 567.
Distinguished in Tiemann ▼. Cobb, 35 Tex. Civ. 290, 80 S. W. 251,
holding married woman's acknowledgment insufficient for failure to
show that she had willingly signed deed.
Certificate of Acknowledgment of Married Woman showing that
she was examined privily and apart from her husband, and that the
deed was explained to her, is sufficient.
Approved in Clark v. Groce, 16 Tex. Civ. 457, 41 8. W. 670, hold-
ing certificate stating separate explanation to wife and her free
signing sufficient.
Distinguished in Langton v. Marshall, 59 Tex. 298, holding ac-
knowledgment stating wife's understanding of deed iuBufficient.
57 Tex. S-ll, SAXTNDEBS ▼. HABT.
Long Acquiescence in Erroneous Surrey may operate as estoppel
against an innocent purchaser.
Approved in Timon v. Whitehead, 58 Tex. 297, holding owners
surveying land and recording boundaries estopped to claim more;
New York etc. Land Co. v. Gardner (Tex. Civ.), 25 8. W. 738, one
authorizing another to survey his lands and establish boundaries
and sell the same is bound by the latter's representations as to the
boundaries; Carden v. Short (Tex. Civ.), 31 S. W. 248, one is es-
topped from claiming homestead in trust property where he avers
that he has no interect in it, and claims other property as a hom€»-
stead.
State cannot be Bound by estoppel.
Approved in Marsalis v. Garrison (Tex. Civ.), 27 S. W. 932, re-
affirming rule; Sullivan v. State, 41 Tex. Civ. 95, 95 8. W. 648,
applying rule to question of boundaries of Mexican grant; Camer-
on's Exrs, V. State (Tex. Civ.), 67 S. W. 358, state, having received
no consideration, not estopped from reclaiming lands erroneously
patented to county not belonging to state.
57 Tez. 11-13, GATLIK ▼. ORGAN.
Defendant^ not Assailing Title, is not compensated for improve-
ments, unless without negligence, or unless plaintiff stood by with-
out giving notice.
Approved in Medlin v. Wilkins, 60 Tex. 419, Butts v. Caffall (Tex.
Civ.), 24 S. W. 380, both following rule; Thompson v. Comstock, 59
Tex. 320, applying rule and disallowing value of improvements; Wood
V. Cahill, 21 Tex. Civ. 40, 50 S. W. 1072, allowing recovery of
improvements placed on another's land in good faith. See note, 81
Am. St. Rep. 172.
57 Tez. 14-17, GBAOE ▼. HANKS.
Testimony of Single Witness as to declarations of deceased, al-
leged to be trustee, is not sufficient as against deed purporting to
convey the legal title.
Approved in Kelly v. Short (Tex. Civ.), 75 S. W. 883, applying rule
to oral partition agreement; Muckleroy v. House, 21 Tex. Civ. 674,
52 S. W. 1039, holding uncorroborated testimony of witness insuffi-
cient to establish decedent's deed as mortgage; Williams v. Emerson,
22 Tex. Civ. 526, 55 S. W. 597, holding parol trust may be ingrafted
on deed absolute on its face.
1003 NOTES ON TEXAS EEPOETS. 57 Tex. 17-34
Distinguished in Powell Estate v. Walker, 24 Tex. Civ. 316, 58 S.
"W. 840, admitting testimony of decedent's declarations to show
consideration to be paid under deed.
It is Sufficient if 8in£^e Witness testifying as to declarations of
deceased is corroborated by other portions of his own testimony.
Approved in Wagner v. Isensee, 11 Tex. Civ. 493, 33 S. W. 156,
admitting son's testimony of deceased father's declarations to estab-
lish trust in land.
67 T«z. 17-22, BELCHEB ▼. MUIHALL.
Oontemporaaeous Parol Agreement cannot be set up to vary terms
of written contract.
Approved in Johnson v. Nasworthy, 4 Tex. Ap. Civ. 167, 16 S. W.
759, Willis V. Byars, 2 Tex. Civ. 136, 21 S. W. 321, Kelley v. Collier,
11 Tex. Civ. 361, 362, 32 S. W. 432, CoverdiU v. Seymour, 94 Tex.
8, 57 S. W. 39, all applying rule; Bruner v. Strong, 61 Tex. 559,
rejecting evidence of prior conversations to vary written contract;
Aubrecht v. Powers, 1 Tex. Civ. 285, 21 S. W. 320, rejecting parol
to vary written settlement of case; Parker v. American etc. Bank
(Tex. Civ.), 27 S. W. 1074, parol evidence is inadmissible to vary
the terms of a written contract understood by both parties; Bruce
V. Brown (Tex. Civ.), 25 S. W. 445, and Janes v. Perd Heim Brew-
ing Co. (Tex. Civ.), 44 S. W. 898, parol evidence tending to vary
a written contract is inadmissible; Byars v. Byars, 11 Tex. Civ. 567,
32 S. W. 926, disallowing parol to change absolute deed to one on
condition. See notes, 13 L. B. A. 621; 6 L. R. A. 36.
Distinguished in Womack v. Wamble, 7 Tex. Civ. 275, 27 8. W.
154, admitting proof of other consideration than that expressed in
deed; Building & Loan Assn. v. Hamm (Tex. Civ.), 36 S. W. 314,
parol evidence is inadmissible to vary the terms of unambiguous
contract; Foote v. Frost (Tex. Civ.), 39 S. W. 330, parol evidence is
not admissible to vary the terms of a contract in the absence of
fraud and mistake.
67 Tex. 22-28, BBUMDIQE ▼. BUTHEBFOBO.
Will must be Probated in This State to be a muniment of title.
Approved in Ochoa v. Miller, 59 Tex. 461, rejecting will as evi-
dence of title, without probate.
57 Tex. 28-30, SOHUSTEB ▼. LA LONDE.
Objection That Juror was not a Freeholder cannot be taken after
verdict.
Approved in Alexander v. Von Koehring (Tex. Civ.), 77 S. W. 630,
applying rule where juror had not paid poll tax; International etc.
By. V. Woodward, 26 Tex. Civ. 394, 63 S. W. 1054, Newman v. Dod-
Bon, 61 Tex. 96, both disallowing objection to juror after verdict.
57 Tex. 31-34, BBOOKS ▼. CHATHAM.
Mere Intention Does not Oonstitnte Homestead, but land, not con-
tiguous to residence, must be used for convenience or support of
family.
Approved in Johnson v. Burton, 39 Tex. Civ. 250, 87 S. W. 181,
mere indefinite intention to occupy property as homestead, unaccom-
panied by acts of preparation, insufficient; Heidelbach etc. Co. v.
Carter, 34 Tex. Civ. 582, 79 S. W. 348, holding noncontiguous land
57 Tex. 35-42 NOTES ON TEXAS REPOBTS, lOU
used as pasture to be part of rural homestead; Allen y. Whitaker
(Tex. Civ.), 27 S. W. 508, to constitute subsequently purchased lota
part of previous urban homestead, they must be used in connection
therewith for homestead purposes; Simonton v. Majblum, 50 Tex. 10,
limitation runs in favor of adverse holder of land claimed as home-
stead; Baldeschweiler v. Ship, 21 Tex. Civ. 83, 50 S. W. 645, Ander-
son V. Sessions, 93 Tex. 283, 77 Am. St. Bep. 876, 51 S. W. 876 (dis-
senting opinion, S. C, 93 Tex. 286, 77 Am. St. Bep. 881, 51 S. W.
878), both upholding homestead on detached lot used as family
garden; Stark v. Ingram, 2 Posey U. C. 636, Collier v. Betterton, 8
Tex. Civ. 484, 29 S. W. 492, both disallowing homestead on showing
of mere intention; Miles v. Kelley, 16 Tex. Civ. 153, 40 8. W. 602,
upholding homestead where wor)c was begun on dwelling-house; Weat-
em Mortgage etc. Co. v. Burford, 67 Fed. 867, holding homestead
exempt from mortgage; Watkins v. Little, 80 Fed. 331, holding par-
ties estopped to claim homestead in mortgaged part of land. See
note, 87 Am. Dec. 279.
Distinguished in Birdwell v. Burleson, 31 Tex. Civ. 33, 72 S. W.
448, upholding exemption wh«re husband rented out homestead with
intention to return thereto; Gardner v. Douglass, 64 Tex. 78, uphold-
ing homestead after declaration of intention and occupation; Wolf
V. Butler, 8 Tex. Civ. 470, 28 S. W. 52, Cameron v. Gebhard, 85 Tex.
614, 34 Am. St. Bep. 834, 22 S. W. 1034, both upholding homesteai
before occupancy on showing of intention, coupled with acts giving
notice.
57 Tex. 35-S6y TUTT ▼. THORNTON.
Payment by Surety Does not ExtJngnlah Note, and he may sue
principal on note.
Approved in McCIure v. Johnson, 10 Okl. 666, 673, 65 Pac. 104,
106, Carpenter v. Minter, 72 Tex. 372, 12 S. W. 180, Murphy v. Gage
(Tex. Civ.), 21 S. W. 397, all following rule; G. H. etc. B. B. v.
Freeman, 57 Tex. 157, maintaining suit by assignee of right to dam-
ages against railroad; Bush v. Bishop, 60 Tex. 178, awarding con-
tribution against cosureties on bond; Faires v. Cockerell, 88 Tex.
432, 31 S. W. 192, 28 L. B. A. 528, maintaining action against
co-obligors on railroad subscription by one paying; Bell v. Gammon,
3 Tex. Ap. Civ. 477, holding surety paying debt substituted to all
rights of creditor. See note, 68 L. B. A. 547, 548, 585, 586.
Disapproved in Zuellig v. Hemerlie, 60 Ohio St. 33, 71 Am. St. Bep.
711, 53 N. E. 449, holding surety cannot sue at law on note, bat
only on implied assumpsit.
When Indorser Pays Note and sues maker, erasure of indorsement
not material alteration as between parties.
Approved in First Nat. Bank v. Nordstrom, 70 Kan. 487, 78 Pae.
805, erasure of words "with exchange" in note not material altera-
tion. See note, 86 Am. St. Bep. 104.
57 Tex. 37-42, BBABEN ▼. OOSR
Interest on Separate Property is community property.
Approved in Scott v. Sloan, 3 Tex. Civ. 303, 23 S. W. 42, affirming
rule; Smith v. Bailey, 66 Tex. 554, 1 S. W. 628, Epperson v. Jones,
65 Tex. 428, both holding profits from investment of wife's separate
estate community property; Martin Brown Co. v. Perrill, 77 Tex.
204, 13 S. W. 977, awarding recovery to wife of principal and inter-
1095 NOTES ON TEXAS BEPOBTS. 57 Tex. 43-54
«8t on ber separate loan; Heidenheimer v. Felker, 1 Tex. Ap. Civ.
153, holding profits from business conducted by either spouse com-
munity property; Cabell v. Menczer (Tex. Civ.), 35 S. W. 207,
interest accruing on the separate property of the wife is community
property; Carlisle ▼. Sommer, 61 Tex. 127, holding money paid under
note given on sale of wife's separate property protected; Marx v.
Lange, 61 Tex. 550, holding wife's capital invested in merchandise
protected; Stringfellow v. Sorrells, 82 Tex. 278, 18 S. W. 689, hold-
ing increased value of mules belonging to wife separate property.
See notes, 86 Am. Dec. 633, 639; 126 Am. St. Bep. 113.
Property Purchased With Separate and Oommniiity Money belongs
in like proportion to the community and one spouse.
Approved in Heintz v. Brown, 46 Wash. 389, 123 Am. St. Bep. 937,
90 Pac. 212, reaffirming rule; Cleveland v. Cole, 65 Tex. 406, holding
wife's interest in land purchased partly with separate estate pro-
tected from husband's debts. See notes, 86 Am. Dec. 634; 126 Am.
St. Bep. 104.
57 Tex. 4^-47, JONES ▼. PYBON.
Land not Scheduled Pasaee to Assignee in bankruptcy, and not
being disposed of returns to bankrupt or his heirs.
Approved in Burton v. Perry, 146 111. 112, 34 N. E. 71, reaffirming
rule; Bochester Lumber Co. v. Locke, 72 N. H. 25, 54 Atl. 707,
debtor cannot object to attachment levied less than four months
prior to bankruptcy where trustee does not do so; Imhoff v. Whittle
(Tex. Civ.), 81 S. W. 817, judgment not proved ceases to be claim
against either bankrupt or his estate; Lasater v. First Nat. Bank
(Tex. Civ.), 72 S. W. 1057, bankruptcy of one who has paid usurious
interest to national bank does not bar his right to recover same;
Herndon v. Davenport, 75 Tex. 464, 12 S. W. 1112, awarding recov-
ery of undisposed of lands to bankrupt's heirs; Neyland v. Texas etc.
Lumber Co., 26 Tex. Civ. 421, 64 S. W. 698; Curdy v. Stafford, 88
Tex. 125, 30 S. W. 553, both applying rule and upholding assignee's
sale.
«7 Tex. 48^4, TEXAS ETO. BY. ▼. DUBBETT.
Conveyance of Bight of Way, with use of wood, etc., to railroad,
can only be made by deed or grant.
Approved in Parsons v. Hunt, 98 Tex. 426, 84 S. W. 646, permis-
sion to use realty for ferry landing must be in writing; Toyaho
Creek Irrigation Co. v. Hutchins, 21 Tex. Civ. 280, 52 S. W. 104,
applying rule to right of way aecured by canal company.
Distinguished in Shepard v. Galveston etc. By., 2 Tex, Civ. 538,
22 S. W. 268, railroad may prove verbal grant of right of way to
show adverse holding.
Husband has No Power to Oonvey Bight of Way, with use of tim-
ber, etc., on wife's separate property.
Approved in Texas Trunk By. v. Hall (Tex. Civ.), 24 S. W. 325,
reaffirming rule; Dority v. Dority, 96 Tex. 222, 71 S. W. 953, 60 L.
B. A. 941, husband cannot lease wife's separate realty for more
than year; G. C. etc. By. v. Donohoo, 59 Tex. 131, applying rule and
holding railroad liable for constructing road on wife's property; Bal-
lard V. Carmichael, 83 Tex. 362, 18 S. W. 736, upholding wife's parol
sale of personalty. «*v i. ^
Distinguished in Bandall v. Texas Cent. By., 63 Tex. 589, huabana
alone may grant right of way to railroad over homestead.
57 Tex. 54-«7 NOTES ON TEXAS REPORTS. 1096
Damage Against Ballroad for Inconvenience in dividing land may
be proved under general allegation of damages.
Approved in Texas etc. Ry. v. Kane, 2 Tex. Ap. Civ. 27, awarding
damages for injury by defective hand-car; S. A. & A. Ry. v. Gwynn,
4 Tex. Ap. Civ. 342, 15 S. W. 510, awarding damages against rail-
way for overflowing lands. See note, 85 Am. St. Rep. 307.
Evidence of Understanding at Time of Purcbase that land was to
be wife's separate property is admissible.
Cited in Drake v. Davidson, 28 Tex. Civ. 187, 66 S. W. 890, apply-
ing rule to property conveyed to wife in exchange for her interest
in homestead. See note, 86 Am. Dec. 640.
57 TeiZ. 54-65, HAU.MAN V. CAMPBELK
District Clerks shall not be Allowed fees not expressly provided
by statute.
Approved in Williams v. Ford (Tex. Civ.), 27 S. W. 724, one pay-
ing the fees of an officer of a court is not subrogated to any right
in such fees.
57 Tex. 5e-59, OHILDBESS ▼. GRIM.
Decision of Judge Holding Himself Disqoalifled is discretionary,
and is not revised in absence of manifest error.
Approved in Lewis v. Terrell, 7 Tex. Civ. 317, 26 S. W. 755, re-
jecting evidence of disability not pleaded. See note, 84 Am. Dee.
128.
Plaintiff Should Allege Oircumstances which would take his case
out of the operation of the statute of limitation.
Approved in Bateman v. Jackson (Tex. Civ.), 45 S. W. 225, re-
affirming rule; Gleen v. Ashcroft, 2 Posey, 448, not error to refuse
testimony as to minority of party to defeat limitations where minor-
ity not pleaded. *
Where One Procures Property to be conveyed to his wife, it is
presumed he intended to make it her separate property.
See note, 69 L. R. A. 368.
67 Tex. 59-62, THOBCAS V. POBTEB.
One Occupying Land With Son, leaving rest of family on rented
place, is presumed to have taken it for his home.
Approved in Singleton v. Wright (Tex. Civ.), 54 S. W. 251, one
is an acutal settler on public land, though he be absent for six
months, and has leased out the land located by himself.
Distinguished in Busk v. Lowrie, 86 Tex. 131, 23 S. W. 984, hold-
ing party working on land half a day not an actual settler under
homestead law.
57 Tez. 62-67, BOBEBTSON ▼. JOHNSON.
Order of Sale by Guardian is not invalidated by failure to de-
scribe property.
Approved in Bowles v. Beal, 60 Tex. 325, holding deed describin}^
land as an undivided one-third of one-sixth sufficient; Knowlton v.
Dolan, 151 Ind. 86, 51 N. E. 100, upholding court commissioner's
sale, although property misdescribed; Hubcrmann v. Evans, 46 Neb.
799, 65 K. W. 1050, upholding guardian's sale where property was
inaccurately described in petition.
1097 NOTES ON TEXAS REPORTS. 57 Tex. 67-72
Purchaser at Guardian's Sale is not affected by failure of guard-
ian to petition for the sale.
Approved in Kendrick ▼. Wheeler, 85 Tex. 252, 20 S. W. 46, apply-
ing rule; Gains v. Barr, 60 Tex. 679, upholding probate sale, although
petition was not accompanied by statement of claims; Delk ▼.
Punchard, 64 Tex. 364, holding administrator's bond with only one
surety valid; Saul v. Frame, 3 Tex. Civ. 604, 22 S. W. 987, uphold-
ing administrator's sale, although application therefor doe's not
appear; Driggs v. Grantham (Tex. Civ.), 41 S. W. 411, no error to
admit in evidence in an action in trespass to try title order of sale,
confirmation, and deed in guardian's sale, where the objection is that
the land was sold for a purpose not specified by law; Walker v.
Goldsmith, 14 Or. 145, 12 Pac. 555, upholding guardian's sale, al-
though petition was irregular.
ConYeyaiice by Guardian is prima facie evidence that the law
has been complied with only when sale is confirmed by court.
Approved in Butler v. Stephens,' 77 Tex. 603, 14 S. W. 203, hold-
ing confirmation conclusive where record does not show lack of
jurisdiction; Edwards v. Gill, 5 Tex. Civ. 206, 23 S. W. 743, uphold-
ing administrator's sale, notwithstanding delayed confirmation;
Fitzwilliams v. Davie, 18 Tex. Civ. 85, 43 S. W. 842, upholding pro-
bate sale, although notice improperly described property.
Confirmation of Guardian's Sale by court is necessary, but it may
be inferred from circumstances.
Approved in Greer v. Ford, 31 Tex. Civ. 392, 72 S. W. 75, approval
of guardian's annual report sufficient confirmation of sale; Pendle-
ton V. Shaw, 18 Tex. Civ. 456, 44 S. W. 1010, holding approval of
administrator's report sufficient confirmation of sale.
57 Tex. 67-69, COOK ▼. UNDSAY.
Purported Power of Attorney Putting land irrevocably beyond
control of owner is construed as contract to convey.
Approved in Davidson v. Senior, 3 Tex. Civ. 550, 23 8. W. 25,
holding absolute power of attorney to sell land certificate was a
sale.
Contract by Oolonist to Sell Land before issuance of title is in-
valid.
Approved in Brown v. Simpson, 67 Tex. 228, 229, 2 S. W. 645,
applying rule.
57 Tex. 70-72, DBEISS ▼. FBIEDBICH.
In Suit for Actual Damages, testimony by plaintiff that he has to
support his family is inadmissible as showing his worldly condition.
Approved in Louisville etc. B. B. Co. v. Collinsworth, 45 Fla. 405,
33 So. 514, evidence of size of plaintiff's family inadmissible; Day-
harsh V. Hannibal etc. By., 103 Mo. 578, 23 Am. St. Bep. 903, 15
S. W. 555, and Louisville etc. B. B. v. Binion, 107 Ala. 652, 18 So.
78, both rejecting testimony regarding family in action for personal
injuries. See note, 67 Am. Dec. 567.
Entire Stenographer's Report should not be put in statement of
facts.
Approved in East Line etc. By. t. Culberson, 68 Tex. 665, 5 S. W.
821, striking out such statement; Oriental etc. Co. v. Barclay, 93
Tex. 430, 55 S. W. 1112, holding error to strike out statement where
disregard of rules was not flagrant.
57 Tex. 72-89 NOTES ON TEXAS BEPORTS. 1098
57 Tez. 72-75, BENNETT ▼. & A. R. ETC. ASSOCIATION.
Surety on Secretary's Bonds is not disregarded by negligent failure
of officers to discover prior defalcations, no actual notice thereof
being shown.
Approved in Screwmen v. Smith, 70 Tex. 172, 7 S. W. 795, enforc-
ing liability on treasurer's bond; Page v. White Sewing Machine Co.,
12 Tex. Civ. 331, 34 S. W. 991, holding sureties liable on agent's bond
without notice of default.
67 Tex. 75-83, TEXAS ETC. BY. ▼. CHAPMAN.
Person Aware of His Approacli to Ballroad Crossing must use pre-
cautions of prudent man, but court cannot instruct jury as to exact
acts necessary.
Approved in Gulf etc. By. ▼. Anderson, 76 Tex. 251, 13 S. W. 198,
(Jalveston etc. By. v. Porfert, 72 Tex. 351, 10 S. W. 212, Texas etc.
By. V. Ihirrett (Tex. Civ.), 28 S. W. 466, both reaffirming rule; Gulf
etc. By. Co. v. Bryant, 30 Tex. Civ. 11, 66 S. W, 809, error to tell
jury that persons moving cars should have looked ahead to see if
anyone was endangered thereby; Texas etc. By. v. Wright, 62 Tex.
518, question of contributory negligence is for jury; Missouri etc.
By. V. Lee, 70 Tex. 501, 7 S. W. 859, refusing to define duties, neglect
of which amounts to negligence; Garteiser v. Galveston etc. By., 2
Tex. Civ. 235, 21 S. W. 633, instruction that blowing whistle releases
from duty of ringing bell is error; St. Loi\is etc. By. v. Taylor, 5
Tex. Civ. 672, 24 S. W. 977, holding instruction emphasizing particu-
lar acts of negligence error; Austin etc. By. v. McElmurray (Tex.
Civ.), 25 S. W. 324, company need only employ care of a prudent
person to avert danger at a railroad crossing; Dallas Traction By.
V. Hurley, 10 Tex. Civ. 249, 31 S. W. 75, question whether car-driver
kept watch required by charter is for jury; Gulf etc. By. v. Wagley,
15 Tex. Civ. 313, 40 S. W. 540, holding question of negligence for
jury; Terre Haute etc. B. B. v. Voelker, 129 111. 554, 22 N. E. 23,
affirming rule, and awarding damages for injuries. See note, 90 Am.
Dec. 783.
Accident Caused by Fright of Horses, due to proximity of train,
no signals being given, does not relieve railroad company.
Approved in Missouri etc. By. v. Thomas (Tex. Civ.), 28 S. W.
141, following rule; Gulf etc. By. v. Box, 81 Tex. 677, 17 S. W. 378,
awarding damages for engineer's negligent whistling and frighten-
ing horses; Missouri etc. By. v. Magee, 92 Tex. 620, 50 8. W. 1014,
awarding damages where no signals given at crossing; Missouri etc.
By. V. Cloninger (Tex. Civ.), 42 S. W. 636, holding company liable
where its agents turned off steam, which frightened plaintiff's team.
Where Error in Particular Paragraph is not positive misstatement
of law, it may be cured by correct statement elsewhere in charge.
Approved in International etc. B. Co. v. Von Hoesen, 99 Tex. 649,
92 S. W. 800, reaffirming rule.
57 Tex. 83-89, HOUSTON ETC. BY. v. LESLIE.
Injured Party may Becover for AH Proximate Damage, sueli as
disease, though of such a nature as does not ordinarily ensue.
Approved in Louisville etc. By. v. Miller, 141 Ind. 665, 37 N. E.
353, applying rule and admitting evidence of resulting disease;
Louisville etc. By. v. Snyder, 117 Ind. 436, 10 Am. St. Bep. 61, 20
N. E. 285, 3 L. B. A. 434, Ohio etc. B. B. v. Hecht, 115 Ind. 448,
1099 NOTES ON TEXAS HEPOETS. 57 Tex. 89-96
17 N. E. 300, both admitting evidence of Bright's disease as element
of damages. See notes, 10 Am. St. Bep. 65; 17 L. B. A. 71; 16
L. B. A. 269.
Person Helping Passengen on Train cannot recover for injuries
received in jumping off, though train did not stop statutory time at
station.
Approved in Oxsher v. Houston etc. By. Co., 29 Tex. Civ. 422, 424,
67 S. W. 552, Gulf etc. By. v. Buford, 2 Tex. Civ. 118, 21 8. W.
273, Dillingham v. Pierce (Tex. Civ.), 31 8. W. 207, all reaffirming
rule; St. Louis etc. By. Co. v. Highnote, 99 Tex. 27, 86 S. W. 924,
holding negligent one jumping off train while in motion, on promise
of conductor to slacken speed; Texas Midland B. B. v. Ellison, 39
Tex. Civ. 176, 87 S. W. 215, holding passenger negligent who boarded
moving train, knowing it to be dangerous; I. & G. N. B. B. v.
Gorman, 2 Tex. Ap. Civ. 680, refusing recovery for injury received •
by attempting to board moving train; Texaa etc. By. v. Carr (Tex.
Civ.), 42 S. W. 126, plaintiff cannot recover where he fails to use
ordinary care and is injured. See notes, 44 Am. Bep. 508; 21 L. B. A.
354.
57 Tez. 89-91, DEUT8CH ▼. ALLEN.
Judgment Lien is Lost by Failure to Issue execution more than
one year after preceding execution in absence of excuse.
Approved in Harvey v. Edens, 69 Tex. 433, 6 S. W. 313, reaffirming
rule; Johnson v. Weatherford, 31 Tex. Civ. 182, 71 S. W. 790, in-
solvency of debtor does not justify failure to issue executions.
57 Tez. 91-96, OSBOBN ▼. KOENIGHEIM.
Pledgee of Property cannot Avail Himself of remedy to try right
thereto, on attachment in statutory mode by creditor of pledgor not
disturbing possession.
Approved in Ghio v. Byrne, 59 Ark. 295, 27 S. W. 247, Erwin v.
Blanks, 60 Tex. 588, both holding mortgagee out of possession cannot
assert lien against purchaser at sheriff's sale in trial of right of
property; Durham v. Flannagan, 2 Tex. Ap. Civ. 29, maintaining trial
of right of property by pledgee where property was attached.
Pledgee of Property is Entitled to Possession against attaching
creditor of pledgor till debt is satisfied.
Approved in Groesbeck v. Evans, 40 Tex. Civ. 217, 83 S. W. 431,
landlord having lien on crop entitled to same against attaching
creditor of tenant; White v. Jacobs, 66 Tex. 464, 1 S. W. 345, party
entitled to possession of personalty ' can claim it after attachment
as property of another; Schmick v. Bateman, 77 Tex. 330, 14 S. W.
22, surety holding property as security can claim it against attach-
ing creditor; Sanger Bros. et«. Co. v. Henderson, 1 Tex. Civ. 416,
21 S. W. 116, pledgee may maintain an action against a trespasser;
Merchants' Nat. Bk. v. Barker, 8 Tex. Civ, 334, 28 S. W. 698, Cabell
V. Johnston, 13 Tex. Civ. 473, 35 S. W. 946, and Willis v. Thompson,
85 Tex. 308, 20 S. W. 157, all holding trustee for benefit of creditors
may claim goods against attaching creditor; Linz v. Atchinson, 14
Tex. Civ. 654, 38 S. W. 641, mortgagee entitled to possession of per-
sonalty can claim it against attaching creditor; Willie v. Bank of
Daingerfield (Tex. Civ.), 30 S. W. 83, bank furnishing cotton' dealer
funds to carry on the business under contract that cotton purchaaer
57 Tex. 96-117 NOTES ON TEXAS BEPOBTS. 1100
shall be subject to bank's control until it is reimbursed gives bank
action against third persons converting the cotton.
Symbolical Delivery is Evidenced by transfer of warehouse receipt.
Approved in National Bank v. Citizens' Nat. Bank, 41 Tex. Civ.
538, 93 S. W. 210, applying rule to compress receipts.
57 T^z. 96-97, THUBBEB v. CONNEBS.
Estate in Lands Less Tban Fee Simple will sustain action of tres-
pass to try title.
Approved in Stokes v. Biley, 29 Tex. Civ. 375, 68 S. W. 704, plain-
tiff under allegation of fee simple may prove leasehold intereyst;
Skaggs V. Deskin (Tex. Civ.), 66 S. W. 795, life tenant may bring
suit to try title and for possession; New York etc. Land Co. v.
Hyland, 8 Tex. Civ. 614, 28 8. W. 211, equitable title will support
trespass to try title.
Landlord Having an Action of Forcible Enlary may maintain tres-
pass to try title in district court, though less than five hundred dollars
is claimed.
Approved in McDannell v. Cherry, 64 Tex. 179, sufficient complaint
for forcible detainer will support other form of action to recover
property; Lamb v. Temperance Hall Co., 2 Tex. Civ. 291, 21 S. W.
713, Juneman v. Franklin, 67 Tex. 414, 3 S. W. 564, both holding
landlord may recover property and rent in trespass to try title.
57 Tez. 98-105, HIKES V. THOBN.
Act of 1856 for Hines vested perfect title to bis invalid claim in
himself or his assigns.
Approved in Balston v. Skerrett, 82 Tex. 489, 17 S. W. 845, hold-
ing act of 1883 validating land grants inured to benefit of vendees
from grantees; Ansaldua v. Schwing, 81 Tex. 201, 16 S. W. 990, 13
L. B. A. 50, Abernathy v. Stone, 81 Tex. 434, 16 S. W. 1103, Jones
V. Lee, 86 Tex, 37, 22 S. W. 392, Santana Livestock etc. Co. v.
Pendleton, 81 Fed. 790, Bobertson v. Du Bose, 76 Tex. 8, 13 S. W.
302, all holding sale of land includes certificate under which it was
located; Balston v. Skerrett (Tex. Sup.), 17 S. W. 239, under General
Laws of 1883, page 38, the heirs of a soldier took title to land issued
under it, unaffected by any act of their ancestor.
Title to Land Certificate vests in the assignee of the certificate.
Approved in Franco-Texan Land Co. v. McCormick (Tex. Civ.),
23 S. W. 121, reaffirming rule.
Certified Copy of Deed recorded in general land office is admissible
on proof of loss of original.
Approved in Houston v. Blythe, 60 Tex. 514, admitting translation
of record made by land office translator; Clayton v. Bhem, 67 Tex.
53, 2 S. W, 46, rejecting parol evidence of indorsement of tax-roll
where certified copy could be obtained; Alexander v. Houghton (Tex.
Civ.), 26 S. W. 1103, an instrument is admissible as a recorded in-
strument where the notary affixes his seal and it is recorded, though
it fails to show the notary's attest.
57 Tez. 105-117, BBOOKE ▼. CLABKE.
Action Against Physician for malpractice does not abate by his
death pending his appeal.
Approved in Putnam v. Capps, 6 Tex. Civ. 611, 25 S. W. 1024,
upholding verbal assignment of judgment pending appeal; Pullman
1101 NOTES ON TEXAS BBPOETS. 57 Tex. 117-123
Palace Car Co. v. Fowler, 6 Tex. Civ. 759, 27 8. W. 269, holding
judgment for damages does not abate by death of party pending
appeal.
Party cannot Object to Suit by infant by his next friend, for the
first time on appeal.
Approved in Tanner v. Ames (Tex. Civ.), 37 8. W. 374, following
rule; Evansich v. G. C. etc. By., 57 Tex. 127, 44 Am. Eep. 587, father
may sue as next friend to minor son; Wygal v. Myers, 76 Tex. 603,
13 S. W. 568, upholding judgment for minor represented by next
friend; Texas etc. By. v. Stuart, 1 Tex. Civ. 648, 20 8. W. 965, ap-
plying rule in rendering judgment for minor represented by next
friend; Carlton v. Miller, 2 Tex. Civ. 622, 21 S. W. 698, maintaining
writ of error by next friend to vacate default judgment against
minors; Hawkins v. Forrest, 1 Posey U. C. 173, holding judgment
against unrepresented nunors void; Smith v. Bedden, 1 Posey U. C.
365, reversing judgment against minors not represented by guardian;
G. C. etc. By. v. Styron, 2 Posey U. C. 276, 278, holding father can-
not sue in his own name for injury to minor child; In re Cahill, 74
Cal. 58, 15 Pae. 368, upholding verdict for minor, although no guard-
ian appointed until trial.
Submission of Exemplary Damages to Jury is not considered in
absence of objection below, and verdict ia not excessive as actual
damage.
Approved in Heiligmann v. Bose, 81 Tex. 224, 26 Am. St. Bep.
806, 16 S. W. 931, 13 L. B. A. 272, upholding judgment, although
actual and exemplary damages were not found separately. See note,
93 Am. St. Bep. 658.
Where Actual Damages include mental suffering through life, ver-
dict is rarely set aside as excessive.
Approved in dissenting opinion in Chicago ete. By. y. Langston,
19 Tex. Civ. 583, 47 8. W. 1036, majority awarding damages for per-
sonal injuries on railroad.
Physician may be liable for exemplary damages if he shows such
want of care as shows probable consciousness of probable conse-
quences of carelessness.
See note, 37 L. B. A. 833.
57 Tez. 117-119, NEWMAN ▼. DOTSON.
Trustee Under Will for minority of daughter is discharged by her
marriage.
Approved in Woodward v. Woodward, 28 W. Va, 209, when pur-
poses of trust are satisfied, trustee's estate ceases.
57 Tez. 119-123, BLUM ▼. GAINES.
Homestead, Once Acquired, is exempt in hands of husband, though
wife and family are dead.
Approved in Schneider v. Bray, 59 Tex. 670, Leland v. Chamberlin,
(Tex. Civ.), 60 8. W. 436, Allen v. Ashburn, 27 Tex. Civ. 242, 65
S. W. 47, Stanley v. Snyder, 43 Ark. 433, Weaver v. First Nat. Bank,
76 Kan. 547, 551, 123 Am. St. Bep. 155, 94 Pac. 275, 277, 16 L. B.
A. (n. s.) 110, and Boberts v. Oreer, 22 Nev. 328, 533, 58 Am. St.
Bep. 757, 761, 40 Pac. 7, 8, all following rule; Stone v. McClellan,
36 Tex. Civ. 366, 81 8. W. 753, where community property home-
stead awarded divorced wife, who remarried, on her death exemp-
tion revived in favor of first husband; Zapp v. Strohmeyer, 75 Tex.
57 Tex. 123-129 NOTES ON TEXAS REPOBTS. 1102
639y 13 S. W. 10, holding divorced husband entitled to homestead;
Childers v. Henderson, 76 Tex. 667, 13 S. W. 482, holding homestead
descending to children exempt; Beed v. Talley, l3 Tex. Civ. 290,
35 S. W. 807, one spouse cannot, by will, deprive survivor of home-
stead; Evans v. Pace, 21 Tex. Civ. 370, 51 S. W. 1095, holding surviv-
ing wife entitled to exemption of business homestead. See notes,
16 L. B. A. (n. s.) Ill; 4 L. B. A. (n. s.) 390, 395.
Distinguished in Bahn v. Stareke, 89 Tex. 208, 59 Am. St. Bep. 45,
34 S. W. 106, holding former homestead decreed to divorced wife
for life, subject to execution.
67 T«z. 123-126, EVANSIOH ▼. GALVESTOK ETC. A. B.
Railroad Company la Liable for Injury to Child on unguarded turn-
table on its own premises.
Approved in Texas etc. By. v. Brown, 11 Tex. Civ. 506, 33 8. W.
147, awarding damages for negligent injury to child playing on cars;
Pekin v. McMahon, 154 HI. 149, 154, 45 Am. St. Bep. 118, 122, 39
N. E. 486, 487, 26 L. B. A. 206, awarding recovery for drowning of
eight year old child in pond on exposed property; dissenting opinion
in Byan v. Towar, 128 Mich. 484, 92 Am. St. Bep. 481, 87 N. W. 851,
55 L. B. A. 310, majority denying recovery to child injured by water-
wheel in pump-house on premises crossed by children. See note, 14 L.
B. A. 783.
Distinguished in Williams v. T. k P. B. B., 60 Tex. 207, refusing
recovery for child's death to parents negligently allowing it to play
at depot; Cook v. Houston Direct Navigation Co., 76 Tex. 357, 18 Am.
St. Bep. 55, 13 S. W. 476, refusing recovery for death of child negli-
gently allowed by parents to go in tugboat; Douglas v. Central
Texas etc. By. (Tex. Civ.), 26 S. AV. 893, company's agents should
keep a reasonable lookout in handling an engine and cars at any
place where there is likelihood of danger; Missouri etc. By. v. Ed-
wards, 90 Tex. 70, 36 S. W. 432, 32 L. B. A. 825, refusing recovery
for injury to child playing on lumber piles; Krenzer v. Pittsburg
etc. B. B., 151 Ind. 600, 52 N. E. 222, refusing recovery for injury
to child falling asleep on railroad track.
Disapproved in Daniels v. New York etc. B. B., 154 Mass. 351,
26 Am. St. Bep. 255, 28 N. E. 284, 13 L. B. A. 248, holding railroad
not liable for injury to child playing on unlocked turntable.
Parent may Becoyer for Loss of Service of Child and medical ex-
pense, in addition to suit in behalf of child for the injury.
Approved in Missouri etc. By. v. Dobbins (Tex. Civ.), 40 S. W. 863^
reaffirming rule; Frazier v. Georgia B. B., 101 Ga. 75, 28 S. E. 685,
awarding damages to father for negligent killing of minor son.
67 Tex. 126-129, 44 Am. Bep. 686, EVAKSICH ▼. GALVESTON ETC.
BY.
Father may Maintain Action as next friend for his minor son.
Distinguished in G. C. etc. By. v. Styron, 2 Posey U. C. 276, father
cannot sue in his own name for injury to minor child.
Bules, ae to What Constitutes contributory negligence in adults,
are not applied to child of tender years.
Approved in Missouri etc. By. v. Edwards (Tex. Civ.), 32 S. W.
816, San Antonio Water Works Co. v. White (Tex. Civ.), 44 S. W.
182, both following rule; St. Louis etc. By. Co. v. Bolton, 36 Tex.
Civ. 89, 81 8. W. 124, child eleven years old not guilty of contribu-
1103 NOTES ON TEXAS BEPOETS. 57 Tex. 129-135
toTj negligence in failing to jump from trestle on approach of train)
Houston etc. R. Co. v. Bulger, 35 Tex. Civ. 483, 80 S. W. 560, rail-
road negligent in permitting dull boy of thirteen to enter pumping
station; San Antonio Traction Co. v. Court, 31 Tex. Civ. 147, 71 S. W.
778, motorman seeing child approach track cannot presume that he
will not place himself in danger; St. Louis etc. By. v. Christian, 8
Tex. Civ. 249, 27 S. V9. 933, applying rule in action for death of child
on trestle; Thompson v. Missouri etc. Rj., 11 Tex. Civ. 308, 32 S. W.
191, awarding damages for negligent injury of child jumping on
moving train; Brinkley Car Co. v. Cooper, 60 Ark. 549, 46 Am. St.
Bep. 217, 31 S. W. 155, applying rule in action for injury to child
falling into hot pool on defendant's premises; Indianapolis etc. By.
V. Pitzer, 109 Ind. 183, 58 Am. Bep. 389, 6 N. E. 312, holding rail-
road liable for negligent killing of child on track; Powers v. Harlow,
53 Mich. 515, 51 Am. Bep. 160, see 19 N. W. 260, awarding recovery
for injury to child playing with powder negligently left exposed.
See notes, 55 Am. Dec. 676, 677; 40 Am. B«p. 66&; 14 Am. St. Bep.
595.
Distinguished in Savannah etc. By. Co. v. Beavers, 113 Ga. 412,
39 S. E. 88, 54 L. B. A. 314, one making excavation on his own lanil
is not bound to guard it to protect children coming on land without
invitation; Wheeling B. B. Co. v. Harvey, 77 Ohio, 244, 122 Am. St.
Bep. 503, 83 N. E. 69, 19 L. B. A. (n. s.) 1136, railroad not liable
for injury to trespassing child from turntable nor waterworks for
child drowned in reservoir; IJthermohlen v. Hogg's Bun Co., 50 W.
Va. 468, 88 Am. St. Bep. 884, 40 S. £. 415, 55 L. B. A. 911, refusing
recovery to trespassing child for injuries received from rope and
pulleys; Williams v. T. & P. B. B., 60 Tex. 207, refusing recovery
for death of child negligently allowed by parent to play at depot;
Cook V. Hoilston etc. Navigation Co., 76 Tex. 357, 18 Am. St. Bep.
55, 13 S. W. 476, refusing recovery for death of child negligently
allowed by parents to go on tugboat.
QueBtion of DiBcretion of Young Ohild is for jury, though facts are
undisputed.
Approved in St. Louis etc. By. ▼. Shifflet (Tex. Civ.), 56 8. W.
698, following rule; Avey v. Galveston etc. By., 81 Tex. 245, 26 Am.
St. Bep. 810, 16 S. W. 1016, applying rule in action for injury to
child jumping from moving train; Missouri etc. By. v. Bodgers, 89
Tex. 680, 36 8. W. 245, applying rule in action for injury to boy
riding on hand-car; Texas etc. By. v. Mother, 5 Tex. Civ. 94, 24
S. W. 82, applying rule in action for injury to trespasser by jumping
from train; St. Louis etc. By. v. Christian, 8 Tex. Civ. 248, 27 S. W.
933, applying rule in action for death of child on trestle; Western
Union Tel. Co. v. Hoffman, 80 Tex. 424, 26 Am. St. Bep. 761, 15 8. W.
1047, awarding recovery to minor for failure to deliver telegram
summoning doctor.
Child can Becoyer though the turntable upon which it was injured
WAS in the defendant's property.
Approved in San Antonio etc. By. v. Morgan (Tex. Civ.), 45 S.
W. 171, and Chicago etc. B. Co. v. Fox, 38 Ind. Ap. 279, 70 N. E.
85, both reaffirming rule. See note, 4 L. B. A. (n. s.) 81.
67 Tex. 129-135, TEXAS ETC. R. B. ▼. WHITE.
On DiBsolntion of Injunction, judgment cannot be rendered on
bonds for full amount of enjoined judgment, unless under proper al-
57 Tex. 135-142 NOTES ON TEXAS REPORTS. 1104
legations and proof, but liability is limited to ten per cent damages
for delay.
Approved in Givens v. Delprat, 28 Tex. Civ. 364, 67 S. W. 425,
reaffirming rule; Warren v. Foust, 36 Tex. Civ. 61, 81 8. W. 324,
reversing judgment for debt, costs and ten per cent damages in ab-
sence of proper pleadings and proof; Fernandez v. Casey, 77 Tex.
455, 14 8. W. 150, Johnson v. Moore, 2 Tex. Ap. Civ. 165, Stone Cat-
tle Co. V. Davis, 3 Tex. Ap. Civ. 190, Bailey v. Boydstun (Tex. Civ.),
33 S. W. 284, and Avery v. Stewart, 60 Tex. 154, all holding on
dissolution of injunction judgment cannot be rendered against par-
ties on bond; Robertson v. Schneider, 1 Tex. Civ. 409, 20 8. W. 1129,
answer not alleging damage will not support judgment on injunction
bond, on dissolution; Appleton v. Draughn, 11 Tex. Civ. 90, 32 S.
W. 47, holding erroneous judgment on injunction bond at dissolu-
tion does not estop enforcement of liability on subsequent bond;
Avery v. Stewart, 60 Tex. 155, applying rule and refusing to render
judgment against parties on bond, on dissolution; Bridges v. Wil-
son, 2 Tex. Ap. Civ. 550, awarding recovery on bond for damages
pleaded in reconvention.
Sureties on Injunction Bond become parties to suit, and are sub-
ject to jurisdiction of court.
Approved in Sharp v. Schmidt, 62 Tex. 265, holding sureties on
injunction bond become parties to suit without service; Seinsheimer
V. Flanagan, 17 Tex. Civ. 432, 44 S. W. 32, rendering judgment
against parties on replevy bond without notice to them.
Miscellaneous. — Miscited in Avery v. Galveston etc. By., 81 Tex.
245, 26 Am. St. Rep. 810, 16 8. W. 1016 (apparently intended for
preceding case).
57 Tax. 136-142, BLUM ▼. aAINlMi.
In Suit for Iievylng Sequestration, evidence of seizure and sale
of personal property is not admissible to show malice.
Distinguished in Willis v. McNeill, 57 Tex. 473, admitting evi-
dence of first attachment in action for procuring another.
Voluntary DismisBal of Suit, and failure to return property is ad-
missible in determining whether sequestration was sued out for im-
proper purpose.
Approved in Finegan v. Read, 8 Tex. Civ. 35, 27 S. W. 262, award-
ing recovery on sequestration bond given in trespass to try title
subsequently dismissed.
Exemplary Damages are Recoverable for maliciously suing out
writ of sequestration.
Approved in Jacobs r. Crum, 62 Tex. 407, holding exemplary
damages recoverable for malicious attachment; McArthur v. Barnes,
10 Tex. Civ. 320, 21 8. W. 213, holdin^r sequestration sureties not
liable for exemplary damages for malice of principal.
Damages for Wrongful Taking of Property are not limited to
rental value while held.
Approved in Wilkinson v. Stanley (Tex. Civ.), 43 8. W. 608, fol-
lowing rule; Vance v. Lindsey, 60 Tex. 291, holding costs of defend-
ing suit for land not recoverable as damages; Hunter v. Penland
(Tex. Civ.), 32 S. W. 423, a note given to release a wrongful attach-
ment of goods is an element of damages.
Error to Permit Sheriff to Testify as to harsh instructions received
from creditor, in absence of proof that harsh instructions were given.
1105 NOTES ON TEXAS EEPORTS. 57 Tex. 142-159
Approved in Lyons v. Texas etc. By. Co. (Tex. Civ.), 36 S. W.
1007, brakeman'9 statement that he acted under conductor's order*
is inadmissible.
bl Tez. 142-152, aBiaSBY ▼. PEAK.
Ordinance Appended to Constitatlon suspending statute of lim-
itation during certain period is valid.
Approved in Quinlan v. Houston etc. By., 89 Tex. 377, 34 S. W.
744, holding ordinance of 1886 constitutional convention valid.
Distinguished in Ex parte Birmingham etc. By. Co., 145 Ala. 531,
42 So. 124, holding void ordinance of constitutional convention not
ratified by people.
Statnte of Limitation Pertains to Bemedy and not to right, and no
one has vested rights in any particular remedy.
Approved in Goldfrank v. Young, 64 Tex. 435; holding mortgage
cannot be foreclosed after debt is barred.
Married Woman Oonld not Tack disability of coverture to infancy
under constitution of 1869.
Approved in Douglass v. Moore, 2 Posey U. G. 263, three years'
limitation is not applicable to unauthorized grant of community
property by surviving husband. See note, 111 Am. St. Bep. 460.
If Time of Adverse Possession has Bun, it cannot be extended by
state constitution.
Approved in Peak v. Swindle, 68 Tex. 246, 252, 4 S. W. 478, 482,
reaffirming rule; Lerma v. Stevenson, 40 Fed. 359, admitting old
Mexican grant to prove title although prohibited by constitution.
Distinguished in Landa v. Obert, 78 Tex. 46, 14 S. W. 300, holding
money obligation, already barred, renewed by constitution of 1869.
The Statute of Limitations was suspended in Texas from January
28, 1861, to March 30, 1870.
Beaffirmed in Houston etc. By. v. State (Tex. Civ.), 39 S. W.
403; Collier v. Couts (Tex. Civ.;, 45 8. W. 486, 487. See note, 45
L. B. A. 610.
Miscellaneous. — Cole v. Grigsby (Tex. Civ.), 35 S. W. 688, cited
as having been an adjudication upon certain issue of fact regarding
the bar of limitations; Grigsby v. May, 84 Tex. 245, 19 S. W. 343,
referred to as having been previous litigation involving question
of part of the same Grigsby league and labor.
57 Tex. 152-156, HOUSTON ETC. BY. ▼. BOEHM.
Party Injured by Negligence may recover not only for suffering
and loss of time, but for future increased disability.
Approved in Gulf etc. By. v. Pierce, 7 Tex. Civ. 601, 25 S. W. 1053,
following rule; Northern Texas Traction Co. v. Yates, 39 Tex. Civ.
118, 88 S. W. 284, permitting recovery for impairment of nervous
system and memory, in addition to physical and mental suffering
and loss of earning power; Texas etc. By. v. Kane, 2 Tex. A p. Civ.
27, holding actual proximate damages provable without special plea.
Distinguished in Gulf etc. By. v. Gordon, 70 Tex. 89, 7 S. W.
700, refusing charge on future earning capacity as element of dam-
ages, where no evidence thereon.
57 Tex. 156-159, aAIiVESTON ETC. B. B. ▼. FBEEBiAN.
Eqnitable Owner of Ohose in Action may sue in his own name.
Approved in Texas etc. By. v. Levine (Tex. Civ.), 29 S. W. 514,
Cleveland v. Heidenheimer (Tex. Civ.), 44 S. W. 554, both reafiirm-
2 Tex. Notes^70
67 Tex. 159-171 NOTES ON TEXAS BEPORTS. 1106
Ing rule; Strickland v. Hardwick, 77 Tex. 196, 13 S. W. 973, main-
tainiog suit by subsequent vendee from debtor, to vacate sheriff's
sale; Best v. Baker, 3 Tex. Civ. 554, 22 8. W. 1069, upholding
assignability of right to purchase county school lands; Gulf etc. By.
V. Humphries, 4 Tex. Civ. 335, 23 S. W. 5Y7, owner of claim against
carrier for conversion of goods may sue; Winn v. Ft. Worth etc. By,,
12 Tex. Civ. 200, 23 S. W. 594, dismissing suit by shipper against
railroad for refusal to receive freight after assignment of claim;
Atchison etc. B. B. v. Bryan (Tex. Civ.), 37 S. W. 235, company
cannot prevent recovery by alleging cattle were not shipped in the
name of the true owner.
Action Against Railroads for killing animals is assignable.
Approved in Gray v. Freeman, 37 Tex. Civ. 562, 84 S. W. 1108,
right to procure cancellation of deed of trust for fraud survives;
Texas etc. B. Co. v. Smith, 35 Tex. Civ. 354, 80 S. W. 248, right of
action for trespass on realty survives; Taylor v. Sturgis, 29 Tex.
Civ. 272, 68 S. W. 538, claim for return of usurious interest paid is
assignable; Lasater v. First Nat. Bank (Tex. Civ.), 72 8. W. 1056,
right to recover usurious interest paid survives and is assignable;
Putnam v. Capps, 6 Tex. Civ. 611, 25 S. W. 1024, holding verbal
assignment of judgment valid between parties; Gulf etc. By. v.
Miller, 21 Tex. Civ. 612, 53 S. W. 710, holding claim foir personal
injuries assignable under statute; Marshall v. McAllister, 22 Tex.
Civ. 215, 54 8. W. 1068, holding right of action for personal injuries
survives to heir; G. C. etc. By. v. Jones, 3 Tex. Ap. Civ. 34, main-
taining suit by assignee of claim against railroad for overflowing
lands.
Distinguished in Jones v. George, 61 Tex. 364, 48 Am. Bep. 296,
holding contract right can only be enforced by parties or privies;
North Chicago St. B. B. v. Ackley, 171 111. 107, 49 N. E. 224, 44
L. B. A. 177, Gulf etc. By. v. Wooten, 10 Tex. Civ. 58, 30 S. W. 685,
and Stewart v. H. & T. C. By., 62 Tex. 247, all holding unliquidated
claim for personal injuries not assignable; Texas etc. By. v. Sho wai-
ter, 3 Tex. Ap. Civ. 93, holding parents' claim against railroad for
death of minor child not assignable.
Mere Personal Torts die with party and are not assignable.
See note, 44 L. B. A. 178, 180, 187.
67 Tex. 169-163, CAMPBELL ▼. ALFOBD.
Goods being Delivered to Carrier for pledgee and bill of lading
sent to him without indorsement, he is prior in right to subsequent
pledgee without notice of first.
Approved in National Bank v. Citizens' Nat. Bank, 41 Tex. Civ.
638, 93 8. W. 210, and Willis v. Bank of Daingerfield (Tex. Civ.), 30
S. W. 83, both following rule; Missouri etc. By. v. Heidenheimer, 82
Tex. 199, 27 Am. St. Bep. 864, 17 8. W. 609, seller cannot stop goods
in transit without discharging pledgee's claim; Prendergast v.
Williamson, 6 Tex. Civ. 731, 26 S. W. 423, pledgee of bill has super-
ior right to persons lending money under oral agreement for lien
on goods. See note, 105 Am. St. Bep. 342.
67 Tez. 166-171, IKTEBNATIONAL ETC. K. B. ▼. 8TEWABT.
Entire Charge to Jury must be construed together.
Approved in Texas etc. By. v. McKenzie, 2 Posey TJ. C. 308, af-
firming charge requiring railroad to keep station safe and lighted.
1107 NOTES ON TEXAS EEPORTS. 57 Tex. 171-181
Facts not Disputed may be assumed as true in instructions to jury.
Approved in Northern Texas Traction Co. v. Yates, 39 Tex. Civ.
117, 88 S. W. 283, and Huff v. Crawford (Tex. Civ.), 32 S. W. 594,
both following rule; Gulf etc. Ry. v. Pierce, 7 Tex. Civ. 601, 25
8. W. 1053, Bonner v. Green, 6 »Tex. Civ. 100, 24 S. W. 837, both
holding fact testified to and uncontradicted may be assumed in in-
struction; Parrish v. Prey, 18 Tex. Civ. 278, 44 S. W. 326, appellate
court can render proper judgment when facts are not contradicted;
Western etc. Tel. Co. v. Burgess (Tex. Civ.), 60 S. W. 1025, holding
error to submit issue on fact established by uncontradicted evi-
dence; Galveston etc. By. v. Lynes (Tex. Civ.), 65 S. W. 1121, facts
admitted should be taken as established, and the court should pro-
ceed on that basis.
Befasal of Court to Accept Verdict cannot be reviewed without
bill of exceptions.
Approved in San Antonio etc. By. Co. v. Klaus, 34 Tex. Civ. 494,
79 S. W. 59, refusing to review overruling of motion to withdraw
ease from jury, in absence of bill of exceptions.
Damages not Disturbed as Excessive unless so disproportionate
to injury as to indicate passion or prejudice.
Approved in Dillingham v. Richards (Tex. CiV.), 27 S. W. 1062,
reaffirming rule; Texas etc. Ry. v. Cornelius, 10 Tex. Civ. 129, 30
8. W. 722, holding railroad liable for failure to heat depot under
statute; Ross v. Texas etc. Ry., 44 Fed. 49, upholding verdict of
two thousand five hundred dollars for killing five year old child.
57 Tex. 171-175, WOLF ▼. MAHAN.
Evidence is not Oumulatlve because former evidence indirectly
tended to establish the same fact.
Approved in Hilburn v. Harris, 2 Tex. Civ. 399, 21 S. W. 574,
Texas etc. Ry. v. Barron, 78 Tex. 426, 14 S. W. 699, both granting
new trial for newly discovered evidence not cumulative; East Line
etc. R. V. Boon (Tex. Sup.), 1 S. W. 633, motion for new trial will
not be granted to admit cumulative testimony; Gulf etc. Ry. v.
Reagan (Tex. Civ.), 34 S. W. 798, facts relied on to obtain a new
trial must be conclusive; Collins v. Weiss, 32 Tex. Civ. 285, 74 S. W.
48, denying new trial to receive cumulative evidence; dissenting
opinion in Gulf etc. Ry. Co. v. Blanchard (Tex. Civ,), 73 S. W. 95,
majority holding sufficient diligence not shown in seeking newly
discovered testimony.
57 Tex. 176-181, BOUNDTBEE v. aiLBOY.
When Term Lasts Longer than jurors are selected for, new jurors
should be selected by old commission, but new commission is at most
an irregularity.
Approved in Western Union Tel. Co. v. Everheart, 10 Tex. Civ.
473, 32 S. W. 92, court can cause jurors to be summoned by sheriff
when needed, under statute; Lang v. Henke, 22 Tex. Civ. 491, 55 S.
W. 375, upholding validity of jurors supplied by appointed com-
missioners; International etc. Ry. v. Foster, 26 Tex. Civ. 488, 64 S.
W. 953, upholding validity of panel summoned by sheriff when no
regular jury present.
A Challenge to the Array can only be made on statutory grounds.
Approved in Gulf etc. Ry. v. Gilvin (Tex. Civ.), 55 S. W. 985, ob-
jection that each juror was not summoned by the sheriff is not a
challenge to the array.
57 Tex. 181-200 (NOTES ON TEXAS REPOBTS. 1108
8ut78eqaent Parol Agreemeat is no defense to writing, unless exe-
cuted.
Approved in Bailey v. Bockwall County etc. Bank (Tex. Civ.), 61
8. W. 531, rejecting proof of parol agreement to credit debt on
note. f'^
Where Writing Galls for Money, parol agreement that part of it
may be discharged otherwise than in money cannot be shown.
See notes, 6 L. R. A. 36; 3 L. B. A. ?'^^.
bl Tex. 181-184, DWTEB ▼. OONTINENTAI. INS. CO.
Burden of Proof of Fraudulent Burning is on insurance company.
' Approved in Sullivan v. Hartford Fire Ins. Co. (Tex. Civ.), 34 S.
W. 1001, following rule; Alamo Fire Ins. Co. v. Lancaster, 7 Tex-
Civ. 680, 28 S. W. 127, insurer alleging arson must prove it; Alle-
mania Ins. Co. v. Fred, 11 Tex. Civ. 315, 32 S. W. 245, defendant
alleging breach of stipulation in policy has burden of proof; Phoenix
Assurance Co. v. Coffman, 10 Tex. Civ. 633, 32 S. W. 811, plaintiff
need not negative failure to comply with all stipulations of policy.
67 Tez. 185-194, STATE ▼. MIDDUSTON.
Collections of Ofllcer of one term cannot be applied to defaults
of prior term, sureties being different.
Approved in United States v. Morgan, 28 Fed. 51, and Newcomer
V. State, 77 Tex. 287, 13 S. W. 1040, both holding sureties at time of
defalcation are liable although subsequent collections are used to
cover it.
67 Tez. 196, QBEENWABB ▼. SMITH.
On Appeal by Intervener, bond should be made payable to all par-
ties of original suit.
Approved in First Nat. Bank v. Preston Nat. Bank, 3 Tex. Civ.
546, 22 S. W. 1048, Sydec v. Duran, 2 Posey U. C. 305, and Young
V. Russell, 60 Tex. 686, dismissing appeal when bond was not pay-
able to all adverse parties; Cockrill v. Eason (Tex. Civ.), 26 S. W.
465, an appeal bond by two defendants should run in favor of a
third defendant when the judgments recovered against them are to
be credited on his judgment; McAllister v. Godbold (Tex. Civ.), 29
S. W. 417, and Hay den v. Mitchell (Tex. Civ.), 24 S. W. 1086, ap-
peal dismissed where appeal bond was not made payable to inter-
veners whose claims were adverse to appellants; Packenius v. Petri
(Tex. Civ.), 29 S. W. 1096, Friedman v. Dockery (Tex. Civ.), 34 S.
W. 768, and Terry v. Cutler (Tex. Civ.), 21 S. W. 726, appellate court
will dismiss appeal unless all necessary parties to a judgment adverse
to appellant are made payees of the appeal bond.
Distinguished in Futch v. Palmer, 11 Tex. Civ. 193, 32 S. W. 566,
maintaining appeal on bond including one adversary who died after
judgment.
57 Tex. 196-200, HODGES ▼. TAYLOR.
Creditor Seeking to Set Aside a Frandulent Conveyance must have
an enforceable claim.
Approved in Kaufman v.' Burchinell, 15 Colo. Ap. 525, 63 Pac.
787, assignee of note cannot attack fraudulent conveyance of goods
which were to have been security therefor; Biggs v. Hanrick, 59 Tex.
572, approval of barred purchase money note by probate court cannot
1109 NOTES ON TEXAS BEPOBTS. 57 Tex. 200-215
defeat plea of limitation; Cason ▼. Chambers, 62 Tex. 307, renewal
of note secured hy mortgage cannot affect rights obtained while
debt was barred; Flewellen v. Cochran, 19 Tex. Civ. 501, 48 S. W.
40, acknowledgment bj debtor cannot restore barred vendor's lien
against purchasers while debt was barred; Frank v. Frank (Tex.
Civ.), 25 S. W. 819, title vests in the wife where the husband con-
veys property to her with notice and with purpose to defraud cred-
itors.
67 Tez. 200-204, STATE ▼. STEEI.E.
Officer is not Estopped from claiming statutory salary by accept-
ing a lesser amount.
Approved in State v. La Grave, 23 Nev. 126, 43 Pac. 471, holding
superintendent of institution not entitled to salary of office with-
drawn from his charge; Blair v. Marye, 80 Ya. 492, legislature can-
not withhold salary from officer provided for by constitution.
Appropriation of Less than is fixed by general law as salary of
officer does not operate repeal or amendment of act fixing salary.
Approved in State v. Cook, 57 Tex. 207, applying rule where
statute provided that criminal judge should receive same salary as
district, and subsequent constitution reduced the amount and lesser
amount only appropriated. See note, 42 L. B. A. 38.
67 tez. 206-208, STATE ▼. OOOK.
Judges may Becover Statutory Salary, though appropriation was
for lesser amount.
Approved in State v. La Grave, 23 Nev. 126, 43 Pac. 471, holding
insufficient appropriation does not repeal act fixing officer's salary.
Where Statute Provided that cripiinal judge should receive same
salary as district judge and subsequent constitution reduced the
amount, judge entitled only to lesser amount.
See note, 42 L. B. A. 37.
67 TeoE. 209-216, TBEADWAY ▼. EASTBUBN.
Purchaaera at Ezecatlon Sale are not affected by reversal of judg-
ment, unless void.
Distinguished in Earnest v. Glaser, 32 Tex. Civ. 380, 74 S. W. 606,
where record does not show jurisdiction, service of citation may be
shown to have been fatally defective; Harle v. Langdon, 60 Tex.
662, purchaser from party after judgment takes title subject to
reversal on appeal.
Every Premimption is in Favor of Jadgmmt unless it affirmatively
appears that there was no jurisdiction.
Approved in State v. Cloudt (Tex. Civ.), 84 S. W. 416, reaffirming
rule; Jones v. Jefferson, 66 Tex. 578, 1 S. W. 94, court can vacate
default against corporation after service on person not an officer
thereof; Fowler v. Simpson, 79 Tex. 616, 617, 23 Am. St. Bep. 374,
375, 15 S. W. 684, holding judgment inoperative where record shows
insufficient publication of citation.
Becltal in Judgment of Due Service makes It good on collateral
attack, no matter what showing of service is made in record.
Approved in Bums v. Barker, 31 Tex. Civ. 83, 71 S. W. 328, where
service had on legal holiday; Heck v. Martin, 75 Tex. 472, 16 Am.
St. Bep. 918. 13 S. W. 52, Sloan v. Thompson, 4 Tex. Civ. 42o, 23 S.
W. 615, Moire v. Perry, 13 Tex. Civ. 210, 35 S. W. 840, GiUon v.
Wear, 9 Tex. Civ. 46, 48, 28 S. W. 1015, 1016, Cooper v. Mayfteld
57 Tex. 215-225 NOTES ON TEXAS EEPORTS. 1110
(Tex Civ.), 57 S. W. 50, and Davis v. Robinson, 70 Tex. 397, 7 8. W.
753, all applying rule and holding judgment not collaterally attack-
able; Graham v. East Texas Land etc. Co. (Tex. Civ.), 50 8. W. 580,
where the record shows affirmatively an appearance by or proper
service upon a defendant, such showing will be taken as absolutely
true on collateral attack; Brooks v. Powell (Tex. Civ.), 29 S. W. 812,
testimony is inadmissible in a collateral attack upon the juris-
diction of a court; Irwin v. Bexar Co., 26 Tex. Civ. 530, 63 S.
W. 552, and Williams v. Haynes, 77 Tex. 285, 19 Am. St. Rep.
753, 754, 13 S. W. 1030, both holding judgment not collaterally
attackable for fraud not apparent in record; Martin v. Bums, 80
Tex. 679, 16 S. W. 1073, applying rule and upholding execution sale;
Buse V. Bartlett, 1 Tex. Civ. 338, 21 S. W. 53, liams v. Root, 22
Tex. Civ. 416, 55 S. W. 413, and Hardy v. Beaty, 84 Tex. 567, 31
Am. St. Rep. 84, 19 S. W. 779, all upholding judgment where facts
defeating jurisdiction do not appear on record.
Distinguished in Martin v. Cobb, 77 Tex. 546, 14 S. W. 162, holding
void judgment collaterally attackable; Fowler v. Simpson, 79 Tex.
615, 23 Am. St. Rep. 372, 15 S. W. 683, holding judgment inoperative
where record shows insufficient publication of citation; Carlton v.
Miller, 2 Tex. Civ. 623, 21 S. W. 698, service of amended petition
will not be presumed from recital of service; Whitney v. Krapf,
8 Tex. Civ. 808, 27 S. W. 845, McCarthy v. Burtis, 3 Tex. Civ. 444,
22 S. W. 423, both holding that where judgment is silent, want of
notice may be shown; Pox v. Bobbins (Tex. Civ.), 62 S. W. 822,
vacating judgment against corporation for fraudulent acceptance
of service by officers.
Distinguished in Howard y. Oalbraith (Tex. Civ.), 30 8. W. 693,
on the facts.
57 Tex. 216-225, OLASSOOOK ▼. SHEIJCi.
Special Damages are Sncli as are not implied by law and must be
pleaded.
Approved in Missouri etc. Ry. v. Cook, 8 Tex. Civ. J85, 27 S. W.
772, rejecting proof of special personal injuries not alleged.
Usual Elements of Damage in breach of promise are disappoint-
ment of expectation, money loss, injury to feelings, pride and outlay,
if properly pleaded.
Approved in Lohner v. Coldwell, 15 Tex. Civ. 448, 39 S. W. 592,
applying rule and awarding damages; International etc. B. B. v.
Thompson (Tex. Civ.), 37 S. W. 25, reversing where specific elements
of damage were not alleged; Dolores Land etc. Co. v. Jones, 3 Tex.
Ap. Civ. 329, holding special damages, in trespass, must be specially
pleaded; G. C. etc. By. v. Styron, 2 Posey U. C. 276, 277, affirming
right of minor to sue by next friend. See note, 63 Am. Dec. 535.
Jury Should be Instructed as to what constitutes proper measure
of damages.
Approved in Willis v, McNeill, 57 Tex. 479, holding instructions not
to give greater damages than sum asked for erroneous; Gulf etc
Ry. y, Godair, 3 Tex. Civ. 516, 22 S. W. 778, reversing for erroneous
measure of damages in charge; Texas etc. Ry. v. Carr (Tex. Civ.), 42
S. W. 127, no error to call attention to the amount claimed as dam-
ages in the petition where the evidence supports the amount of the
verdict; Creve Coeur Lake Ice Co. v. Tamm, 90 Mo. Ap. 204, re-
mitting damages in excess of prayer, awarded by jury. See note,
63 Am. Dec. 546.
1111 NOTES ON TEXAS EEPOETS. 67 Tex. 225-253
57 Tte. 225-238, FOBT WOBTH ▼. DAVI&
Municipal Corporation, m a School IMstrlct^ cannot levy taxes ^or
school except as expressly authorized by the constitution.
Approved in Blanc v. Meyer, 59 Tex. 92, refusing to enjoin col-
lection of tax not clearly illegal; Perry v. Eockdale, 62 Tex. 453,
Werner v. Galveston, 72 Tex. 29, 7 S. W. 728, and Dwyer v. Ha-ck-
worth, 57 Tex. 250, all upholding city school tax voted and levied
under statute; Jodon v. Brenham, 57 Tex. 668, enjoining school tax
in excess of amount allowed by statute; Gibson v. Templeton, . 62
Tex. 557, legislature cannot confer on district court power not granted
by constitution; Swenson v. McLaren, 2 Tex. Civ. 336, 21 S. W.
303, holding school tax void where election therefor was called on
insufficient notice.
The Validity of the Froyisione in the Revised Statutes for eon-
testing elections is an open question.
Approved in Robinson v. Wingate, 36 Tex. Civ. 69, 74, 80 S. W.
1069, contest of local option election must be brought under statute,
and cannot be addressed to general jurisdiction of district court,
57 Tex. 2dS-243, BIOHAM ▼. BIGHAM.
Parol Evidence is not Admissible to vary written warranty.
Approved in St. Louis etc. By. v. Dearborn, 60 Fed. 882, rejecting
parol evidence to vary consideration named in release; Crouch v.
Johnson, 7 Tex. Civ. 439, 27 S. W. 11, in absence of ambiguity in a
bond, parol is not admissible to show what the parties understood
by a '^warranty deed in common form.*'
Distinguished in Johnson v. Elmen, 24 Tex. Civ. 45, 59 3. W.
606, admitting parol proof to show nonfailure of consideratioTi;
Warren v. Clark (Tex. Civ.), 24 S. W. 1107, error to admit testimony
tending to. vary the terms of the covenants of warranty.
Misrepresentation, to avoid a contract, must be as to existing
facts.
Approved in Detroit Electrical Works v. Riverside St. By. (Tex.
Civ.), 29 S. W. 413, reaffirming rule; Bruner v. Strong, 61 Tex. 559,
representation with assertion that party will not be bound thereby
will not avoid contract; Monks v. McGrady, 71 Tex. 140, 8 S. W.
620, in suit to reform deed, evidence of mistake or fraud must bo
clear; Chicago etc. Ry. v. Titterington, 84 Tex. 223, 31 Am. St. Rep.
43, 19 S. W. 473, unfulfilled promise to erect station will not. avoid
deed to right of way; Marx v. Schwartz, 14 Or. 181, 12 Pac. 255,
holding unfulfilled promises will not avoid guaranty; Landreth v.
Schevenel, 102 Tenn. 489, 52 S. W. 148, unfulfilled promise to re-
main in business does not avoid settlement with creditors; St. Louis
etc. Ry. V. Dearborn, 60 Fed. 883, unfulfilled promise of futuro
action will not avoid release, See note, 10 L. B. A. (n. s.) 641.
57 Tex. 243-245, HORN ▼. SHAMBUK.
Petition on Agreement Within Statute of Ftands need not allege
that it was in writing.
See note, 78 Am. St. Rep. 648.
£7 Tex. 245-253, DWTEB ▼. HACKWOBTH.
Determination of Besnlt of Election by city cooneil cannot be col-
laterally attacked*
57 Tex. 253-258 NOTES ON TEXAS EEPORTS. 1112
Distinguished in Swenson v. McLaren, 2 Tex. Civ. 336, 21 S. W.
303, holding school tax voted at election held on insufficient notice
void.
Municipal Ck>rporatioii may Levy Tax not exceeding one-half per
cent for school purposes, though more than required.
Approved in Jodon v. Brenham, 57 Tex. 658, holding school tax
exceeding statutory limit invalid; Werner v. Galveston, 72 Tex. 29,
7 S. W. 728, Perry v. Rockdale, 62 Tex. 453, both upholding validity
of school tax voted and levied under statute; Peck-Smead Go. v.
Sherman, 26 Tex. Civ. 209, 63 S. W. 341, refusing recovery on con-
tract to build schoolhouse without showing board's authority.
Municipal OorxK)ration may levy tax for sehoolhouses.
Approved in Peck v. Hempstead, 27 Tex. Civ. 84, 65 S. W. 655,
reaffirming rule.
Limited in Waxahachie v. Brown, 67 Tex. 525, 4 B. W. 208, city
cannot issue bonds for erection of schoolhouses.
Validity of Tax Levied to Pay Intereet on bonds is not affected
by appropriation of money received for bond to unauthorized pur-
pose.
Approved in Blanc v. Meyer, 59 Tex. 92, refusing to enjoin collec-
tion of tax not clearly illegal.
Distinguished in Buie v. Cunningham (Tex. Civ.), 20 S. W. 804,
bondholders are proper parties to suit to declare the bonds void;
Brenham v. German-American Bk., 144 U. S. 179, 187, 12 Sup. Ct.
561, 564, 36 L. 393, refusing recovery on unauthorized city bonds.
Collection of Tax to Pay Interest on invalid bonds cannot be en-
joined without making bondholders parties.
Approved in King v. Commissioners Court, 10 Tex. Civ. 115, 30*
S. W. 258, remanding suit to enjoin issue of bonds where agreed
taker was not a party. See note, 3 L. R. A. (n. s.) 257.
The Collection of a Tax to pay bonds cannot be enjoined unless
the bondholders are made parties.
Approved in Boesch v. Byrom, 37 Tex. Civ. 39, 83 S. W. 20, re-
affirming rule.
57 Tex. 253-255, FREEMAN ▼. BBT7NDAOE.
Sheriff's Eetum, Different Slightly in Description of land from
answer and original execution, is admissible.
Approved in Broxson v. McDougal, 63 Tex. 196, holding descriptioa
in deeree inaccurately identifying one line sufficient; Hal fin v.
Winkleman, 83 Tex. 167, 18 S. W. 433, admitting vendor's lien note
misstating pages where deed was recorded.
57 Tex. 255-258, OBIGSBY ▼. MAY.
Objection to Form and Manner of Taking Deposition must be^
made by written notice to opponent before trial.
Approved in McMahan v. Veasey (Tex. Civ.), 60 8. W. 333, over-
ruling objection to deposition where no previous notice was given.
"Where Depositions have Been on File for over two years, and
no objections are made to them until offered in evidence at trial,,
continuance should be granted on ground of surprise at ruling ex-
cluding the depositions on verbal motion, where the evidence con-
tained therein is material.
Approved in McMahan v. Veasey (Tex. Civ.), 60 S. W. 334, where
deposition previously on file is excluded on objection as to form, con-
tinuance should be granted opposite party.
1113 NOTES ON TEXAS BEP0BT8. 57 Tex. 259-282
67 T^X. 259-268, OABUTH ▼. OBIGSBT.
Where Facts are not Disputed, court may assume their truth in
charging jury.
Approved in Wright v. Hardie (Tex. Civ.), 30 S. W. 676. See
note, 72 Am. Dec. 544, following rule.
Land Granted to Man because he was married ia community prop-
erty, though grant dated after wife's death.
Cited in Grigsby v. Peak, 57 Tex. 143, following rule; Ahem v.
Ahem, 31 Wash. 337, 96 Am. St. Bep. 912, 71 Pac. 1024, homestead
initiated during marriage is community property though final proof
made afterward. See notes, 96 Am. St. Bep. 919; 86 Am. Dec. 631.
Party la Ooncluded by a Judgment only in the right in which he
sued or is sued.
Approved in Grigsby v. Peak, 68 Tex. 236, 237, 2 Am. St. Bep. 488,
489, 4 S. W. 474, 475, holding conveyance of partition interest in
father's estate no estoppel from claiming large interest in same land
inherited from mother; Downing v. Diaz, 80 Tex. 455, 16 S. W. 55,
holding suit against state by heirs' to establish title no bar to subse-
quent Buit to quiet title; Harris & Cole Bros. v. Columbia Water etc.
Co., 114 Tenn. 337, 85 S. W. 899, denial of relief to plaintiff because
it was a foreign corporation no bar to subsequent action in which it
appeared that it was a partnership; Melton v. Pace, 103 Tenn. 488,
53 S. W. 940, foreclosure against lands inherited from father will not
prevent heirs claiming land inherited from mother and erroneously
included in sale; Grigsby v. May, 84 Tex. 245, 19 S. W. 343, ar-
guendo.
Partition of Community Property ignoring interest of child as
heir of mother is not binding upon it.
Approved in Cole v. Grigsby (Tex. Civ.), 35 S. W. 685, reaffirming
mle; Beer v. Thomas, 13 Tex. Civ. 34, 34 S. W. 1011, holding fore-
closure not binding on heirs or administrator of mortgagor not made
parties.
A Party is Charged Witb Notice of every fact recited in the chain
of title through which his right to land is claimed.
Approved in O'Mahoney v. Flanagan, 34 Tex. Civ. 246, 78 S. W.
246, recital of consideration sufficient to put purchaser on inquiry
whether land was wife's separate property.
Miscellaneous. — Grigsby v. Caruth, 57 Tex. 269, another phase of
same case.
57 Tex. 269-273, GBIGSBT ▼. CABUTH.
Party not Estopped by Recitals in Deed where trae state of title
is known to both parties and there was no fraud.
Approved in Grigsby v. Peak, 57 Tex. 152, Grigsby v. Peak, 68
Tex. 236, 237, 2 Am. St. Bep. 488, 489, 4 S. W. 474, 475, both hold-
ing conveyances of partition interest in father's estate no estoppel
from claiming larger interest in same land inherited from mother.
Miscellaneous.— Cited in Peak v. Swindle, 68 Tex. 246, 4 S. W.
478, and Grigsby v. May, 84 Tex. 245, 19 S. W. 343, referred to as
showing history of other branches of same litigation.
57 Tex. 273-282, FBENCH ▼. OBENBT.
Purchaser in Good Faltb, entitled to allowance for improvements,
is one who has reasonable grounds to believe he is the true owner.
Approved in Nolan v. Moore (Tex. Civ.), 70 S. W. 786, applying
rule to conveyance under wife's power of attorney, invalid because
57 Tex. 283-293 NOTES ON TEXAS REPORTS. 1114
«
husband did not join therein; Cole v. Bammel, 62 Tex. 117, allowing
claim for improvements where ^agent's sale was disaffirmed by mar-
ried woman; House v. Stone, 64 Tex. 683, awarding value of improve-
ments to claimant under invalid tax title; Cahill v. Benson, 19 Tex.
Civ. 41, 46 S. W. 894, Johnson v. Schumacher, 72 Tex. 338, 12 S. W.
208, both allowing improvements to holder unaware of defective
title; Van Zandt v. Brantley, 16 Tex. Civ. 424, 425, 42 S. W. 619,
awarding improvement after sale by agent for unauthorized price;
Brockenborough v. Melton, 55 Tex. 507, arguendo.
Distinguished in Thompson v. Comstock, 59 Tex. 320, disallowing
claim for improvements by unauthorized pre-emptor of school lands.
Pnrdiaser at Sale of Court without jurisdiction, whose paymeats
have discharged claims against the estate, must be reimbursed be-
fore eviction.
Approved in Northcraft v. Oliver, 74 Tex. 167, 11 S. W. 1122,
Macmanus v. Orkney (Tex. Civ.), 39 8. W. 619, both reaffirming rule;
Bums V. Ledbetter, 56 Tex. 286, where purchaser at void execution
sale it attorney for judgment plaintiff, he may nevertheless recover
price paid where it has been applied to satisfaction of judgment;
Cutter V. Burroughs, 100 Me. 392, 61 Atl. 772, applying rule to illegal
sale by guardian ; Polts v. Ferguson, 77 Tex. 305, 13 S. W. 1038, minors
must repay money before avoiding sale of their land subject to
judgment lien; Cason v. Connor, 83 Tex. 30, 18 S. W. 670, holding
party assuming mortgage notes subrogated to original holder's rights;
Halsey v. Jones, 86 Tex. 491, 25 S. W. 697, money must be repaid
before recovery of land subject to debt, sold at void probate sale;
Blinn v. McDonald, 92 Tex. 612, 50 8. W. 931, creditor can recover
against land subject to debts after distribution to heirs; Terry v.
Cutler, 4 Tex. Civ. 576, 23 S. W. 541, purchaser from vendee cannot
recover land without repaying money paid at void foreclosure of
vendor's lien; Van Zandt v. Brantley, 16 Tex. Civ. 426, 42 8. W. 620,
allowing for improvements after sale by agent for unauthorized
price; Fowler v. Maus, 141 Ind. 55, 40 N. E. 59, holding grantee
from husband alone, paying encumbrances, subrogated to encum-
brancers' rights; Murphy v. Smith (Tex. Civ.), 50 S. W. 1042, a
payment made to protect an interest entitles the payor to be subro-
gated to rights of payee; Texas Elevator etc. Co. v. Mitchell, 7 Tex.
Civ. 231, 28 S. W. 49, arguendo, in suit to set aside an assignment
of a judgment (made under mistaken idea of facts) or in alterna-
tive damages. See note, 69 L. R. A. 41.
Distinguished in McCormick v. Edwards, 69 Tex. 108, 6 S. W. 33,
holding purchaser at void tax sale cannot recover amount paid.
57 Tex. 283-293, 44 Am. Bep^ 589, WfiSTESN UNION TEL. CO. ▼.
NEILL.
Telegraidi Company may Limit Its Liability for delays and er-
rors, not caused by fraud or negligence, by printed notices brought
to knowledge of patrons.
Approved in Western Union Tel. Co. v. Harper, 15 Tex. Civ. 38,
39 S. W. 599, following rule; Western Union Tel. Co. v. Goslin, 3
Tex. Ap. Civ. 267, refusing recovery where claim was not presented
within stipulated time; Beasley v. Western Union Tel. Co., 39 Fed.
186, holding company liable for negligent mistake in message; Qulf
etc. By. V. Wilson, 69 Tex. 741, 7 S. W. 655, Western Union Tel. Co.
V. Rosentreter, 80 Tex. 416, 16 S. W. 28, and Western Union Tel. Ck).
1115 NOTES ON TEXAS BEPORTS. 57 Tex. 293-306
V. BrowHy 58 Tex. 174, 44 Am. Bep. 612, all awarding damages for
failure to deliver telegram; Womack v. Western Union Tel. Co.,
58 Tex. 181, 44 Am. Rep. 618, 619, refusing recovery for mistake
in unrepeated message; Western Union Tel. Co. v. Edsall, 63 Tex.
. 674, refusing recovery for mistake in miessage written by operator
but signed by sender; Western Union Tel. Co. v. Reeves, 8 Tex. Civ.
43, 27 S. W. 321, awarding damages for erroneous transmission of
telegram; Beasley v. Western Union Tel. Co., 39 Fed. 184, Western
Union Tel. Co. v. Odom, 21 Tex. Civ. 541, 52 8. W. 634, both award-
ing damages for negligent mistake in message; Western etc. Tel.
Co. V. Norris, 25 Tex. Civ. 47, 60 8. W. 984, awarding damages for
nondelivery of telegram through negligent mistake in name; Jones
V. Western U. Tel. Co., 18 Fed. 719, refusing recovery beyond stipu-
lated amount for error in . half -rate message; Johnston v. Western
Union Tel. Co., 33 Fed. 363, holding printed provision that claim
must be presented within thirty days void; Fowler v. Western
Union Tel. Co., 80 Me. 388, 6 Am. St. Rep. 214, 15 Ail. 31, refusing
recovery for loss of message in fire. See notes, 71 Am. Dec. 465, 470,
473; 81 Am. Dec. 612, 614, 615; 10 Am. St. Rep. 711; 117 Am. St.
Rep. 287.
Telegraph Company may Beqnire as a condition of liability that
message be repeated at reasonable cost.
Approved in Western Union Tel. Co. v. Hearne, 77 Tex. 84, 13
S. W. 971, Western Union Tel. Co. v. Linn (Tex. Civ.), 23 S. W. 897,
Western Union Tel. Co. v, Elliott, 7 Tex. Civ. 486, 27 S. W. 221,
Western Union Tel. Co. v. Catchpole, 1 Tex. Ap. Civ. 108, Western
Union Tel. Co. v. Smith, 3 Tex. Ap. Civ. 87, and Womack v. West-
em Union Tel. Co., 58 Tex. 179, 44 Am. Rep. 616, all refusing
damages for mistake in unrepeated message. See note, 11 L. R, A.
(n. B.) 564.
Damage Done by Another should be averted as far as possible, with
reasonable exertion by the sufferer.
Approved in Womack v. Western Union Tel. Co., 58 Tex. 182,
44 Am.' Rep. 619, refusing recovery for mistake in unrepeated mes-
sage, where loss was avoidable.
57 Tex. 29S-S06, HOUSTON ETC. K. B. v. COWSEB.
Where Complaint Does not Show Contributory Negligence, burden
of proving same is on defendant.
Approved in St. John v. Gulf Ry. Co. (Tex. Civ.), 80 S. W. 237,
reaffirming rule; Gulf etc. Ry. v. Redeker, 67 Tex. 188, 2 S. W. 514,
applying rule and awarding damages to injured brakeman; Murray
V. Gulf etc. Ry., 73 Tex. 6, 11 S. W. 126, Gulf etc. Ry. v. Shieder,
88 Tex. 161, 30 S. W. 904, 28 L. R. A. 538, Dallas Traction Ry. v.
Hurley, 10 Tex. Civ. 251, 31 S. W. 75, Gulf etc. Ry. v. Finley, 11
Tex. Civ. 72, 32 S. W. 54, Central Texas etc. Ry. v. Bush, 12 Tex.
Civ. 294, 34 S. W. 134, Pares v. St. Louis etc. Ry. (Tex. Civ.), 57
S. W. 302, San Antonio etc. Ry. v. Bennett, 76 Tex, 155, 13 S. W.
320, Galveston Rope etc. Co. v. Burkett, 2 Tex. Civ. 310, 21 S. W.
958, and Brown v. Sullivan, 71 Tex. 475, 10 S. W. 289, all holding
defendant must allege and prove contributory negligence, when not
implied by plaintiff; Texas etc. Ry. v. Magrill, 15 Tex. Civ. 358, 40
S. W. 190, rejecting evidence of disobedience of orders under gen-
eral allegation of contributory negligence. See note in 62 Am. Dec.
687; Barnes v, Zettlemoyer, 25 Tex. Civ. 470, 62 S. W. Ill, admit-
'/
57 Tex. 293-306 NOTES ON TEXAS BEPOET8. 1116
ting evidence of general custom of keeping dynamite in hardware
stores, in action for explosion.
In Suit for Negligence, experts may testify as to nsnal method of
switching cars, and how plaintiff's intestate was doing it.
Approved in Texas etc. By. v. Reed (Tex. Civ.), 32 S. W. 123,
evidence of duties of a yardmaster is admissible to show that the
yardmaster had authority to employ and discharge the deceased.
See note, 66 Am. Dec. 243.
In Snit for Deatb of Belative pecuniary loss is recoverable, but
not solatium.
Approved in Winnt v. International etc. R. R., 74 Tex. 34, 11 S.
W. 907, 5 L. R. A. 172, affirming rule; International etc. R. R. v.
Kindred, 57 Tex. 498, admitting evidence of mother's pecuniary con-
dition to show expectation of assistance from deceased; Missouri etc.
Ry. V. Lee, 70 Tex. 503, 7 S. W. 860, Missouri etc. Ry. v. Lee, 70
Tex. 501, 7 S. W. 859, both awarding damages for death at railway
crossing; Brunswig v. White, 70 Tex. 509, 8 S. W. 88, awarding
damages for wrongful killing of child; Missouri etc. Ry. v. Henry,
75 Tex. 224, 12 S. W. 830, awarding damages to mother for death of
son; Gainesville etc. Ry. v. Lacy, 86 Tex. 247, 24 S. W. 271, awarding
damages to husband for injury to wife, for loss of services; Gal-
veston etc. Ry. V. Davis, 4 Tex. Civ. 476, 23 S. W. 305, allowing
recovery for expectation of aid after majority of deceased son;
Southern Pacific Co. v. Tomlinson, 163 U. S. 374, 16 Sup. Ct. Rep.
1173, 41 L. 195, awarding damages for death to wife and children.
In Suit for Death of Son, occupation, health, habits, earnings, skill,
age, and probable longevity are admissible.
Approved in International etc. R, R. v. McNeel (Tex. Civ.), 29
S. W. 1134, following rule; Cameron Mill etc. Co. v. Anderson, 98
Tex. 160, 81 S. W. 282, 1 L. R. A. (n. s.) 198, admitting evidence
that boy was economical in his habits and obedient to his mother;
Texas etc. Ry. v. Douglas, 73 Tex. 330, 11 S. W. 334, injured per-
son may show habits of industry and sobriety to estimate damages;
San Antonio etc. Ry. v. Bennett, 76 Tex. 153, 13 S. W. 319, admitting
life tables to show probable duration of life in estimating damages;
International etc. Ry. v. Kuehn, 2 Tex. Civ. 216, 21 S. W. 61, award-
ing damages to decedent's wife and children for negligent killing;
Gulf etc. Ry. v. Finley, 11 Tex. Civ. 70, 32 S. W. 53, holding loss of
solace, jcomfort and affection not elements of damage; Galveston etc.
Ry. Co. V. Power (Tex. CiV.), 54 S. W. 629, the measure of dam-
ages in suit for damages for death of an adult child depends on the
will and ability of the child to confer benefits on the parent; Hall
V. Galveston etc. Ry., 39 Fed. 22, San Antonio Traction Co. v. White
(Tex. Civ.), 60 S. W. 324, both admitting evidence of son's health,
strength, willingness, etc., in awarding damages for his death; Mc-
Adory v. Louisville etc. R. R., 94 Ala. 276, 10 So. 509, holding ver-
dict of nine thousand three hundred and ninety-five dollars excessive
for killing twenty year old switchman; New York etc. R. R. v.
Mushrush, 11 Ind. Ap. 196, 37 N. E. 956, upholding verdict of one
thousand dollars for death of twelve year old son. See notes, 12 Am.
St. Rep. 382; 59 Am. St. Rep. 599; 1 L. R. A. (n. s.) 199.
Corporation is not Liable for Exemplary Damages for act of or-
dinary servant, not authorized or ratified.
Approved in Missouri etc. Ry. Co. v. Freeman, 97 Tex. 399, 79 S.
W. 11, railroad not liable for negligence of its hospital employee in
1117 'JTOTES ON TEXAS EEPORTS. 57 Tex. 307-323
spreading smallpox; Winnt v. International etc. B. R., 74 Tex. 35, 11
S. W. 908, 5 L. R. A. 172, applying rule and refusing exemplary
damages; Texas etc. Ry. v. Hill, 71 Tex. 458, 9 S. W. 352, awarding
damages for negligent killing at railway crossing; International etc.
Ry. V. Kuehn, 11 Tex. Civ. 22, 31 S. W. 323, Dallas City R. R. v.
Beeman, 74 Tex. 293, 11 S. W. 1103, both holding railroad not liable
for killing without gross negligence, under statute; International etc.
Ry. V. McDonald, 75 Tex. 46, 12 8. W. 861, refusing exemplary
damages for death by negligence of railroad servants. See notes,
62 Am. Dec. 385, 387, 388.
Miscellaneous. — Cited in International etc. R. Co. v. Edwards, 100
Tex. 24, 93 S. W. 106, omission of crossing signals will not excuse
traveler from looking for train.
^7 Tex. 307-321, STATE ▼. MOOBE.
Ckmnty AttoriMy has Bight to Bepreseiit State in district courts
as against the attorney general, except as especially granted to
latter.
Approved in Howth v. Greer, 40 Tex. Civ. 557, 90 8. W. 213,
county attorney has exclusive right to represent state in criminal
•cases in corporation court, though for offenses covered also by city
ordinances; State v. International etc. Ry., 89 Tex. 566, 35 8. W.
1068, county attorney cannot file information in nature of quo war-
ranto against corporation; Harris Co. v. Stewart, 91 Tex. 146, 41
S. W. 657, charter imposing such duties on city attorney is uncon-
atitutional.
Distinguished in Moore v. Bell, 95 Tex. 156, 66 8. W. 47, suits
for violation of the railroad commission law committed exclusively
to attorney general; Duncan v. State, 28 Tex. Civ. 450, 451, 67 8.
W. 905, under statute, county attorney, as such, has no right to inter-
vene in suit for state school land.
Disapproved in Brady v. Brooks, 99 Tex. 374, 375, 377, 379, 89
8. W. 1054, 1055, legislature may make it the exclusive duty of the
attorney general to prosecute suits on behalf of state.
Courts caimot Grant Fees to district attorneys where legislature
fails to fix the rate.
Approved in State v. Hart, 96 Tex. 104, 70 8. W. 948, act giving
court clerk five per cent of all fines, etc., collected by state on judg-
ments does not apply to civil actions to recover penalties; Ex parte
Hart, 41 Tex. Cr, 589, 56 S. W. 344, semble, provision of corpora-
tion court bill denying county attorney fees for representing state in
such court is constitutional; Howth v. Greer, 40 Tex. Civ. 559, 90
S. W. 212, county attorney not entitled to fees for prosecuting cases
in corporation court; Wharton Co. v. Ahldag, 84 Tex. 15, 16, 19 S. W.
292, applied to fees of county treasurer; Austin v. Johns, 62 Tex.
183, city attorney entitled to ten per cent of judgment collected in
addition to fees; Ex parte Hart (Tex. Cr.), 56 8. W. 344, intimating
but not deciding that a corporation court bill depriving the county
attorney of fee for representing the state is constitutional.
57 Tex. 321-323, GOOMBES v. THOMAS.
Certificate of Acknowledgment of Deed to married woman show-
ing that she was examined "separate and apart" from husband is
sufficient.
Approved in Stringer v. Swenson, 63 Tex. 13, certificate similar
to cited case is suflicient; Gray v. Kauffman, 82 Tex. 69, 17 a W.
57 Tex. 326-344 NOTES ON TEXAS BEPOBTS. 1U8
515, holding certificate a substantial compliance witli statute;
Thompson v. Johnson, 84 Tex. 553, 19 S. W. 785, certificate showing
she willingly signed it is sufficient; Johnson v, Thompson (Tex. Civ.),
50 S. W. 1057, the certificate of acknowledgment is construed as
reciting what transpired between the officer and the married woman
at the time of taking the acknowledgment; Thompson v. Johnson,
92 Tex. 360, 50 S. W. 1057, holding certificate sufficient; Langton
V. Marshall, 59 Tex. 298, holding certificate failing to show full ex-
planation of deed insufficient; Clark v. Groce, 16 Tex. Civ. 456, 457,
41 S. W. 670, recital of examination "apart" from husband is suf-
ficient.
57 Tex. 326-827, DAVIS ▼. BALADEE.
On Final Separation of Huflband and Wife, she may contract re-
garding her separate property.
Approved in Dority v. Dority, 96 Tex. 226, 71 S. W. 955, 60 L. B.
A. 941, upholding injunction restraining husband from controlling
property of wife on account of his mismanagement; Woodson v.
Massenberg, 3 Tex. Civ. 148, 22 S. W. 107, allowing wife to dispose
of community property; Bennett v. Montgomery, 3 Tex. Civ. 226,
22 S. W. 117, allowing deed of separate property five years after wife
abandoned husband; St. Louis etc. By. v. Griffith, 12 Tex. Civ. 636,
35 S. W. 744, abandoned wife may sue alone for tort. See note, 64
Am. St. Bep. 868.
57 Tex. 327-333, BBOWN ▼. BENTFBO.
In Order to have Decree Made on Stipulation vacated, it is not suf-
ficient to show insanity at time of agreement, but insanity at time
of judgment must be shown.
Approved in Denni v. Elliott, 60 Tex. 839, decree against lunatic
not subject to collateral attack. See notes, 130 Am. St. Bep. 851;
39 L. B. A. 781.
Distinguished in Scott v. Farmers' etc. Nat. Bank (Tex. Civ.), 66
S. W. 493, court must render judgment in accordance with special
verdict or set it aside.
Judgment Non Obstante Veredicto is rendered for plaintiff where
defendant sets up matters constituting no defense and upon which the
jury finds in his favor.
Approved in Templeman v. Gibbs'CTex. Civ.), 25 S. W. 737, plaintiff
can make a motion for judgment non obstante veredicto where the
verdict is for defendant upon facts that present no defense.
Distinguished in Davis v. Pullman, 34 Tex. Civ. 623, 79 S. W. 637,
denying judgment non obstante veredicto against defendant who has
obtained favorable verdict, on verdict against codefendant^
67 Tex. 341-344, BUST ▼. TX7BNEB.
Joint and Several Obligation may be set off against one of the
obligors, suing on a separate indebtedness.
Approved in C. H. Larkin Co. v. Dawson, 37 Tex. Civ. 347, 83 S. W.
882, reaffirming rule; Fleming v. Stansell, 13 Tex. Civ. 561, 36 S. W.
505, joint and several debt may be offset against a debt due either;
Seligmann v. Heller Bros. Clothing Co., 69 Wis. 414, 34 N. W. 234,
assigned judgment against plaintiff and others of insolvent firm may
be set off in suit for labor.
1119 NOTES ON TEXAS BEPOBTS. 57 Tex. 344-362
DiBtinguiflhed in Adoue v. Hutches, 32 Tex. Civ. 560, 75 S. W. 42,
holder of note not liable for depreciation of stock given him as col-
lateral security where no demand made upon him to sell.
Where Oonnterclaiin Consisting of Judgment is erroneously excluded,
cause is reversed so that judgment may be shown to have been set
aside.
Approved in Gunter v. Armstrong, 2 Tex. Civ. 601, ^1 S. W. 608,
where judgment under which plaintiff in trespass to try title claimed
is claimed to be a nullity, and trial court excluded the claim, appel-
late court will remand cause so as to allow facts to be shown.
57 Tez. 344-349, DOUGIiASS v. MUNDINE.
Where Notes Fledged as Collateral are lost by negligence of pledgee
in collecting, he is liable to pledgor.
Approved in Carpenter v. Sanborn (Tex. Civ.), 25 S. W. 36, holder
of collateral security should be required to show its loss to the debtor;
Marberry v. Farmers' etc. Nat. Bk., 6 Tex. Civ. 609, 26 S. W. 215, de-
fendant must allege loss or negligence. See notes, 70 Am. Dec. 501;
32 Am. St. Bep. 719.
67 Tex. 849-352, STBINGFEItLOW v. MONTGOMEBT.
Plaintiff Administrator cannot Testify as to conversation between
intestate and defendant.
Approved in Gillaspie v. Murray, 27 Tex. Civ. 583, 66 S. W. 254, in
action by heirs, defendant claiming under sale cannot testify that
deceased beneficiary requested trustee to sell land; Parks v. Caudle, 58
Tex. 222, party may not testify as to conversations between deceased
and third persons; Hicks v. Hicks (Tex. Civ.), 26 S. W. 229, husband
of an heir and also a party to the suit is precluded from testifying
to statements between deceased and plaintiff.
67 Tez. 362-364, MATS v. OOCKRTJM.
Estate of Surety on Joint Obligation is bound after his death.
Approved in Bergstroem v. State, 58 Tex. 95, and Glasscock v.
Hamilton, 62 Tex. 150, both reaffirming rule; Allen v. Stovall (Tex.
Civ.), 62 S. W. 88, and AUen v. Stovall, 94 Tex. 627, 63 S. W. 865,
both applying to bond executed before 'repeal of statute.
Distinguished in Boyd v. Bell, 69 Tex. 738, 7 S. W. 658, under Be-
vised Statutes, estate not receiving benefit is discharged.
57 Tex. 364-362, 44 Am. Bep. 698, KNITTEL v. GUSHING.
Purported Contract of Bentlng of Piano held to be a sale, and not
being recorded, purchaser in good faith takes title.
Approved in Tufts v. Blanton, 2 Tex. Ap. Civ. 227, holding creditor
retaining vendor's lien takes priority over assignee of personalty;
Hays V. Jordan, 85 Ga. 749, 11 S. E. 835, 9 L. B. A. 373, holding con-
tracts conditional sale, and requiring return of money; Baldwin v.
Van Wagner, 33 W. Va. 298, 10 S. E. 718, holding void without record-
ing. See notes, 2 Am. St. Bep. 579; 3 Am. St. Bep. 199; 94 Am. St.
Bep. 250.
Overruled in City Nat. Bk. v. Tufts, 63 Tex. 117, chattel sold with
title remaining in vendor cannot be seized by creditors of vendee;
Dunn V. Elser, 2 Tex. Ap. Civ. 633, holding vendee under conditional
sale cannot pass title to bona fide purchaser.
67 Tex. 362-385 NOTES ON TEXAS REPORTS. 1120
57 Tex. 362-364, KAKDAItL v. BTJRTI8.
Transcript of Jud^fment reciting it was rendered on trial before
named justice of circuit court of New York City, attested by different
person styling himself justice of the supreme court of New York state^
is not properly certified.
See note, 5 L. R. A. (n. s.) 964.
67 Tex. 367-373, LANE v. SCOTT.
Any Binding Agreement Extending Time of payment discbarges
surety, irrespective of benefit.
Approved in Casey-Swasey Co. v. Anderson, 37 Tex. Civ. 226, 83 S.
W. 841, deed of trust to secure debts of another released by acceptance
of note for debts; Stafford v. Christian (Tex. Civ.), 79 S. W. 597, in
contract to exchange horses for cattle agreement to reduce price of
horses or extend time for delivery of cattle released surety; West-
brook V. Belton Nat. Bank (Tex. Civ.), 75 S. W. 843, one executing
trust deed to indemnify surety on note not bound on renewal note
made without her consent; Gardner v. Watson, 76 Tex. 32, 13 S. W.
41, guarantor must consent to be bound by new agreement; Clark v.
Cummings, 84 Tex. 614, 19 S. W. 799, and Durrell v. Farwell, 88 Tex.
107, 30 S. W. 542, both applying to alteration of terms; Randall v.
Smith, 2 Posey U. C. 398, holding sureties of building contractor dis-
charged by alteration of contract; Albright v. Allday (Tex. Civ.), 37
S. W. 651, sureties are not bound by act of commissioner's court in
directing the principal to release a mortgage in lieu of other securities
without their consent.
Mutual Agreement Obanging Date of Performance of executory con-
tract discharges surety, without other consideration.
Approved in Krueger v. Klinger, 10 Tex. Civ. 579, 30 S. W. 1088,
payment of interest due is no consideration of extension of time;
Butler V. Sanger, 4 Tex. Civ. 415, 23 S. W. 489, deed of trust prefer-
ring creditors is based on consideration.
57 Tex. 374-378, QAGE v. NEBLETT.
Judgment Lien is Prior in Bight to after-acquired homestead.
Approved in Fort v. Powell,. 59 Tex. 322, and Wright v. Straub, 64
Tex. 66, both reaffirming rule; Low v. Tandy, 70 Tex. 748, 8 S. W. 621,
residence on leased premises could not affect right to exemption for
his place of business. See note, 93 Am. Dec. 352; 34 Am. St. Rep. 496.
Distinguished in Van Ratcliff v. Call, 72 Tex. 495, 10 S. W. 580,
holding sale not subject to judgment lien; Wallis v. Wendlcr, 27
Tex. Civ. 237, 65 S. W. 44, on the facts.
67 Tex. 379-382, GABSON v. KET.T.
Defense to Note for Invalidity of Title must show that purchaser
had no notice of defects at time of sale.
Approved in Fagan v. McWhirter, 71 Tex. 569, 9 S. W. 678, and
Earle v. Marx, 80 Tex. 43, 15 S. W. 596, both reaffirming rule. See
note, 21 L. R. A. (n. s.) 386.
67 Tex. 382-385, GOBSIOANA v. WHITE.
Municipal Corporation is not Liable for illegal acta of officers.
Approved in Whitfield v. Paris, 84 Tex. 433, 31 Am. St. Rep. 71, 19
S. W. 567, 15 L. R. A. 783, and Givens v. Paris, 5 Tex. Civ. 708, 24
S. W. 974, both holding not liable for shooting by policeman; Bates y.
1121 NOTES ON TEXAS BEPOBTS. 67 Tex. 388-404
Houston, 14 Tex. Civ. 289, 7 8. W. 383, not liable for negligent acts of
quarantine officer; McFadin v. San Antonio, 22 Tex. Civ. 142, 54 S. W.
49, eity^ not liable for arrest under void ordinance. See notes, 30
Am. St. Bep. 410; 44 L. B. A. 799.
Where Plaintiff is Willing to have Street Opened, but wants com-
pensation, injunction should not be granted.
Distinguished in Love v. Powell, 67 Tex. 16, 2 8. W. 456, plaintiff
entitled to trial on merits, though not requested.
One Oonyeying Land by Bef erence to Plats showing streets is bound
thereby.
Approved in City of Corsicana v. Anderson, 33 Tex. Civ. 600, 78 S.
W. 263, reaffirming rule; Bond v. Texas etc. By., 15 Tex. Civ. 286, 39
S. W. 980, vendor of land according to plat cannot recover alleyway
inclosed by abutters; Ostrom v. Arnold, 24 Tex. Civ. 194, 58 S. W.
632, vendor of property according to plat cannot deny dedication,
though alwaye inclosed.
57 Tex. 388-381, ZOBN ▼. TABVEB.
Pnrcliaser from Survlylng Wife in good faith is prior to unrecorded
conveyance from husband.
See notes, 86 Am. Dec. 638, 639.
67 Tex. 395-402, HABDESTT ▼. FLEMINO.
In Absence of Assignment of Errors, appellate court will consider
only material errors.
Beaffirmed in McCord v. Holloman (Tex. Civ.), 46 S. W. 115.
niegal Taxes Paid Under Protest may be recovered from collector,
provided suit is promptly brought before money is paid over by
collector.
Overruled in Continental Land etc. Co. v. Board, 80 Tex. 492, 16
8. W. 313, officer is not liable; Texas Land etc. Co. v. Hemphill (Tex.
Civ.), 61 8. W. 334, disallowing recovery against tax collector. See
note, 4 L. B. A. 303.
Payment of Illegal Taxes may be recovered back, without contesting
assessment before board of equalization.
Approved in Court v. O'Connor, 65 Tex. 340, enjoining sale.
Personal Property Having Situs in State is taxable, irrespective of
residence of owner.
Approved in Llano Cattle Co. y. Faught, 69 Tex. 406, 5 S. W. 496,
property in unorganized counties taxed in one to which it is attached;
Clampitt V. Johnson, 17 Tex. Civ. 284, 42 S. W. 867, holding grazing
cattle subject to tax; Eoff v. Kennefick-Hammond Co., 80 Ark. 143,
117 Am. St. Bep. 79, 96 S. W. 988, 7 L. B. A. (n. s.) 704, taxing rail-
road appliances brought into county by nonresidents for temporary
use; Prairie Cattle Co. v. Williamson, 5 Okl. 492, 49 Pac. 939, taxing
cattle grazing in state, though owned outside; Standard Oil Co. v.
Combs, 96 Ind. 182, 49 Am, Bep. 159, chattels remaining to receive
finishing process are taxable. See notes, 56 Am. Dec. 537; 62 Am. St.
Bep. 449, 465, 473.
57 Tex. 402-404, BABNABD ▼. TABIETOK.
Parties Whose Interests are AdTerse to appellant's should be made
parties to a writ of error.
Approved in Scarborough v, Groesbeck (Tex. Civ.), 25 S. W. 687,
appellate court has no jurisdiction of writ of error until service is
2 Tex. Notes^71
67 Tex. 405-432 NOTES ON TEXAS REPORTS. 1122
made by citation; Weems v. Watson (Tex. Civ.), 39 S. W. 136, revert-
ing where a payee of a writ of error bond was not made a party t»
the writ of error.
67 Tex. 405-408, aiBSOK ▼. HALE.
Claim Against Estate, being partly allowed and approved by judge,
bars suit for balance.
Approved in Williams v. Robinson, 63 Tex. 581, reaffirming rule;
Simmons v. Terrell, 75 Tex. 277, 12 S. W. 854, may sue for full amount
and thus establish his jurisdiction; Harte v. Castetter, 38 Neb. 574, 57
N. W. 382, party receiving benefits of decree cannot appeal.
67 Tex. 409-418, BAOOK v. BUSSEUl
Act Directing Land Oommissioner to issue certificate to particular
individual is void.
Approved in Williams v. League (Tex. Civ.), 44 S. W. 571, Ralston
V. Skerrett, 82 Tex. 488, 4&2, 17 S. W. 844, both reaffirming rule;
Cameron's Exrs. v. State (Tex. Civ.), 67 S. W. 354, 355, where act
creating county void, school land patent issued to it void even as to
bona fide purchaser; White v. Martin, 66 Tex. 342, 17 S. W. 728, hold-
ing void special act directing certificate to issue in lieu of void one;
Bates V. Bacon, 66 Tex. 348, 1 S. W. 257, vendee at execution sale
acquired on title in cited case and not what was subsequently con-
firmed; Day Land etc. Co. v. State, 68 Tex. 541, 4 8. W. 872, state not
estopped by grants of officer beyond powers.
Distinguished in State v. Houston etc. By. Co., 95 Tex. 526, 528, 529,
530, 68 S. W. 784, 785, 786, constitution of 1869 did not repeal exist-
ing laws granting lands to railroads; Holmes v. Anderson, 59 Tex,
483, legislature may direct issue of certificate in satisfaction of pre-
existing right in lieu of void certificate.
67 Tex. 41»t425, HOUSTON ETC. BT. ▼. BAKEB.
It is Presumed Tliat tlie Laws of Another State are the same as tlxose
of Texas.
Approved in Southern Pac. Co. v. Anderson, 26 Tex. Civ. 521, 6S
S. W. 1025, Blethen v. Bonner, 93 Tex. 143, 53 S. W. 1016, both re-
affirming rule; St. Louis etc. Ry. v. Taylor, 5 Tex. Civ. 671, 24 S. W.
976, nonresident father not necessary party in action by surviving
wife; Caledonia Ins. Co. v. Wenar (Tex. Civ.), 34 S. W. 388, holding
in absence of evidence showing that the same property is or is not
exempt under laws of New York, the presumption is that the New
York statute is same as Texas. See note, 67 L. R. A. 53.
Exemplary Damages are Only Becoverable for gross negligence.
Reaffirmed in Alabama etc. R. R. v. Arnold, 84 Ala. 169, 5 Am.
St. Rep. 359, 4 So. 364.
Father is not Entitled to Exemplary Damages for death of son.
Reaffirmed in Winut v. International etc. R. R., 74 Tex. 35, 11 S»
W. 908, 5 L. R. A. 172.
67 Tex. 426-432, KEITH v. HYNDMAN.
Urban Homestead Exemption is confined to lots within town limits.
Approved in Poust v. Sanger, 13 Tex. Civ. 412, 35 S. W. 405, por-
tion outside limits is no homestead. See note, 70 Am. Dec. 353.
Lots, Though not Adjacent^ are part of homestead if used as part
of home establishment.
1
f
1123 NOTES ON TAXES REPORTS. 57 Tex. 432-453
Approved in Haswell v. yorbes, 8 Tex. Civ. 86, 27 S. W. 567, ap-
plication of rent to support of family does not constitute homestead;
dissenting opinion in Smith v. Guckenheimer & Sons, 42 Fla. 49, 27
So. 904, majority holding that such portion of premiBes as are not
devoted to homestead purposes may be separated.
57 Tex. 432-437, AI.TGEI.T v. BBI8TEB.
Submisfiioii of Issue to Jury, not made by evidence, is erroneous.
Approved in Pullman Palace Car v. Fowler, 6 Tex. Civ. 762, 27 S.
W. 271, applied to charge on mental suffering in negligence case.
Ghar£:e Impliedly Assuming the truth of one of the facts is er-
roneous.
Approved in Halsey v. Bell (Tex. Civ.), 62 8. W. 1089, reaffirming
rule. See note, 72 Am. Dec. 540, 543.
57 Tex. 437-448, TIEBNET v. FBAZIEB.
Sheriff l8 not Liable for Levying Execution, regular on face, because
debtor shows receipt satisfying judgment.
Approved in Rainey v. State, 20 Tex. Ap. 470, Cleveland v. Tittle,
3 Tex. Civ. 193, 22 S. W. 9, and Wettermark v. Campbell (Tex. Civ.),.
57 S. W. 905, all reaffirming rule; Randall v. Rosenthal (Tex. Civ.), 31
S. W. 823, a sheriff is not liable for serving distress warrant valid on
its face, though the warrant failed to cite the defendant to appear.
Party Joining in Demurrer to Evidence cannot object that it was
not taken at right time.
Approved in Galveston etc. Ry. v. Templeton, 87 Tex. 46, 26 S. W.
1067, both joining in demurrer to evidence, question is for court.
57 Tex. 444-453, LEE v. STOWE.
Unresponsive Answer should be stricken out of deposition.
Reaffirmed in Pioneer Savings etc. Co. v. Peck, 20 Tex. Civ. 131, 49
S. W. 171.
Before the Revised Statutes, objection that answer in deposition
was not responsive could be made at trial; now notice must be given
before trial.
Approved in Harris v. Nations, 79 Tex. 412, 15 S. W. 263, Brown
V. Mitchell, 75 Tex. 15, 12 S. W. 607, Missouri etc. Ry. v. Ivy, 71
Tex. 417, 10 Am. St. Rep. 765, 9 S. W. 350, 1 L. R. A. 500, Wright v.
Wren (Tex. Sup.), 16 S. W. 996, and Missouri etc. Ry. v. Peay, 7 Tex.
Civ. 403, 26 S. W. 769, all reaffirming rule; New York etc. Ry. v.
Green, 90 Tex. 263, 38 8. W. 32, answer must be of benefit to pro-
pounding party.
Objecticm That Interrogatory Is Leading is one that goes to form
and manner of taking deposition.
Approved in Tevis v. Armstrong, 71 Tex. 63, 9 8. W. 136, Wade v.
Love, 69 Tex. 526, 7 S. W. 226, Mark v. Heidenheimer, 63 Tex. 306,
and Mills v. Herndon, 60 Tex. 358, all holding notice must be given;
Buford V. Bostick, 58 Tex. 68, inclining toward rule that objection
cannot be first made on trial; Hendricks v. Huffmeyer, 15 Tex. Civ. 99,
38 S. W. 526, applied to objection that question seeks to prove what
witness said never took place.
Wliere Party Refuses to Answer proper cross-interrogatories, deposi-
tion will be excluded.
Approved in Coleman v. Colgate, 69 Tex. 90, 6 S. W. 557, suppressed
for failure to produce documents.
67 Tex. 453-480 NOTES ON TEXAS EEPOETS. 1124
Wliere Quarantc^ Pays, though he could have pleaded the statute of
frauds, he maj recover from principal debtor.
Approved in Gulf etc. Ey. v. Settegast, 79 Tex. 261, 15 S. W. 229,
invalidity of contract under statute of frauds cannot be raised by
stranger thereto.
Plaintiff CKiaranteeiiig the Payment of bills upon request of a firm
can recover upon payment from the firm whether it be dissolved or
not.
Approved in Blanks v. Halfin (Tex. Civ.), 30 S. W. 944, one accept-
ing a note from one holding himself to be a partner of a dissolved
firm is chargeable with notice.
57 Tex. 45^^60, FBE8SLET ▼. BOBINBON.
Heirs of Wife are Entitled to One-half of Piopei'tJ on death of hus-
band as against second wife, but latter is entitled to homestead rights
in husband's half interest.
Approved in McBride v. Moore (Tex. Civ.), 37 S. W. 452, reaffirm-
ing rule; Putnam v. Toung, 57 Tex. 464, widow not liable for use and
occupation of her interest; Gilliam v. Null, 58 Tex. 304, homestead
may be claimed in an undivided interest; King v. Gilleland, 60 Tex.
272, children take separate property of mother free from homestead
of second wife; Hoffman v. Hoffman, 79 Tex. 193, 14 S. W. 916, allow-
ance to second wife cannot be made from first's interest in com-
munity; West V. West, 9 Tex. Civ. 479, 29 S. W. 244, second wife
entitled to the half interest; Crocker v. Crocker (Tex. Civ.), 46 S. W.
871, homestead rights of a second wife must come out of her husband's
separate estate; Crocker v. Crocker, 19 Tex. Civ. 297, 46 S. W. 871,
widow's homestead must come out of the husband's share. See notes,
4 L. E. A. (n. 8.) 797; 56 L. E. A. 46, 69, 79, 80.
Distinguished in Foreman v. Meroney, 62 Tex. 728, children cannot
enforce partition of separate property homestead of father against
second wife.
Homestead Bights of Widow are not defeated by her marriage.
Eeaffirmed in Clif t v. Kaufman, 60 Tex. 66, 70. See note, 56 L. E.
A. 70.
57 Tex. 461-465, PUTNAM ▼. T0T7NO.
Heirs of Wife are Entitled to Partition of Homeetead on death of
husband, but second wife is entitled to homestead in husband's share,
but is not liable for use and occupation of homestead so long as she
does not hold adversely.
Approved in Jergens v. Schiele, 61 Tex. 259, and West v. West,
9 Tex. Civ. 479, 29 S. W. 244, both reaffirming rule; Clift v. Kauf-
man, 60 Tex. 67, homestead allowance to widow of second marriage
must come from husband's property; Hoffman v. Hoffman, 79 Tex. 193,
14 S. W. 916, widow's allowance cannot be taken from share of chil-
dren of first marriage. See notes, 4 L. E. A. (n. s.) 798; 56 L. E. A.
46, 69, 70, 79, 80.
57 Tex. 465-480, WIIJJ8 ▼. McNEILL.
Argument of Counsel, outside issues, tending to prejudice jury, b
reversible error, though not objected to.
Approved in Franklin v. Tieman, 62 Tex. 97, reaffirming role;
Houston etc. E. Co. v. Eehm, 36 Tex. Civ. 555, 82 S. W. 528, remarks
of counsel that railroad had crippled plaintiff and then discharged him
1125 I^OTES ON TEXAS BEPOBTS. 57 Tex. 465-480
and asking for verdict large enough to teach railroad not to endanger
lives of citizens; Western etc. B. B. Co. v. Cos, 115 Oa. 719, 42 S. E.
76y where counsel stated that a railroad had no soul and that the
only way to reach it was to make it pay money; Texas etc. B. B. v.
Jarrell, 60 Tex. 270, Th« Oriental v. Barclay, 16 Tex. Civ. 211, see 41
8. W. 124, and Chicago etc. By. v. Langston, 19 Tex. Civ. 590, 48 S.
W. 614, all reversing for comment on relative wealth; Texas etc. By.
V. Garcia, 62 Tex. 289, no reversal where both parties so offended; H.
4b T. C. By. ▼. Larkin, 64 Tex. 461, refusing reversal where remarks
were not such as to prejudice jury and were withdrawn; Gulf etc. By.
V. Jones, 73 Tex. 236, 11 S. W. 187, reversing where verdict was
against preponderance of testimony; Seville v. Jones, 74 Tex. 154, 11
S. W. 1131, reversing for objectionable argument; Attaway v. Mattox,
4 Tex. Ap. Civ. 41, 14 S. W. 1017, reversible error to permit a plain-
tiff's counsel to remark in argument that plaintiff recovered a judg-
ment on former trial on the same proof; Prather v. McClelland (Tex.
Civ.), 26 S. W. 658, granting new trial for injurious remarks of coun-
sel, though they were not objected to on the trial; Gulf etc. By. v.
Scott, 7 Tex. Civ. 620, 26 S. W. 999, reversing for remarks of coun-
sel; Gulf etc. By. v. Brown, 16 Tex. Civ. 102, 40 8. W. 613, improper
argument should be objected to and pointed out; H. & T. C. By. v.
Newman, 2 Tex. Ap. Civ. 305, argument of counsel should be confined
to evidence and opposing argument; Texas etc. By. v. Pollard, 2 Tex.
Ap. Civ. 433, holding argument outside record improper; State v. Wait,
44 Kan. 323, 24 Pac. 359, reading of opinion of supreme court on facts
of another case involved is error; Missouri etc. By. v. Huggins (Tex.
Civ.), 61 S. W. 977, reversing for argument reflecting on honesty and
fair dealing of adverse party; Western Union Tel. Co. v. Burgess (Tex.
Civ.), 60 S. W. 1025, where counsel said verdict was for plaintiff on
former trial on same evidence; Halsey v. Bell (Tex. Civ.), 62 S. W.
1090, remarks reflecting on defendant's duties improper. See notes,
48 Am. Bep. 338; 9 Am. St. Bep. 560.
Distinguished in Warder v. Jacobs, 58 Ohio St. 83, 50 N. E. 98,
record not showing whether attorney was reproved, there is no re-
versaL
Exemplary Damages are Becoyerable against principal only when
malicious acts of agent are authorized or ratified.
Approved in Western Union Tel. Co. v. Brown, 58 Tex. 175, applying
rule to telegraph company; Thompson v. Bell, 11 Tex. Civ. 2, 32 S. W.
143, applied to levy of attachment; Wilkinson v. Stanley (Tex. Civ.),
43 S. W. 609, applying rule to attachment suit brought by plaintiff's
agent without his knowledge; Strauss v. Dundon (Tex. Civ.), 27 S.
W. 503, applying rule to attachment suit brought by an attorney
without client's knowledge; Tillman v. Adams, 2 Tex. Ap. Civ. 266,
applying rule and awarding exemplary damages against principal for
malicious attachment; Texas etc. By. v. Woodall, 2 Tex. Ap. Civ. 418,
awarding damage against railroad for injury to child through em-
ployee's act. See note, 68 Am. St. Bep. 275.
Where General Oharge may Mislead Jury, special charge should be
given.
Beaffirmed in Edwards ▼. Dickson, 66 Tex. 616, 2 S. W. 719.
Malice la a Mere Inference of Facta for Jury, not deducible from
want of probable cause.
Approved in Gimbel v. Gomprecht (Tex. Civ.), 36 S. W. 781, re-
affirming rule; Biering v. First Nat. Bk., 69 Tex. 602, 7 S. W. 92,
67 Tex. 481-488 NOTES ON TEXAS REPORTS. 1126
error to instruct that malice maj be inferred from want of probable
cause; Behee v. Missouri etc. Ry., 71 Tex. 430, 9 S. W.*451, without
directing attention to particular fact, jury may be instructed that
malice may be inferred from facts; Mallette v. Fort Worth Pharmacy
Co., 21 Tex. Civ. 269, 51 S. W. 860, holding instruction properly re-
fused; Tillman v. Adams, 2 Tex. Ap. Civ. 267, awarding damage for
attachment without probable cause. See notes, 81 Am. Dec. 477; 93
Am. St. Rep. 462.
Exemplary Damages Bearlzig Batlo of twelve to one to actual dam-
ages are excessive.
Approved in Flanary v. Wood, 32 Tex. Civ. 251, 73 8. W. 1072,
reducing exemplary damages from $2,344 to $500, where actual dam-
ages $56; International etc. Ry. v. Telephone etc. Co., 69 Tex. 282,
5 Am. St. Rep. 48, 5 S. W. 518, holding $10,000 exemplary to $200
actual damage, excessive; Coles v. Thompson, 7 Tex. Civ. 669, 27 8.
W. 48, refusing reversal though exemplary damages are large;
Fordyce v. Nix, 58 Ark. 141, 23 S. W. 969, holding error on instruc-
tion as to exemplary damages without prejudice; Texas Land etc.
Co. v. Nations (Tex. Civ.), 63 S. W. 916, $25 actual and $225 ex-
emplary reversed. See notes, 4 L. R.^. (n. s.) 908; 26 L. R. A. 394.
Instruction Fixing Mode of estimating damages not exceeding
dollars named in complaint is objectionable.
Approved in Texas etc. Ry. v. Wills, 2 Tex. Ap. Civ. 701, holding
such charge improper; Texas etc. Ry. v. Carr (Tex. Civ.), 42 S. W.
127, charge instructing the jury to find for plaintiff in amount pleaded
is not reversible error if other evidence supports the verdict; Creve
Coeur Lake Ice Co. v. Tamm, 90 Mo. Ap. 204, remitting damages
awarded by jury in excess of prayer.
Distinguished in San Antonio etc. Ry. v. Moore (Tex. Civ.), 39 S. W.
961, instructing the jury to give judgment to plaintiff not in excess
of sum claimed is not reversible error.
Propositions of Law should not be repeated in charge.
Reaffirmed in Moore v. State, 15 Tex. Ap. 19.
The Phraseology and Arrangement of the Charge are in the discre-
tion of the judge, so long as they conform to the law.
Approved in Missouri etc. Ry. Co. v. Parrott, 100 Tex, 12, 92 8. W.
796, term once defined, definition need not be repeated whenever term
used.
67 Tex. 481, DAVIDSON t. PATTON.
Where OItU Jnrisdiction of Oonnty Courts is vested in district
courts, appeals from justices' courts may be taken to latter.
Approved in Southern Kansas Ry. Co. v. Cooper, 96 Tex. 483, 73 S.
W. 948, reversing (Tex. Civ.), 72 S. W. 411, such cases further appeal-
able to court of civil appeals.
67 Tex. 482-488, VEAL v. P0RT80N.
Conyeyance of Minor without consideration may be avoided by his
heir.
Cited in note in 18 Am. St. Rep. 697.
Statute of Wills cannot be Evaded by deed to take effect at death.
Approved in Walker v. Nix, 25 Tex. Civ. 597, 64 S. W. 74, holding
no delivery of deed placed in trunk and grantee notified.
1127 NOTES ON TEXAS BEPORTS. 57 Tex. 489-505
Distinguished in Matthews v. Moses, 21 Tex. Civ. 497, 52 S. W.
115, upholding deed to take effect after grantee's death, as not testa-
mentary.
County Court may Settle Account of Guardian after death of ward
and order estate given to heir.
Approved in Young v. Gray, 60 Tex. 543, revision of guardian's ac-
eount, being within jurisdiction of district court, will be investigated
on appeal; Edwards v. Halbert, 64 Tex. 669, Forston v. Alford, 62 Tex.
580, both holding probate court may vacate its own orders by bill of
review; Howes v. Foote, 64 Tex. 35, on removal of probate proceeding
from county to district court, latter can determine construction of
will; Young v. Gray, 65 Tex. 101, trial court can vacate order con-
Bolidating suits.
Distinguished in Broom v. Pearson, 98 Tex. 475, 85 S. W. 792, guard-
ian's sale of lands held by ward in common will not affect cotenants,
though there are debts chargeable against whole property.
Objection That Petition of One who sues as heir does not show that
there was ne administration, and no necessity for administration, can-
not be raised by motion in arrest of judgment.
Approved in Ellis v. Howard Smith Co., 35 Tex. Civ. 567, 80 S. W.
634, defective pleading is cured by verdict.
Miscellaneous.— Kobb v. Henry (Tex. Civ.), 40 S. W. 1048, Halbert
V. Young (Tex. Sup.), 6 S. W. 748, both cases being an outgrowth of
litigation arising from the cited case, and cited historically for facts.
57 Tez. 489-491, LUMPKIN ▼. SMYTH.
Onardian must Oive Bond on Appeal in probate matters from county
to district court.
Approved in Kleinsmith v. Northcut (Tex. Civ.), 56 S. W. 558, re-
affirming rule; McMahon v. City Bank (Tex. Civ.), 61 S. W. 953,
dismissing appeal where bond not filed in time, although antedated.
Distinguished in Hudgins v. Leggett, 84 Tex. 211, 19 S. W. Z^S,
holding no appeal bond required by guardian not personally affected
under statute.
57 Tez. 491-605, IKTEBNATIONAL ETC. R. E. v. EINDBED.
Mother may Sue for Deatb of Son instantly killed.
Approved in Winnt v. International etc. R. R., 74 Tex. 36, 11 S. W.
908, 5 L. B. A. 172, Missouri etc. Ry. v. Ransom, 15 Tex. Civ. 693, 41
S. W. 828, and Missouri etc. Ry. v. Lee, 70 Tex. 503, 7 S. W. 861, all
awarding damages for death at railroad crossing; Brunswig v. White,
70 Tex. 509, 8 S. W. 88, awarding damages for negligent killing of
o.hild; Gainesville etc. Ry. v. Lacy, 86 Tex. 247, 24 S. W. 271, award-
ing damages to husband for loss of wife's services through injury;
Gulf etc. Ry. v. John, 9 Tex. Civ. 345, 29 S. W. 559, awarding dam-
ages for engineer's death through defective track; Texas etc. Ry. v.
Martin, 25 Tex. Civ. 205, 60 S. W. 804, awarding damages to married
daughter for wrongful death of father; Matz v. Chicago etc. R. R., 85
Fed. 189, holding railroad liable for instantaneous death of child
under statute of Missouri. See notes, 67 Am. Dec. 568; 70 Am. St.
Rep. 677; 5 L. R. A. 174.
In Suit by Mother for Death of Son, her pecuniary condition is
admissible to show expectation of assistance.
Approved in Sills v. Ft. Worth etc. Ry. (Tex. Civ.), 28 S. W. 909,
reaffirming rule; Winnt v. International etc. B. B., 74 Tex. 34, 11 S.
67 Tex. 505-510 NOTES ON TEXAS BEPOBTa 1128
W. 907, 5 L. B. A. 172, admitting evidence of parent's reasonable ex-
pectation of benefit from deceased son; Texas etc. By. v. Harrington,
62 Tex. 602, rejecting evidence of wife's pecuniary condition in action
for husband's death; San Antonio etc. By. v. Long (Tex. Civ.), 26 8.
W. 115, sustaining allegations of a continuance of pecuniary benefita
paid by widow to her children; Galveston etc. By. v. Bonnet (Tex.
Civ.), 38 S. W. 814, admitting testimony tending to show a reasonable
expectancy of pecuniary aid from deceased; San Antonio Traction Co.
V. White (Tex. Civ.), 60 S. W. 324, Munro v. Pacific Coast etc. Co.,
84 Cal. 526, 18 Am. St. Bep. 256, 24 Pac. 306, Hall v. Galveston etc.
By., 39 Fed. 22, and Galveston etc. By. v. Hughes, 22 Tex. Civ. 139,
54 S. W. 267, all holding parents can recover pecuniary benefit reason-
ably to be expected from deceased child; Boss v. Texas etc. By., 44
Fed. 48, holding verdict of two thousand five hundred dollars for kill-
ing five year old child not excessive. See notes, 12 Am. St. Bep. 378,
379.
Distinguished in Gulf etc. By. Co. v. Johnson, 99 Tex. 342, 90 S. W.
166, evidence that mother worked for a living inadmissible in action
by her for injuries to her son.
Testimony of '^Jolm Macke," taken by depoerition, is admissible,
though the commission issued to take the deposition of "John Mc-
Kay."
Approved in St. Louis etc. By. Co. v. Skaggs, 32 Tex. Civ. 366, 74
S. W. 785, where defendant filed cross-interrogatories, plaintiff en-
titled to commission though ^ve days not elapsed since service on
defendant; Galveston etc. By. v, Sanchez (Tex. Civ.), 65 S. W. 895,
refusing to suppress depositions of one whose name was idem sonans
with name of one for whom the eommisrsion was issued. See note, 100
Am. St. Bep. 348.
Erroneous Admission of Erldenco does not prejudice case where
same and other witnesses testified to same facts without objection.
Approved in City of San Antonio v. Potter, 31 Tex. Civ. 265, 71
8. W. 766, Galveston etc. By. Co. v. Collins, 31 Tex. Civ. 71, 71 S. W.
561, and Lindsey v. White (Tex. Civ.), 61 S. W. 440, all reafiirming
rule.
Evidence most be Wbolly Insufficient to support the verdict to jus-
tify reversal.
Approved in Missouri etc. By. Co. v. Hooten (Tex. Civ.), 84 S. W.
1096, reaffirming rule; Boss v. Texas etc. By., 44 Fed. 45, cause de-
pending on effect of testimony is for determination of jury.
Jury, In Rendering Damages, may consider the relationship and sur*
roundings of the injured parties.
Approved in International etc. By. v. McNeel (Tex. Civ.), 29 S. W.
1134, following rule; Cole v. Parker, 27 Tex. Civ. 566, 66 S. W. 137,
refusing to charge jury to find what "present cash payment" would
compensate parents for actual pecuniary loss from death of son; Gal-
veston etc. By. Co. v. Power (Tex. Civ.), 54 S. W. 629, measure of
damages for death of an adult son rests on the will and ability of the
child to confer benefit on the parent.
57 Tex. 505-^10, MISSOUBI ETC. BT. ▼. LYDE.
Master is Iiiable only for want of ordinary care in inspection of ap-
pliances.
Approved in Eddy v. Adams (Tex. Sup.), 18 S. W. 490, Galveston
«tc. By. V. Goodwin (Tex. Civ.), 26 S. W. 1007, both reaffirming rule;
1129 NOTES ON TEXAS BEPOBTS. 57 Tex. 511-518
Migsouri etc. By. v. Kirkland, 11 Tex. Civ. 534, 32 S. W. 591, Little
Bock etc. By. v. Leverett, 48 Ark. 346, 3 Am. St. Bep. 238, 3 S. W.
54, and International etc. By. v. Bell; 75 Tex. 53, 12 S. W. 321, all
applying rule in action for injury to switchman caught in track;
Atchison etc. B. B. ▼. Wagner, 33 Kan. 666, 7 Pac. 208, Texas etc.
By. V. Huffman, 83 Tex. 290, 18 S. W. 742, both applying rule in ac-
tion by brakeman injured while coupling carsr; Galveston etc. By. v.
Daniels, 1 Tex. Civ. 698, 20 S. W. 956, applying rule in action for
death of brakeman through coUapae of bridge. See note, 12 L. B. A.
343.
Jury Should not be Instructed as to items of damage not proved.
Approved in Belton v. Lockett (Tex. Civ.), 57 S. W. 687, and
Trinity etc. By. v. O'Brien, 18 Tex. Civ. 693, 46 S. W. 391, both fol-
lowing rule; Gulf etc. By. Co. v. Johnson, 99 Tex. 342, 90 S. W. 166,
evidence of mother's poverty not admissible in her action for injuries
to her son; Northern Texas Traction Co. v. Jamison, 38 Tex. Civ. 57,
85 S. W. 305, error to instruct jury to consider expenses for medicines
where no evidence of such expenses; Howard Oil Co. v. Davis, 76 Tex.
634, 13 S. W. 666, impaired capacity to labor may be shown as ele-
ment of damage; Galveston etc. By. v. Silegman (Tex. Civ.), 23 S. W.
300, error to submit an issue raised by the pleadings, but unsupported
by evidence; Missouri etc. By. v. Hannig, 91 Tex. .349, 43 S. W. 509,
rejecting evidence of plaintiff's marriage and wife's poverty. See
note, 67 Am. Dee. 567.
57 Tex. 511-614, HAOOOD v. ATKTN.
In Suit on Note, judgment for principal and interest bears rate of
interest fixed in note.
Approved in Washington v. First Nat. Bank, 64 Tex. 7, allowing
stipulated interest on entire judgment, including attorney's fees.
Article 2980, Bevlsed Statutes, means that a judgment shall bear
the same rate of interes.t as the contract upon which it is founded,
provided the rate was legal when contracted for.
Followed in Williams v. National Park Bank (Tex. Civ.), 26 S. W.
172.
67 Ter. 514-616, WISE ▼. OLD.
Landlord Waives Lien on Property Distrained by taking personal
judgment without foreclosure.
Approved in Bond v. Carter (Tex, Civ.), 73 S. W. 46, and Haymes
V. Gray, 2 Tex. Ap. Civ. 193, both following rule.
67 Tex. 616-618, THOMAS v. THOMAS.
Appeal cannot be Abandoned and writ of error sued out returnable
at subsequent term for mere delay.
Distinguished in Texas etc. By. v. Hare, 4 Tex. Civ. 21, 23 S. W.
43, Eppstein v. Holmes, 64 Tex. 564, both holding party may aban-
don imperfect appeal, and prosecute writ of error.
A Citation In Error failing to conform to the statutory requirements
is defective.
Approved in Crane v. Hogan (Tex, Sup.), 7 S. W. 58, a citation in
error should substantially comply with the statute; Schonfield v.
Turner (Tex. Sup,), 6 S. W. 630, a citation in error is fatally defec-
tive which fails to show any judgment to be revised.
57 Tex. 518-534 NOTES ON TEXAS KEPOETS. 1130
Where Citation is not Served, writ of error is dismissed.
Approved in Yarnell v. Burnett, 25 Tex. Civ. 27, 61 S. W. 153, dis-
missing writ of error for failure to serve citation on defendant.
57 Tex. 518-624, WEIGHT ▼. HEFFNEB.
Ezecntor has Vendor's Lien for purchase money.
Approved in Jolly v. Stallings, 78 Tex. 607, 14 S. W. 1003, reaffirm-
ing rule; Hicks v. Morris, 57 Tex. 661, Warhmund v. Merritt, 60
Tex. 27, both holding party advancing purchase money subrogated to
vendor's lien under agreement.
57 Tex. 524-534, FLEMING ▼. SEELIGSON.
Frand Does not Render Judgment Void, but voidable.
Approved in Stewart v. Bobbins, 27 Tex. Civ. 193, 65 S. W. 902, re-
affirming rule; Odle v. Frost, 59 Tex. 687, holding judgment not col-
laterally attackabl-e where jurisdiction appears on record; Rutherford
V. Stamper, 60 Tex. 450, holding probate sale not collaterally attack-
able for purchase by administrator; Williams v. Haynes, 77 Tex. 284,
19 Am. St. Rep. 753, 13 S. W. 1030, Maddox v. Summerlin, 92 Tex.
486, 49 S. W. 1034, Irwin v. Bexar Co., 26 Tex. Civ. 530, 63 S. W.
552, and Mikeska v. Blum, 63 Tex. 47, all holding fraudulent judgment
not collaterally attackable by evidence outside record.
Where One Party Becomes Insane, and another dies pending suit,
judgment is voidable only.
Approved in Campbell v. Upson (Tex. Civ.), 81 S. W. 359, when
party dies pending suit, judgment without citing heirs and represen-
tatives not void. See notes, 29 Am. St. Rep. 816; 49 L. R. A. 160,
161, 173; 39 L. R. A. 775.
Distinguished in Jones Lumber Co. v. Rhoades, 17 Tex. Civ. 673,
41 S. W. 106, holding judgment against party dead at commencement
of suit void.
Suit to Set Aside Voidable Judgment must be brought within two
years from rendition or removal of disability.
Approved in Johnston v. Sharpe (Tex. Civ.), 34 S. W. 1010, apply-
ing rule to suit brought five years after judgment by a party to the
original action; De Camp v. Bates (Tex. Civ.), 37 S. W. 645, holding
judgment will not be reopened six years afterward where no showing
is mad« for failure to make an earlier application; McCray v. Free-
man, 17 Tex. Civ. 274, 43 S. W. 39, refusing to reform judgment after
ten years' delay; Miller v. Miller, 21 Tex. Civ. 384, 53 S. W. 363,
minors can bring bill to review guardianship proceeding within two
years after reaching majority. See note, 39 L. R. A. 783.
Distinguished in McLane v. San Antonio Nat. Bank (Tex. Civ.),
68 S. W. 65, under Revised Statutes of 1879, suit to reform judgment
must be brought within four years.
Third Party Having Direct Interest in subject matter may inter-
vene.
Approved in Jeff Davis Co. v. City National Bank, 22 Tex. Civ. 160,
54 S. W. 40, in suit against parent county, other counties also liable
may be made parties; Wolf v. Butler, 81 Tex. 93, 16 S. W. 796, hold-
ing lis pendens purchaser entitled to intervene, not bound by fraudu-
lent collusive judgment.
Distinguished in Holloway v. Blum, 60 Tex. 629, holding guarantor
of immunity to retiring partner not proper party to suit against part-
ner on firm debt.
1131 NOTES ON TEXAS REPORTS. 57 Tex. 534-568
Parttes Properly Before Court must take notice of petition in in-
tervention filed by leave of court, though at time of intervention and
judgment one of defendants was dead, he having answered.
See note, 123 Am. St. Rep. 300.
57 Tez. 534-655, STATE v. INTEBNATIONAL ETC. B. B.
A Subsequent Statute which, as to the erubject matter of the pre-
vious one, creates a new system respecting it, will be held to repeal it
by implication.
Approved in Spence v. Brown (Tex. Civ.), 24 S. W. 310, reaffirming
rule; Drake v. State (Tex. Civ.), 23 S. W. 621, applying rule to a
statute passed forbidding a minor to be drunk on the premises of
liquor dealer.
57 Tex. 655-564, PACE ▼. SMITH.
Properly in Cufltody of Law is not subject to garnishment.
Approved in Leroux v. Baldus (Tex. Sup.), 13 S. W. 1020, reaffirm-
ing rule; Allen v. Gerard, 21 R. I. 470, 79 Am. St. Rep. 816, 44 Atl.
593, 49 L. R. A. 351, applying rule to proceeds of attached perishable
property; Loftus v. Williams, 24 Tex. Civ. 394, 59 S. W. 292, Curtis
V. Ford, 78 Tex. 268, 14 S. W. 615, 10 L. R. A. 529, both holding money
deposited with clerk after sale of sequestered property not garnish-
able; Kreisle v. Campbell, 89 Tex. 106, 33 S. W. 853, holding funds in
receiver's hands not garnishable; Richardson v. AnderKon, 4 Tex. Ap.
Civ. 494, 18 S. W. 196, holding money taken by sheriff from prisoner
not garnishable; Weeks v. Galveston Gas Co., 22 Tex. Civ. 246, 54
S. W. 620, holding decedent's property not garnishable; Allen v.
Gerard, 21 R. I. 470, 79 Am. St. Rep. 819, 44 Atl. 593, 49 L. R. A.
351, holding proceeds of attachment sale in clerk's hands not garnish-
able. See note, 13 L. B. A. (n s.) 760.
67 Tez. 564-568, MABTIK v. BOBEBTS.
Party, not Signing Written Contract, is bound if he accepts it.
Approved in Campbell v. McFadin, 71 Tex. 32, 9 S. W. 139, enforc-
ing contract to locate land, although not signed by all parties; Tins-
ley V. Miles (Tex. Civ.), 26 S. W. 1000, holding one accepting a deed
ia bound to pay for it; Warner etc. Mfg. Co. v. Houston (Tex. Civ.),
28 8. W. 407, a written proposition and an acceptance by telegraph
constitutes a written contract; Page v. Conaway (Tex. Civ.), 34 S. W.
144, an obligation founded upon a contract in writing is as binding
on the one who accepts it as upon the one who makes it; Pioneer Sav-
ings Co. V. Peschall, 12 Tex. Civ. 615, 34 S. W. 1002, upholding build-
ing contract signed by only one party; Kearby v. Hopkins, 14 Tex.
Civ. 184, 36 S. W. 515, holding agreement for extension of note made
by letter valid; Slayden v. Stone, 19 Tex. Civ. 619, 47 S. W. 748, up-
holding employment contract signed by employee and accepted by em-
ployer.
Where Contract Beservee Mechanic's Iiien, it may be construed a«
reserving express lien, independently of statutory mechanic's lien.
Approved in Lippencott v. York, 86 Tex. 283, 24 S. W. 278, enforc-
ing mechanic's lien on homestead given by contract.
Distinguished in Taylor v. Huck, 65 Tex. 241, holding mechanic'a
lien cannot be created on homestead by contract.
Arguendo in Warner etc. Mfg. Co. v. Houston (Tex. Civ.), 28 S. ^^.
411, holding mechanic's lien need not be verified before recording
except where it is sought to fix it against a homestead.
67 Tex. 569-589 NOTES ON TEXAS BEP0BT8. 1132
67 Tex. 669-672, WALTEE ▼. WEAVES.
Certiflcate of Acknowledgment jof Married Woman is eonelasive im
faTor of grantee in good faith and for valuable consideration.
Approved in Herring v. Whi^e, 6 Tex. Civ. 251, 25 S. W. 1017,
Hagan v. Conn (Tex. Civ.), 40 S. W. 20, Wheelock v. Cairtt, 91 Tex.
682, 66 Am. St. Bep. 923, 45 S. W. 797, all affirming rule; Webb v.
Bumey, 70 Tex. 325, 7 S. W. 843, applying rule to deed to homestead
duly acknowledged; Albany Co. Sav. Bank v. McCarty, 149 N. Y.
80, 43 N. £. 430, holding acknowledgment rebuttable only by strong
proof.
Married Woman Selecting Interpreter for making acknowledgment
cannot claim he did not interpret correctly or was corrupt.
Approved in Taylor v. Noel (Tenn. Ch.), 59 S. W. 378, holding ac-
knowledgment conclusive made through interpreter.
67 Tex. 572-^75, TOMUNSOK ▼. HOPKINS COUNTY.
Fees of Surveyor of Donated School Iiands are fixed by statute, and
transfer of one-third of land to him will be canceled.
Approved in- San Augustine County v. Madden, 39 Tex. Civ. 261,
263, 87 S. W. 1056, 1057, and Logan v. Stephens County (Tex. Civ.),
81 S. W. 110, both reaffirming rule; Dallas County v. Club Land A
Cattle Co., 95 Tex. 206, 207, 66 S. W. 296, affirming Club Land etc.
Co. V. Dallas Co., 26 Tex. Civ. 453, 454, 64 S. W. 875, part of school
land cannot be given as compensation for subdividing it and putting
it on market; Cameron's Exrs. v. State (Tex. Civ.), 67 S. W. 354,
donation is to counties in trust for school purposes; Slaughter v.
Mallet Land etc. Co., 141 Fed. 293, contract to pay commissions for
selling school land out of price thereof void; Pulliam v. Bunnels Co.,
79 Tex. 369, 15 S. W. 279, applying rule under statutes; Cassin v. La
Selle Co., 1 Tex. Civ. 130, 21 8. W. 124, holding sale of school land
on consideration of location void; Club Land etc. Co. v. Dallas Co.,
26 Tex. Civ. 453, 454, 64 S. W. 875, holding conveyance of school for
surveying tracts voidable.
Where Goonty Asks for Belief, claim of defendant need not be
presented for allowance.
Approved in Club Land etc. Co. v. Dallas Co., 26 Tex. Civ. 456,
64 S. W. 876, county must pay for surveying school lands without
presentation of claim, after cancellation of voidable deed for portion.
•
67 Tex. 576-681, HEFNEB -V. DOWNINO.
Agreement as to Boundary Line is implied from long acquiescence,
as against purchaser relying thereon.
Approved in Davia v. Smith, 61 Tex. 24, applying rule and enforc-
ing acquiesced boundary; Bohny v. Petty, 81 Tex. 529, 17 S. W. 82,
effect of acquiescence in establishing boundary is for jury; New York
etc. Land Co. v. Gardner (Tex. Civ.), 25 S. W. 738, one misleading a
third party by his acts cannot assert a different state of facts against
such party.
67 Tex. 682-589, HABDIN ▼. ABBET.
Party Desiring to Appeal from Decifdon without jury should request
written findings of fact and law, and specify errors therein.
Approved in Harvey v. Ogilvie, 66 Tex. 186, 18 8. W. 448, Kidd v.
Dugan, 2 Tex. Ap. Civ. 44, and Douglas v. Duncan, 66 Tex. 123, 18
1133 NOTES ON TEXAS BEPOBTS. 57 Tex. 589-«i4
8. W. 343, all refusing to consider general assignment in absence of
findings.
Appellate Court will Consider onlj fundamental errors where the
assignment of errors is too general.
Approved in McCord v. HoUoman (Tex. Civ.), 46 B. W. 115, re-
versing where a fundamental error is apparent in the charge, though
not assigned as error in lower court.
67 Tez. 589-602, BOUTH ▼. BOUTH.
Marriage XSstabllshes Community Interest in property, regardless
of the equality of contribution or expenditure.
Approved in Cervantes v. Cervantes (Tex. Civ.), 76 S. W. 792,
abandoned wife cannot acquire title to husband'e lands by adverse
possession; Morgan v. Morgan, 1 Tex. Civ. 318, 21 S. W. 165, holding
woman marrying man after his void divorce entitled to share of prop-
erty acquired during their coverture.
Incident of Community Blghta only attaches to a lawful marriage.
Approved in Chapman v. Chapman, 11 Tex. Civ. 395, 32 8. W. 565,
holding marriage of undivorced man confers no property rights on
second wife. See notes, 68 Am. 8t. Bep. 376, 379.
Distinguished in Barkley v. Dumke, 99 Tex. 153, 87 8. W. 1148,
putative marriage removes wife'0 disability as minor; Lawson v. Law-
son, 30 Tex. Civ. 49, 69 8. W. 248, putative wife entitled to share as
partner in property acquired by joint efforts.
57 Tez. 602-603, GABBISOK ▼. OBAKT.
When Wife Owns Homestead, husband cannot pre-empt homestead
on public land.
Distinguished in Baker v. Burroughs, 2 Tex. Civ. 340, 21 8. W.
296, homesteader may settle on school lands and acquire prior right
to purchase.
67 Tez. 604-614, YETTEB ▼. HXTD80M'.
Whether Agreement is for Stipulated Damages or penalty depends
on intent of parties, ascertained from terms.
Approved in Santa Fe St. Ry. Co. v. Schutz, 37 Tex. Civ. 23, 83
8. W. 44, consideration paid street railway for building in front of
property, returnable ae liquidated damages on suspension of opera-
tion; Bucker v. Campbell, 35 Tex. Civ. 180, 79 8. W. 628, damages
fixed in contract for engaging in business within named limits in
violation thereof, liquidated; Merica v. Burget, 36 Ind. Ap. 463, 75
N. E. 1087, upholding forfeiture of $1,000 for breach of agreement not
to engage in banking business, as liquidated damages; Halff v.
O'Connor, 14 Tex. Civ. 198, 37 8. W. 242, Shelton t. Jackson, 20 Tex.
Civ. 445, 49 8. W. 416, and Eakin v. Scott, 70 Tex. 445, 7 8. W. 778,
all enforcing payment of liquidated damages for failure to deliver
cattle; Wright v. Dobie, 3 Tex. Civ. 196, 22 S. W. 67, holding jury
must determine whether forfeiture wa« liquidated damages or penalty ;
Sturgis Nat. Bank v. Smith, 9 Tex. Civ. 542, 30 8. W. 678, enforcing
payment of attorney's fees stipulated in note; State v. Williams, 10
Tex, Civ. 349, 30 8. W. 478, holding action on liquor dealer's bond
one on contract, and not for penalty; Gulf etc. By. v. Ward C*r©x.
Civ.), 34 8. W. 329, parties to a contract may agree upon a sum to 'b^
paid as liquidated damages. See note, 108 Am. St. Bep. 63.
57 Tex. 614-627 NOTES ON TEXAS REPORTS. 1131
"Wlietlier It is Fooliflh or not for Parties to contract to pay liqui-
dated damages is of no consequence, for the contract must govern if
the intention be clear.
Approved in Feesman v. Seeley (Tex. Civ.), 30 S. W. 269, both
parties must abide by the sum agreed as ertipulated damages; Jack-
son V. Martin (Tex. Civ.), 41 S. W. 839, no error to exclude all other
damages than the sum agreed upon as liquidated damages; Talkin
V. Anderson (Tex. Sup.), 19 S. W. 853, holding liquidated damages
should be paid when conditions arose as agreed upon; Wright v.
Meyer (Tex. Civ.), 25 S. W. 1124, holding plaintiff liable for delay
in completing a building as agreed when the delay was not caused
by any act of defendant.
67 Tez. 614-618, McDONAIJ> v. CAMPBELL.
Bnilding cm Disconnected Lot used for storing goods sold in busi-
ness is not part of homestead.
Approved in Willis v. Pounds, 6 Tex. Civ. 515, 25 S. W. 716, apply-
ing rule; Ayers v. Shackey, 2 Posey, 275, where family left homestead
and removed dwelling and erected stores on lot, homestead abandoned;
Hinzie v. Moody, 1 Tex. Civ. 31, 20 S. W. 770, applying rule to
warehouse across street; Willis v. Morris, 66 Tex. 634, 1 S. W. 803,
holding exemption of business location ceases on abandonment of
trade; Evans v. Pace, 21 Tex. Civ. 369, 51 S. W. 1094, holding house
adjoining mill not part of business homestead; Woeltz v. Woeltz
(Tex. Civ.), 57 S. W. 907, holding disconnected land not part of busi-
Yiess homestead. See note, 70 Am. Dec. 353.
Distinguished in Clift v. Kaufman, 60 Tex. 65, holding store of
decedent exempt as homestead; Hargadene v. Whitfield, 71 Tex. 489,
9 S. W. 479, holding enlargement of business homestead exempt;
Stark V. Ingram, 2 Posey U. C. 637, upholding homestead in premises
used in connection with business.
67 Tez. 618-621, HALGOMB ▼. KELLY.
Execution of Justice of Peace not restrained for error in decision,
where certiorari is not prosecuted, though negligence or other remedy
exists.
Cited in notes in 54 Am. St. Rep. 226; 32 L. R. A.. 327; 30 L. R. A.
703.
67 Tez. 621^27, FREEMAN ▼. BCAHONEY.
Discrepancy of Two Hundred and Forty Varas, where line is five
thousand, is not conclusive as to contiguity of claims.
Approved in Booker v. Hart, 77 Tex. 153, 12 S. W. 19, holding in-
considerable excess no vacancy where limits are determinable.
Mistaken Gall for Line of Older Survey, unmarked or undefined,
does not prevail over call for course and distance from established
corner.
Approved in Gregg v. Hill, 82 Tex. 409, 17 S. W. 840, establishing
survey by course and distance from one eetablished line.
Distinguished in Bennett v. Latham, 18 Tex. Civ. 407, 45 S. W.
036, calls for course and distance in junior survey yield to call for
lines of senior adjoining surveys on either side if calls for course and
distance would carry intersecting lines beyond lines of senior survey
as fixed by own field-notes.
1135 NOTES ON TEXAS REPORTS. 57 Tex. 627-644
Claimant of Land Between Grants, many years after survey,
"where original surveyor made oath they were contiguous, must clearly
show the contrary, and mere variance in areas of grants is not suffi-
cient.
Approved in Moore v. Stewart (Tex. Sup.), 7 S. W. 775, reaffirming
rule; Worthington v. Baughman, 84 Tex. 484, 19 S. W. 772, Graham
r. Dewees, 85 Tex. 400, 20 S. W. 128, King v. Mitchell, 1 Tex. Civ.
704, 21 S. W. 51, Williams v. Beckhan, 6 Tex. Civ. 744, 26 S. W.
654, and Standlee v. Burkitt, 78 Tex. 620, 14 S. W. 1042, all holding
no vacancy by excess where adjacent surveys call for common line.
Miscellaneous. — Cited in Matthews v. Thatcher, 33 Tex. Civ. 138,
140, 76 S. W. 64, 66, reversible error for counsel to read passage from
cited case as to "ripping up of old land titles."
57 Tez. 627>635, EDBINGTOK ▼. NEWLAND.
"Wliere, ContemporaneouBly With an Absolute Deed, grantee therein
executes an instrument binding himself to reconvey on repayment of
the purchase price, the absolute deed is but a mortgage.
Approved in Morris v. Housley (Tex. Civ.), 34 S. W. 659, Pratt v.
Godwin, 61 Tex. 334, both applying rule; Brooks v. Young, 60 Tex.
36, admitting parol to show reservation of vendor's lien under absolute
deed; Stephens v. Mott, 82 Tex. 87, 18 S. W. 100, holding vendor
retaining lien cannot maintain trespass to try title.
Distinguished in Downs v. Farmers' Loan etc. Co., 79 Fed. 219,
rule not applicable where railroad, during foreclosure proceedings,
was in hands of receivers appointed by virtue of the proceedings.
Wife is not Necessary or proper party in suit for damages for
sequestration of community property.
Approved in Middlebrook v. Zapp, 73 Tex. 31, 10 S. W. 733, re-
fusing recovery in such action brought in wife's name for seizure of
her partnership interest; Wartelsky v. McGee, 10 Tex. Civ. 222, 30
S. W. 70, action on liquor dealer's bond cannot be maintained by
wife.
Distinguished in Galveston etc. By. Co. v. Baumgarten, 31 Tex. Civ.
257, 72 S. W. 80, question of wife's misjoinder in suit by husband
for personal injuries to her cannot be first raised on appeal.
67 Tex. 635-644, N0BBI8 v. WACO.
Wliat Lands shall be Embraced in municipality, and whether same
•hall be taxed, is a political question not reviewable by courts.
Approved in Kettle v. City of Dallas, 35 Tex. Civ. 638, 80 S. W.
877, upholding law authorizing taxation districts for street improve-
ments; Miller v. County Commissioners, 107 Md. 442, 69 Atl. 119,
upholding tax on mortgage interest confined to certain counties;
Mabry v. Cox, 73 Tex. 541, 11 S. W. 542, holding land included in
extension subject to municipal indebtedness; Woolverton v. Albany,
152 Ind. 78, 52 N. E. 455, dismissing action to disannex part of
municipality's territory. See notes, 34 L. B. A. 195; 27 L. B. A. 740;
25 L. B. A. 755.
Distinguished in Ewing v. State, 81 Tex. 177, 16 S. W. 874, holding
legality of town extension by citizens judicial question.
"Equal and Uniform" means that all persons shall be taxed same
for same property in same situation, irrespective of benefit.
Approved in Adair v. Bobinson, 6 Tex. Civ. 277, 25 S. W. 735,
enforcing tax on national bank stock without reduction of amount
67 Tex. 644-665 NOTES ON TEXAS BEPOBTS. 1136
invefftedin United States bonds; Kellej ▼. Bhoads, 7 Wjo. 269, 75
Am. St. Bep. 922, 51 Pac. 601, 39 L. B. A. 594, holding Ux on* live-
stock brought into state for grazing valid; "Wbod v. Qoimby, 20 B. I.
491, 40 Atl. 165, upholding tax for fire district. See notes, 4 L. B. A.
809; 1 L. B. A. 758.
OonstltatioiLal Provlsioii Prohibiting Taking of Property without
compensation refers solely to eminent domain.
Approved in Kimball v. Grantsville City, 19 Utah, 382, 57 Pae. 4,
45 L. B. A. 628, provision requiring compensation on public taking of
property no restriction on taxing power. See note, 8 Am. St. Bep.
510.
G7 Tez. 644-649, WBIGHT ▼. BIJ^OXWOOD.
Woman, Permanently Seiwrated from Husband, may give power of
attorney without his signature.
Approved in Bennett v. Montgomery, 3 Tex. Civ. 225, 22 S. W. 116,
holding wife's deed to separate property executed five yeara after
abandonment of husband valid; Fermier v. Brannan, 21 Tex. Civ. 548,
53 S. W. 702, upholding wife's mortgage of community estate after
abandonment by husband. See notes, 84 Am. St. Bep. 765, 769; 83
Am. St. Bep. 517.
67 Teoc 649-^5, 8T0BET ▼. FLAKAGAK.
Power XJnder Which Ancient Deed was executed may be presumed.
Approved in Beuter v. Stuckart, 181 HI. 541, 54 N. E. 1018, uphold-
ing ancient deed executed by attorney without proof of power of
attorney.
67 Tecr. 655-668, JODOK ▼. BBENHAM.
Lien for Taxation Attaches only to separate tract taxed, and not
to property of taxpayer generally.
Approved in Kerr v. Corsicana (Tex. Civ.), 35 S. W. 697, reversing
where the court charged that adjoining lots belonging to the same
owner may be assessed in bulk; Gifford v. Callaway, 8 Colo. Ap. 364,
46 Pac. 628, holding tax lien on personalty subject to prior encum-
brance, without statutory declaration of superiority; Guerguin v. San
Antonio, 19 Tex. Civ. 100, 50 S. W. 141, holding two lots belonging to
same owner assessable together.
Distinguished in Cooper Grocery Co. ▼. City of Waco, 30 Tex.* Civ.
625, 71 S. W. 620, if property not homestead, rendition for taxation
by owner need not give block and lot number.
57 Tex. 658-665, HIOKS ▼. MOBBIS.
Becitala in Note are open to contradiction by parol.
Approved in Boren v. Boren, 29 Tex. Civ. 222, 68 8. W. 184, parol
evidence admissible to correct mistake in mortgage as to amount of
debt and to show consideration of mortgage to be plaintiff's surety-
ship on note; Brooks v. Young, 60 Tex. 35, admitting parol explana-
tion of lien reserved in deed; Busby v. Bush, 79 Tex. 661, 15 S. W.
640, admitting parol to identify land dcErcribed in lien notes; Ban-
dolph V. Junker, 1 Tex. Civ. 522, 21 S. W. 563, admitting parol testi-
mony that deed was settlement of interest in mother's estate; Bio
Grande By. v. Armendiaz, 5 Tex. Civ. 453, 23 S. W. 569, admitting
parol explanation of recital of transfer of interest in mortgage; Seay
1137 NOTES ON TEXAS BEPOBTS. 57 Tex. 658-665
T. Fenoell, 15 T«x. Civ. 265, 39 S. W. 183, admitting parol explanation
of good faith in reeerving vendor's lien.
Distinguished in Willard v. Cleveland, 14 Tex. Civ. 559, 38 8. W.
223, rejecting parol identifieation of land described in petition where
deed was procurable.
One "Wlio Pays Off Encumbrances on homestead on agreement to
give him mortgage is subrogated to rights of creditor.
Approved in Flynt v. Taylor, 100 Tex, 63, 93 S. W. 424, Johnston ▼.
Arrendale, 30 Tex. Civ. 509, 71 S. W. 47, Whiteselle v. Texas Loan
Agency (Tex. Civ.), 27 S. W. 314, Land Mortgage Bank v. Quanah
Hotel Co. (Tex. Civ.), 32 S. W. 577, Clark v. Burke (Tex. Civ.), 39
S. W. 308, Henry v. Bounds (Tex. Civ.), 46 S. W. 122, and Lennox
V. Sanders (Tex. Civ.), 54 S. W. 1077, all following rule; Dillon v.
Kauffman, 58 Tex. 706, holding party paying debt subrogated to
creditor's rights under trust deed; Joiner v. Perkins, 59 Tex. 302, 303,
holding vendor's lien unaffected by substitution of purchase money
note; Eylar v. Eylar, 60 Tex. 322, holding party discharging lien
against homestead subrogated to rights of lienholder; Investors' Mort-
gage etc. Co. V. Loyd, 11 Tex. Civ. 454, 33 S. W. 753, Morris v.
Geisecke, 60 Tex. 635, both holding husband can alienate homestead
in settlement of lien for purchase money; Lippencott v. York, 86 Tex.
283, 24 S. W. 278, enforcing express mechanic's lien on homestead in
favor of assignee thereof; Dixon v. National Loan etc. Co. (Tex. Civ.),
40 S. W. 544, subrogating a loan company to the rights of the holder
of a promissory note when the holder of the note obtained the money
from the loan company to take up the note; Henson v. Beed, 71 Tex.
728, 10 S. W. 523, Texas Land etc. Co. v. Blalock, 76 Tex. 90, 13
S. W. 14, Pridgen v. Warn, 79 Tex. 594, 15 S. W. 561, Ford v. Ford,
22 Tex. Civ. 455, 54 S. W. 774, and Wahrmund v. Merritt, 60 Tex.
27, all holding party paying purchase money notes subrogated id
vendor's lien; Neese v. Biley, 77 Tex. 351, 14 S. W. 66, indorsee of
purchase money note can enforce vendor's lien and recover stipulated
attorney's fees; Garret v. McClain, 18 Tex. Civ. 249, 44 8. W. 49,
party discharging vendor's lien has prior right to land; Park ▼.
Kribs, 24 Tex. Civ. 659, 60 8. W. 911, Mustain v. Stokes, 90 Tex.
362, 38 S. W. 760, both enforcing mortgage on homestead given to
secure payee of vendor's lien thereon; Hirshfeld v. Howard (Tex.
Civ.),. 59 S. W. 59, holding wife paying mortgage of community
property subrogated to mortgagee's rights; Western Mortgage etc.
Co. V. Ganzer, 63 Fed. 652, McCarty v. Brackenridge, 1 Tex. Civ. 180,
20 S. W. 1001, both enforcing vendor's lien on homestead in favor
of party advancing purchase money; Bachal v. Smith, 101 Fed. 166,
holding party advancing money to pay mortgage subrogated to mort-
gagee's rights; Baker v. Collins, 4 Tex. Civ. 524, 23 S. W. 495, husband
may mortgage homestead in renewal of vendor's lien notes; Gray v.
Cockrell, 20 Tex. Civ. 329, 49 S. W. 250, administrator paying debts
of the estate with his own property is entitled to reimbursement. See
notes, 99 Am. Dec. 574, 575; 45 Am. St. Bep. 385, 386; 99 Am. St.
Bep. 489; 86 Am. St. Bep. 177, 179, 181.
Distinguished in Cason v. Connor, 83 Tex. 30, 18 S. W. 670, holding
no subrogation until entire debt is paid to creditor; Kallman v. Lude-
necker, 9 Tex. Civ. 184, 28 S. W. 579, holding no subrogation to person
discharging lien on homestead, not given for purchase price.
2 Tex. Note6--72
57 Tex. 665-680 NOTES ON TEXAS REPORTS. 1138
Agreement to OiTe Mortgage is treated in equity as a mortgage.
Approved in Brooks v. Toung, 60 Tex. 36, affirming rule and en-
forcing lien.
57 Tex. 666-670, DE CAUSSEY v. BAILY. '
Partnership Creditors cannot Interpose in disposition of firm assets
in absence of insolvency.
Approved in Johnston v. Standard Shoe Co., 5 Tex. Civ. 399, 400,
24 S. W. 581, holding mortgage of assets of insolvent firm by one
member to secure individual debts void. See note, 29 L. R. A. 684.
Petition Need not Contain Prayer for writ of attachment.
Cited in note, in 79 Am. Dec. 173. •
67 Tex. 670-^74, GBOTHAUS ▼. DE LOPEZ.
Widow may Sell Her Share of Community Homestead though there
are minor children, and purchaser becomes tenant in common of
children.
Approved in Barrett v. Eastham, 28 Tex. Civ. 190, 67 S. W. 199,
where husband alone mortgaged homestead, foreclosure after wife's
death binds her heirs though not parties; Shannon v. Gray, 59 Tex.
252, holding children have no rights in homestead sold under trust
deed executed by husband and wife; Ashe v. Yungst, 65 Tex. 636,
holding children inherit homestead as other real property; dissenting
opinion in Zwernemann v. Von Rosenberg, 76 Tex. 529, 13 S. W. 48S,
majority holding homestead descends to widow and children as other
property. See note, 56 L. R. A. 69, 72, 73.
Thongh Petition in Trespass to Try Title claims whole tract, judg
ment may be rendered for undivided half.
Approved in Akinson v. Ward, 2 Posey U. C. 236, awarding re-
covery of interest in land to one joint owner.
57 Tex. 674-680, SHBYOCK ▼. LATIMEB.
House or Business, though not on contiguous lots, is homestead so
long as used for purposes contemplated by statute.
Approved in Ford v. Fosgard (Tex. Civ.), 25 S. W. 448, reaffirming
rule; Scheuber v. Ballow, 64 Tex. 168, holding lapse of eight days
after cessation of business no abandonment of homestead; Willis v.
Morris, 66 Tex. 634, 1 S. W. 803, Oppenheimer v. Fritter, 79 Tex.
103, 14 S. W. 1052, Duncan v. Alexander, 83 Tex. 445, 18 S. W. 819,
Hull V. Naumberg, 1 Tex. Civ. 137, 20 S. W. 1126, and Wynne v.
Hudson, 66 Tex. 10, 17 S. W. 113, all holding business homestead
ceases after abandonment of business, and renting of premises; Har-
gadene v. Whitfield, 71 Tex. 490, 9 S. W. 479, business homestead
exemption continues from cessation of one business and beginning
another; Pfeiffer v. McNatt, 74 Tex. 642, 12 S. W. 822, holding ex-
emption lost on part of business homestead rented after failure;
Van Slyke v. Barrett (Tex. Sup.), 16 S. W. 903, one-fourth owners
of a building used for renting cannot homestead their interest in
the building; Houston v. Newsome, 82 Tex. 80, 17 S. W. 605, holding
business homestead abandoned by lease of premises, although desk
room reserved; Hill v. Hill, 85 Tex. 104, 19 S. W. 1017, holding home-
stead ceased after burning of shop and abandonment of business;
Scott V. Parks (Tex. Civ.), 29 S. W. 218, sale under execution devests
proprietors of the title to their place of business after abandonment;
Brennan v. Fuller, 14 Tex. Civ. 511, 37 S. W. 642, holding premises
1139 NOTES ON TEXAS BEPOETS. 57 Tex. 674-680
occupied hj owner as postmaster exempt; Freeman v. Gates, 22 Tex.
Civ. 626, 55 S. W. 525, holding storehouse used in connection with
boarding-house exempt; Alexander v. Lovitt (Tex. Civ.), 56 S. W.
686, one who has no calling which requires a place of business, and
does not use property for his business, cannot homestead the prop-
erty; Warren v. Kohr, 26 Tex. Civ. 336, 337, 64 S. W. 65, holding home-
stead abandoned by lease and engaging in other business; Webb v.
Hayner, 49 Fed. 604, affirming rule and enjoining execution sale of
homestead; Semple v. Schwarz, 130 Mo. Ap. 76, 109 8. W. 637, cove-
nant that land shall not be "used or occupied for trade or business
of any kind whatever" prohibits physician's office; dissenting opinion
in Smith v. Guckeuheimer & Sons, 42 Fla. 49, 27 So. 904, majority
holding that portion of premises not devoted to homestead purposes
may be separated. See note, 60 Am. Dec. 612.
Distinguished in Clift v. Kaufman, 60 Tex. 67, 68, holding business
homestead not devested when so used until death of owner.
Temporary Beating does not destroy homestead.
Approved in Bowman v. Watson, 66 Tex. 297, 1 S. W. 273, holding
business homestead not abandoned by its lease; Malone v. Koro-
rumpf, 84 Tex. 459, 461, 19 S. W. 608, 609, holding homestead not
lost by renting store, on account of owner's ill-health.
Distinguished in Cooper Grocery Co. v. Peter, 35 Tex. Civ. 50, 80
S. W. 108, upholding business homestead of one who sold mercantile
business but retained office in building; Duncan v. Ferguson-McKin-
ney Dry Goods Co., 150 Fed. 273, leasing for one year with privilege
of removal for four years, bankrupt retaining desk room and storage
space, did not constitute abandonment.
Oonveyance ftom Husband to Wife for money borrowed, good
against judgment creditor.
See note, 90 Am. St. Rep. 540.
The Law Does not Protect a Man in a place of business which he is
neither using nor preparing to use.
Approved in Alexander v. Lovitt, 95 Tex. 664, 69 S. W. 69, apply-
ing rule where homesteader made lease with covenant not to re-en-
gage in business during term thereof, and simply kept safe on prem-
ises; In re Flannagan, 117 Fed. 697, where place of business aban-
doned with intention to return only on compromising with creditors.
Miscellaneous. — Cited in Beickler v. Guenther, 121 Iowa| 421, 96
N. W. 896, as to meaning of term "engaging in business.'*
NOTES
ONTHB
TEXAS EEPOETS
GASES IN 68 TEXAS.
58 TtOL 1-4, SMITH ▼. 8HIMN.
AnMllaat cannot Oomplain of AdmisBlon in eridence of patent on
ground of variance in name in petition and patent, where he was not
misled bj it.
Approved in First Nat. Bank v. Stephenson, 82 Tex. 436, 18 S. W.
583, difference of one day between note pleaded and one proved is
not a material variance; Pelican Ins. Co. v. Schwartz (Tex. Sup.),
19 S. W. 375, holding that variance between stock of goods and stock
of merchandise is not material; Kmeger v. Klinger, 10 Tex. Civ. 581,
30 S. W. 1089, petition alleging note payable in a county without
designating place is immaterial; Heath v. First Nat. Bank (Tex. Civ.),
32 S. W. 780, one holding legal title cannot maintain action to re-
move cloud upon the title caused by an unlawful levy; Hunstock v.
Boberts (Tex. Civ.), 55 S. W. 514, admitting an execution sale dated
March 17th, while the execution pleaded was dated March 9th; Cook
V. Carroll etc. Cattle Co. (Tex. Civ.), 39 S. W. 1010, admission of
family history by witness where basis of knowledge is partially in-
competent is harmless where it is merely cumulative.
Bvldence of Son Oonceming Bemarks made by his father tending
to identify him as a patentee is inadmissible.
Approved in Davidson v. Wallingford (Tex. Civ.), 30 S. W. 288,
evidence by wife that husband often spoke of owning land certifi-
cates is inadmissible; Hill v. Smith, 6 Tex. Civ. 317, 25 S. W. 1080,
error to allow witness to testify to conversation had with plaintiff.
Overruled in Byers v. Wallace, 87 Tex. 512, 28 S. W. 1060, admit-
ting letter written by cousin concerning whereabouts of decedent;
Minor v. Lumpkin (Tex. Civ.), 29 S. W. 800 (on rehearing), to iden-
tify grantee in bounty warrant, his son may testify to that part of
his father's diary showing his participation in the war for which
the warrant was issued; Minor v. Lumpkin (Tex. Civ.), 29 S. W.
801, reaffirming rule on first hearing, but holding same as preceding
case of same name on rehearing; Bed Biver Cattle Co. v. Wallace
(Tex. Civ.), 33 S. W. 301, allowing proof of lost letter regarding
identity of soldier killed at Goliad, written previous to the massacre.
Distinguished in Byers v. Wallace (Tex. Civ.), 25 S. W. 1047,
(1141)
58 Tex. 4-22 NOTES ON TEXAS REPORTS. 1142
holding rule not applicable where testimony set forth in statement
of facts conflicts with recitals of it in bill of exceptions.
58 Tex. 4-6, SPEKCEB ▼. BOSENTHAUi.
Wife cannot Enjoin Sale of Her Separate Property not claimed as
homestead, upon execution, against the husband.
Approved in Chamberlain v. Baker, 28 Tex. Civ. 501, 67 8. W. 534,
denying injunction against sale under execution against plaintiff's
vendor; Mann v. Wallis, 75 Tex. 613, 12 S. W. 1124, owner cannot
enjoin sale under execution when not a party to execution; Kennard
v. Mabry, 78 Tex. 158, 14 S. W. 275, judgment creditor cannot en-
join sale under trust deed; Hinzie v. Kempner, 82 Tex. 621, 18 S. W.
661, intervener, whose title is excepted by trust, cannot enjoin sale
under trust; Wofford v. Booker, 10 Tex. Civ. 174, 30 S. W. 68, plain-
tiff can enjoin sale under execution which threatens to dispossess him.
See note, 30 L. B. A. 112.
68 Tex. 6-10, TUBNEB ▼. FEBaXJSON.
Defendant, Wlthont Negligence in remaining ignoraht of the facts,
is not estopped by a promise made without consideration and in
ignorance of his rights.
Approved in Hammers v. Hanrick, 69 Tex. 415, 7 S. W. 349, plain-
tiff cannot plead estoppel to acts caused by his own fraud; Texar-
kana Nat. Bank v. Hall (Tex. Civ.), 30 S. W. 74, property purchased
by onerous title during marital relation and conveyed by deed to the
wife is presumed to be community property.
Mere Temporary Occupancy does not make one an actual settler.
Approved in Busk v. Lowrie, 86 Tex. 131, 23 S. W. 984, going upon
land and working for a half day is not actual serttlement; Gardner
V. Burkhart, 4 Tex. Civ. 593, 23 S. W. 710, pre-emptor filing upon
additional adjoining land is actual settler thereon; Jones v. Hart
(Tex. Civ.), 25 S. W. 704, a temporary renter is not an actual settler;
Jordan v. Payne, 18 Tex. Civ. 383, 45 S. W. 190, appellee, only mak-
ing a small inclosure upon land, is not an actual settler.
58 Tex. 11-22, CONNOLY ▼. HAMMOND.
Statute of Limitatloii is not Suspended by a former action from
which judgment plaintiff does not appeal but brings a second suit.
Approved in Flanagan v. Pearson, 61 Tex. 303, purchaser of land
in controversy in a voluntarily abandoned suit is not barred by
statute; Harrison v. McMurray, 71 Tex. 127, 8 S. W. 614, nondis-
missal of suit by representatives of plaintiff does not stop running
of statute.
Plaintiff cannot Present Bar of Statate of Limitation on ground
of fraud when it was not concealed and no diligence was made to
find it.
Approved in Missouri etc. By. Co. v. Smith, 28 Tex. Civ. 568, 68
S. W. 544, where plaintiff sought to avoid bar by asserting fraudu-
lent promise of employment, employment having been denied for
three and one-half years; Texas etc. Ry. v. Gay, 86 Tex. 608, 26 S. W,
614, 25 L. B. A. 52, concealing a cause of action against plaintiff stops
statute running against plaintiff. See notes, 60 Am. Dec. 513; 55 Am.
St. Bep. 516, 519.
Plaintiff Obtaining a New Title after institution of suit of trespass
to try title may amend his pleadings or institute a separate action.
1143 NOTES ON TEXAS EEPORTS. 58 Tex. 23-27
Approved in Chicago etc. Ry. Co. v. Groner, 100 Tex. 416, 100 S. W.
138, when amendment sets up new cause of action, defendant's ap-
plication for continuance is to be considered as first application;
Sogers V. Southern etc. Lumber Co. (Tex. Civ.), 51 S. W. 31, one
acquiring title pending his suit and not pleading it is not concluded
by the judgment and may bring a new ^uit upon this title; Rogers
V. Southern Pine Lumber Co., 21 Tex. Civ. 57, 51 S. W. 31, title
acquired by plaintiff during pendency of suit not barred by judg-
ment.
Miscellaneous. — Stell v. Lewis, 2 Posey U. C. 533, cited to the point
that notes secured by vendor's lien should be paid without preference.
68 Tex. 23-27, 8LAVEK ▼. WHEELER.
Judge is Disqnalified Where He Advised as to matters in dispute
which subsequently became basis of a cause of action before him.
Reaffirmed in Clack v. Taylor Co., 3 Tex. Ap. Civ. 247.
Approved in Graham v. State, 43 Tex. Cr. 113, 63 S. W. 560, judge
disqualified where he interviewed defendant, talked with relatives
and attended conference of attorneys, though he received no fee;
Barnes v. State, 47 Tex. Cr. 463, 83 S. W. 1125, judge disqualified to
try defendant for assault on wife, where he was attorney for her in
divorce suit based on same conduct; Burks v. Bennett, 62 Tex. 279,
judge is disqualified when he is a creditor of estate; Kahanek v.
Galveston etc. Ry., 72 Tex. 477, 10 S. W. 571, judge disqualified whero
his property is injured by one of the parties to suit; Hobbs v. Camp-
bell, 79 Tex. 362, 15 S. W. 282, -gudge disqualified in action against
surety where he discovered invalidity of bond; Cullin v. Drane, 82
Tex. 485, 18 S. W. 591, no disqualification where judge had never
expressed an opinion on disputed matter; State v. Burks, 82 Tex. 586,
18 S. W. 663, judge disqualified in quo warranto where he prepared
field-notes in incorporation of town; Johnson v. State, 29 Tex. Ap.
527, 16 S. W. 418, judge disqualified if he prosecuted defendant in
lower court; Lee v. Heuman, 10 Tex. Civ. 667, 32 S. W. 94, mere
casual opinions are not sufficient to disqualify judge; Tampa St! Ry.
V. Tampa Sub. R. R., 30 Fla. 598, 607, 11 So. 562, 565, judge dis-
qualified where he advised company concerning legality of its fran-
chise; State V. Hocker, 34 Fla. 30, 15 So. 583, judge disqualified to
pass upon claim growing out of suit where he was counsel; Harrison
V. Lokey, 26 Tex. Civ. 406, 63 S. W. 1031, judge disqualified where he
was attorney in another suit on claim now presented. See note, 25
L. R. A. 115.
Distinguished in City of Austin v. Cahill, 99 Tex. 201, 89 S. W.
552, judge not disqualified where both parties and matters in dispute
different; Locklin v. State (Tex. Cr.), 75 S. W. 310, judge not dis-
qualified because as illegally appointed district attorney he presented
case against accomplice to grand jury; Stevens v. Hall, 8 Idaho, 55i),
69 Pac. 284, judge not disqualified from sitting in suit to revive judg-
ment where he was attorney in original action.
Unverified Statement by Jndge concerning his connection with a
ease is not admissible in determining issue of his disqualification.
Approved in Kahanek v. Galveston etc. Ry., 72 Tex. 478, 10 S. W.
571, unsworn statement of judge regarding his disqualification will
not be heard; Fort Worth etc. Ry. v. Mackney, 83 Tex. 421, 18 S. W.
953, unsworn statement of judge not considered; Gaines v. State, 38
Tex. Cr. 215, 42 S. W. 389, unverified statement of judge will not
58 Tex. 27-45 NOTES ON TEXAS EEPOBTS. 1144
rebut allegations of petition as to disqualification; Morris ▼. State,
65 Tex. 61, no error where statement of judge referring to disquali-
fication is admitted without objection.
Written Statement Belating to Facts before trial made by judg»
as explanatory of exceptions to his rulings should not be considered
on appeal.
Approved in Abrams v. State, 31 Tex. Cr. 451, 20 S. W. 988, state-
ment of judge in explanation in the bill of exceptions cannot be con-
sidered.
58 Tex. 27-45, TEXAS ETC. R. R. Y. CDONNEUi.
Eailioad is Liable for Injury to infant minor caused by the wautt
of proper watchfulness of its agent.
Approved in Missouri etc. By. Oo. v. Hammer, 34 Tex. Civ. 358, 78^
S. W. 710, Douglas v. Central Texas etc. By. (Tex. Civ.), 26 S. W.
893, Gulf etc. By. v. Cunningham (Tex. Civ.), 30 S. W. 368, and St.
Louis etc. By. v. Shifflet (Tex. Civ.), 56 S. W. 698, all reaffirming^
rule; Chicago etc. B. B. v. Grablin, 38 Neb. 102, 56 N. W. 799, re-
fusing to charge finding for defendant for negligence of injured boy;
Louisville etc. B. B. v. Lohges, 6 Ind. Ap. 291, 33 N. E. 450, arguendo.
See note, 25 L. B. A. 290, 785.
Distinguished in Williams v. T. & P. B. B., 60 Tex. 207, company
not liable where (Thlld was killed jumping from platform to moving
train. See note, 14 Am. St. Bep. 592.
Negligence of Mother cannot be imputed to infant plaintiff when,
she has used reasonable precaution to guard against danger.
Approved in Houston etc. By. v. Dillon, 3 Tex. Civ. 306, 22 S. W.
1067, company liable where parents took precautions for safety of
child; San Antonio etc. By. v. Vaughn, 5 Tex. Civ. 200, 23 S. W.
748, holding company liable where injured child was nineteen months
old; Texas etc. By. v. Beckworth (Tex. Civ.), 32 S. W. 810, negli-
gence in not procuring medical aid cannot be imputed to child of
tender years, bringing suit for its own benefit. See note, 55 L. B. A.
460.
Distinguished in (Jalveston etc. By. Co. v. Byon, 70 Tex. 58, 7 S.
W. 689, railroad not liable for failure of servants operating train to
discover position of one going on track under circumstances rendering
him guilty of negligence.
Defendant cannot Complain of Mere Defect in court's charge; rem-
edy is to ask for special instructions.
Approved in Galveston etc. By. Co. v. Paschall, 41 Tex. Civ. 364,.
92 S. W. 449, one not satisfied with insufficient definition of proximate
cause should request special instruction; Missouri etc. By. Co. v.
Hay, 39 Tex. Civ. 53, 86 S. W. 956, where court failed to limit re-
covery to expenses from injuries complained of; Silberberg v. Pear-
son, 75 Tex. 290, 12 S. W. 851, defendants cannot complain of insuffi-
cient charge when not asking for special charge; Texas etc. By. v.
Morin, 66 Tex. 228, 18 S. W. 504, reversing where jury eonsidered
other things not in evidence under the charge.
Where Verdict is not Clearly Wrong, supreme court will not reverse
it because it is excessive or because there is evidence to another con-
clusion.
Approved in International etc. B. B. v. Bonatz (Tex. Civ.), 48 S. W.
769, reaffirming rule; Gulf etc. By. v. Pettis, 69 Tex. 694, 7 S. W. 98,.
no reversal where sufficient evidence to justify finding; Gulf etc By*
1145 NOTES ON TEXAS EEPOKTS. 58 Tex. 46-63
▼. Silliphant, 70 Tex. 632, 8 S. W. 676, exceesive damages rendered
not sufficient to show prejudice of jury.
58 Tex. 46-53, GRIFFITH ▼. MOSBISON.
Where Vendor Sells Ooods and accepts promissory notes for ymr^
chase money, the transaction is a eonditlonal sale.
Approved in Sinker v. Comparet, 62 Tex. 474, vendor stipulating
not to pass title till paid is a conditional sale; City Nat. Bank v.
Tufts, 63 Tex. 115, 117, applying rule where vendor took promissory
notes for purchase money. See note, 94 Am. St. Eep. 238.
Becording of a Oliattel Mortgage in county of mortgagor's residence
is sufficient notice to subsequent purchasers though property is re-
moved to another county.
Approved in Greer, Mills & Co. v. Crenshaw (Tex. Civ.), 76 S. W.
589, assignees of unweaned and unbranded calves take subject to
chattel mortgage; Dunn v. Elser, 2 Tex. Ap. Civ. 632, 633, possession
by vendee of goods sold conditionally not sufficient to pass tit1«;
Vickers v. Carnahan, 4 Tex. Civ. 308, 23 S. W. 340, applying rule
to chattel mortgage of hay-press subsequently removed.
Power to Sell does not authorize barter.
See note, 94 Am. St. Bep. 229; 10 L. B. A. (n. s.) 1118.
58 Tez. 63-56, POBTEB ▼. OHBONISTEB.
HeiiB of Mother Inherit Her Interest in community property ac-
quired by husband after her death by reason of their settlement as
colonists.
Beaffirmed in Budd v. Johnson, 60 Tex. 94. Approved in Manchaca
V. Field, 62 Tex. 139, license issued to husband and wife to purchase
property is community property. See notes, 126 Am. St. Bep. 119;
96 Am. St. Bep. 919; 17 L. B. A. (n. s.) 154.
Distinguished in Welder v. Lambert, 91 Tex. 524, 44 S. W. 285,
lands purchased after marriage under license issued before marriage
are separate estate.
Party Seeking Benefit of Five Y^^'^'b' Limitation must show that
all deeds under which he claims have been recorded.
Beaffirmed in Medlin v. Wilkins, 60 Tex. 418, and Fryer v. Meyers
(Tex. Sup.), 13 S. W. 1027. Approved in Gaflford v. Foster, 36 Tex.
Civ. 57, 81 S. W. 63, where title acquired under tax deed, time did
not run until registration thereof; McLavy v. Jones, 31 Tex. Civ.
357, 72 S. W. 408, possession may be tacked if every deed is regis-
tered; Logan V. Bobertson (Tex. Civ.), 83 S. W. 400, where deed not
recorded, defendant cannot avail himself of record and possesrsion
of vendor; Cook v. Dennis, 61 Tex. 249, applying rule where posses-
sor claiming title seeks application of statute; Van Sickle v. Catlett,
75 Tex. 409, 13 S. W. 32, no error to charge limitation would not run
till party seeking it recorded deed; Sorley v. Matlock, 79 Tex. 306, 15
S. W, 262, defendant cannot plead statute where he does not hold
under recorded deeds for five years; Gillum v. Fuqua (Tex. Civ.),
61 S. W. 939, vendees cannot claim benefit of statute where vendor
fails to record deeds.
68 Tex. 67-63, BAUi Y. BBITTON.
Where Partnership Agreement Fixes No Time for duration of part-
nership, the measure of damages for wrongful dissolution, where com-
plaining partner only furnished labor and skill, is value of labor and
skill in operation of business.
58 Tex. 63-74 NOTES ON TEXAS EEP0RT8. 1146
Approved in Sewell v. Connor (Tex. Civ.), 23 8. W. 556, following
rule; Kelley Island Lime etc. Co. v. Masterson, 100 Tex. 43, 93 S. W.
430, partnership where one contributes money and another services
for agreed share of profits; Henry v. McCardell, 15 Tex. Civ. 501,
40 S. W. 174, profits cannot be estimated where no partnership was
formed, and where business failed. See note, 53 L. E. A. 83.
Where Amended Petition contains all substantial allegations ot
original petition, and also count for exemplary damages, it does not
state new cause of action.
Approved in Western Union Tel. Co. v. Brown, 62 Tex. 540, amend-
ment to petition averring same facts does not set up new cause.
68 Tex. 63-71, BUFOBD ▼. BOSTICK.
Certificate of Land Officer Giving conclusion of officer, and stating
what has not been done in office, is not admissible under Revised
Statutes, article 2253.
Approved in Bacon v. State, 2 Tex. Civ. 712, 21 S. W. 154, error to
admit certificate of land office that surveys had not been returned;
Fisher v. Ullman, 3 Tex. Civ. 324, 22 S. W. 523, certificate of land
office stating a certificate was void should be excluded; Hamilton
V. McAuley, 27 Tex. Civ. 258, 65 S. W. 206, a certificate from the
commissioner of the land office stating his opinion is not evidence
of title.
Objection to Question in Deposition should be taken and filed at
time of cross-interrogatories.
Approved in Mark v. Heidenheimer, 63 Tex. 306, reaffirming rule;
Wade V. Love, 69 Tex. 526, 7 S. W. 226, overruling objection to an-
swer of leading question in deposition; Wright v. Wren (Tex. Sup.),
16 S. W. 996, objections to answers in a deposition must be made
before trial.
Under Paschal*s Digest, article 5303, unperfected pre-emption claim
is not such title, or color of title as will support limitation in suit of
trespass to try title.
Approved in Clark v. Smith, 59 Tex. 279, preemptor cannot claim
limitation to land already held under patent; Hanrick v. Dodd, 62
Tex. 90, no error to admit pre-emption papers of appellee over ob-
jection of appellant; Jones v. Andrews, 72 Tex. 14, 9 S. W. 172,
pre-emptor cannot plead statute under his claim; McCown v. Mt:-
(^afferty, 14 Tex. Civ. 78, 36 S. W. 518, defendant cannot plead limi-
tation where he has no title; Besson v. Richards, 24 Tex. Civ. 67, 58
S. W. 613, holding school land purchaser has no title till three vears^
occupancy. See notes, 76 Am. St. Rep. 484; 15 L. R. A. (n. s.) 1223.
58 Tex. 71-74, TAYLOB v. McNUTT.
Court Should Instruct Jury concerning the correct construction
of an instrument depending upon extrinsic facts connected with its
rxecution.
Approved in Moss v. Helsley, 60 Tex. 438, applying rule to willi»;
Heidenheimer v. Cleveland (Tex. Sup.), 17 S. W. 528, error for court
to instruct that a contract is void when it is ambiguous on its face*
Smith V. Covenant etc. Assn., 16 Tex. Civ. 615, 43 S. W. 829, holding
no error to submit question whether letter countermanded former
order. See note, 69 Am. Dec. 459.
Distinguished in Bradword v. Malone, 33 Tex. Civ. 351, 77 S. W.
23, whether deed absolute on its face is intended as mortgage is
question for jury.
1147 NOTES ON TEXAS REPORTS. 58 Tex. 74-85
58 Tex. 74-77, INTERNATIONAL ETC. ».».▼. SMITH COUNTY.
Judgment not Disposing of Case as to all parties is not such final
judgment from which an appeal would lie.
Approved in Darnell v. Lyon, 85 Tex. 465, 22 8. W. 308, Master-
son V. Williams (Tex. Sup.), 11 S. W. 531, Burrows v. Cox (Tex.
Civ.), 38 S. W. 50, all reaffirming rule; Stewart v. Lenoir, 31 Tex.
Civ. 470, 72 S. W. 619, where case continued as to one defendant,
judgment against other not final; Thomas v. Hawpe, 25 Tex. Civ.
536, 62 8. W. 786, order overruling demurrer and not adjudicatin)^
any issue is not appealable j Bradford v. Taylor, 64 Tex. 171, judg-
ment making no disposition of defendant brought in by amendment
is not final; Mignon v. Brinson, 74 Tex. 20, 11 S. W. 904, judgment
for all plaintiffs except one, and making no disposition as to him, is
not final; Missouri etc. Ry. v. Scott, 78 Tex. 361, 14 S. W. 792, ap-
plying rule where no disposition was made of receivers. See note,
60 Am. Dec. 433.
Miscellaneous. — Missouri etc. By. v. Walden (Tex. Civ.), 46 S. W.
89, cited to the point that counsel cannot comment upon facts not
in evidence.
58 Tex. 77-80, HAIB ▼. WOOD.
Conveyances Set Aside by a Jndgment must be considered as void
for all purposes and as to all persons.
Approved in Moss v. Helsley, 60 Tex. 433, holding will declared
invalid the same as if no will existed.
Purchaser Pendente Lite of Property in Litigation need not be
made party to suit, but he is nevertheless bound by judgment against
vendor.
Approved in Evans v. Beevers, 6 Tex. Civ. 258, 26 S. W. 220, pur-
chaser of cause of action after suit is not a necessary party; Bush
V. Manghum, 14 Tex. Civ. 628, 37 S. W. 461, holding suit should
continue in name of vendor; Ahlers v. Thomas, 24 Nev. 409, 77 Am.
St. Rep. 822, 56 Pac. 94, courts can enjoin one not acquiring rights
from defendants.
Where Husband Conveyed Community homestead without wife's
consent, and she, suing as head of family, recovered same after his
death, children could recover half interest from purchaser of whole
from wife.
See note, 56 L. R. A. 37, 46, 73.
58 Tex. 80-85, 44 Am. Bep. 601, GBEEN Y. RAYMOND.
Printing Press, Type, Cases, etc., belong to trade of publisher, and
are exempt under Paschal's Digest, volume 2, article 5487.
Approved in Nichols v. Porter, 7 Tex. Civ. 305, 26 S. W. 860, tools
of one engaged in several occupations are exempt; Betz v. Maier,
12 Tex. Civ. 220, 33 S. W. 711, including business of insurance
agent within statute; Fore v. Cooper (Tex. Civ.), 34 S. W. 342, chairs,
mirrors, and tables used by a barber are exempt. See notes, 20 Am.
St. Rep. 313; 123 Am. St. Rep. 148.
Surviving Wife Qualifying as Survivor of community has samo
powers as administrator acting under order of court.
Approved in Withrow v. Adams, 4 Tex. Civ. 445, 23 S. W. 439,
reaffirming rule.
A Wife Qualifying as survivor of community and exhausting
community assets before the presentation of a claim of whose exis-
58 Tex. 8^98 NOTES ON TEXAS BEPOBTS. 1148
tence she was not informed, is not responsible for a pro rata pay-
ment of such claim.
Approved in Ballard v. Murpby (Tex. Ap.), 15 8. W. 43, creditor
cannot sue upon his claim against a decedent when he failed to pre-
sent it for approval to the executor; Ballard y. Murphy, 4 Tex. Ap.
Civ. 243, 15 8. W. 43, creditor cannot sue on claim which was not
presented; Evans v. Taylor, 60 Tex. 425, holding surviving wife ro-
sponsible for claim promptly presented.
58 Tez. 86-88, BELLNLAN ▼. HABDIN.
Where Both Parties Claim Title from common source, holder of
older title may recover though he file abstract of title reaching to
sovereignty of soil, but failed to establish that title by proof.
Approved in Zapeda v. Hoffman, 31 Tex. Civ. 315, 72 8. W. 445,
where boundaries in deed conflict with older survey, there must be
actual possession under junior title; Collins v. Davidson, 6 Tex. Civ.
80, 24 S. W. 861, applying rule to purchase from state land board;
Smith V. Davis, 18 Tex. Civ. 567, 47 8. W. 103, applying rule to title
specially set out in the pleadings; Cox y. Hart, 145 IT. 8. 386, 12 Sup.
Ct. Bep. 966, 36 L. 746, applying rule where plaintiff claimed under
marshal's deed. See note, 47 Am. St. Bep. 75.
Sheriff's Deed Offered in Evidence by party claiming adversely
is sufficient evidence of common source, without introducing judg-
ment and execution.
Approved in Bums v. Goff, 79 Tex. 239, 14 8. W. 1010, sheriff's
deed sufficient evidence of title frpm common source.
Building of Hog-pens is not sufficient to establish claim of adverse
possession.
Approved in Fuentis v. McDonald, 85 Tex. 136, 20 S. W. 44,
grazing livestock upon land not sufficient possession to maintain
adverse possession; Vineyards v. Brundrett, 17 Tex. Civ. 151, 42
S. W. 234, holding grazing of cattle not sufficient to maintain ad-
verse possession.
68 Tex. 88-92, PETEBSOK ▼. KILaOBB.
Becordlng of Deed After Death of Orantee is not sufficient evi-
dence that deed was delivered to grantee.
Approved in Heintz v. O'Donnell, 17 Tex. Civ. 26, see 42 S. W.
799, deed coming from heirs of grantor is not conclusive evidence
of execution.
68 Tez. 92-96, BEBO8TB0EM ▼. 8TAT&
Estate of a Sorety on a Joint Undertaking is liable on it the same
as if it had been joint and several.
Approved in Glasscock v. Hamilton, 62 Tex. 150, estate of a surety
on a joint and several bond cannot plead death of surety as defense;
Boyd v. Bell, 69 Tex. 738, 7 8. W. 658, estate of surety is liable where
surety derived benefit of obligation; Allen v. Stovall, 94 Tex. 627,
63 8. W. 865, holding heirs of surety liable where guardian's bond
was given before repeal of statute.
58 Tex. 96-98, NIX ▼. DUKES.
Comitromlse and Dismissal of 8nlt brought by one creditor for
benefit of all is not binding on intervening creditors.
Approved in Cook v. Pollard, 70 Tex. 726, 8 8. W. 514, holding
all creditors to be affected by decree should be made parties.
1149 NOTES ON TEXAS REPORTS. 68 Tex. 98-124
58 Tez. 98-111, HOUSTON ETC. BT. ▼. BUST.
A Ballroad Company, as a Oommon Carrier, is required to treat
the public with equality and fairness, but may make reasonable
and just discriminations.
Approved in Kelly y. Chicago etc. By., 93 Iowa, 451, 61 N. W. 962,
free rate cannot be considered in determining a reasonable rate;
Western Union Tel. Co. v. Call Publishing Co., 44 Neb. 338, 48 Am.
St. Rep. 737, 62 N. W. 510, 27 L. R. A. 622, no discrimination in rate,
where performance of service renders such.
"Wlietlier DiBcrimination by a Bailroad is lawful or not is deter-
mined by applying facts to the law.
Approved in Little Rock etc. Ry. v. Oppenheimer, 64 Ark. 281,
43 S. W. 153, 44 L. R. A. 353, discrimination is question for jury.
See notes, 60 Am. Deo. 150; 44 Am. Rep. 568; 11 Am. St. Rep. 647,
648.
Distinguished in Bonner v. Franklin etc. Assn., 4 Tez. Civ. 167, 23
S. W. 318, under the statute, where the road was operated by re-
ceivers.
68 Tez. 111-115, BATTLE ▼. OUEDBT.
Sale is Invalid Under an Execution reciting judgment against one,
where the judgment rendered is against another.
Approved in Haskins t. Wallet, 63 Tex. 219, deed under execution
is not void where judgment recited is same as one rendered. See
note, 101 Am. St. Rep. 559.
Execution will be Treated as Valid where there is variance be-
tween-writ and judgment unless variance is too apparent.
Approved in Cleveland v. Simpson, 79 Tex. 97, 13 S. W. 852, deed
under execution not authorized by judgment is void; Morris v.
Balkham, 75 Tex. 113, 16 Am. St. Rep. 875, 12 8. W. 971, sheriflPs
deed is void where there is variance in name of judgment debtor;
Williams v. Thomas, 18 Tex. Civ. 474, 44 S. W. 1074, tax deed is not
valid where variance in names of survey.
68 Tex. 115-124, WATEBS ▼. SFOFFOBD.
Under Act of May 12, 1846, a certificate of 'acknowledgment of
deed taken before any officer must be authenticated by his seal.
Approved in Wilson v. Simpson, 80 Tex. 284, 16 S. W. 41, objection
will not lie to indorsement of clerk without seal when not so re-
quired.
Becord of Deed Made in 1856 is valid by force of validating acts
though acknowledgment before county clerk in 1838 be not authen-
ticated by his seal.
Approved in Riviere v. Wilkens, 31 Tex. Civ. 457, 72 S. W. 610.
reaffirming rule; Parriott v. Incorporated City of Hampton, 134 Iowa,
163, 111 N. W. 442, absence of notarial seal to acknowledgment
cured by validating act; McCelvey v. Cryer, 8 Tex. Civ. 440, 28
S. W. 691, deed executed before a notary before passage of validat-
ing statutes is admissible.
A Tax Deed Which Does not Give Such Description of the land
conveyed thereby as will identify it is invalid.
Approved in Crumbley v. Busse, 11 Tex. Civ. 323, 32 S. W. 441, tax
deed referring to a numerical abstract without further description is
insufficient; Bowles v. Beal, 60 Tex. 324, assignee's description in
referring to description in sherifiTs deed is sufficient; Dupree v.
58 Tex. 125-134 NOTES ON TEXAS BEPORTS. 1150
Frank (Tex. Civ.), 39 S. W. 994, sustaining validity of probate
records which describe lands as those belonging to "Valentine Hol-
maun" instead of "Valentine Holman"; Jackson v. Finlay (Tex.
Civ.)y 40 S. W. 429, a judgment issued for a greater amount than
was due is not void; dissenting opinion in Eustis v. Henrietta (Tex.
Civ.), 37 S. W. 636, majority holding an assessment is not void be-
cause of lack of accurate description when it accords with the de-
scription handed in by the owner; Lambeth v. Watson, 60 Tex. 480,
in suit to quiet title, plaintiff cannot avail himself of clerical mis-
take of sheriff in describing the land as the property of "T. B. W.,"
whereas it was that of "D. B. W."
68 Tex. 125-130, BLXTM ▼. WETTEBMABK.
District Court has Jurisdiction over its own judgment during the
term, and is not devested of this jurisdiction by perfected appeal.
Approved in Hume v. John B. Hood etc. Veterans (Tex. Civ.), 69
S. W. 643, applying rule where court set aside order granting new
trial; Testard v. Brooks (Tex. Civ.), 70 8. W. 240, such jurisdiction
not devested by taking appeal; Churchill v. Martin, 65 Tex. 368, dis-
trict court can modify its judgment after appeal, but i\ot enforce it;
Sharp V. Elliott, 70 Tex. 669, 8 8. W. 490, motion to vacate decree in
subsequent term will not be entertained; Mitchell v. Mitchell, 84
Tex. 306, 19 S. W. 478, allowing wife to amend pleading bringing in
a defendant after voluntarily dismissing as to him; Metcalf v. State,
21 Tex. Ap. 174, 17 S. W. 142, applying rule to change of judgment
in misdemeanor case; Carlton v. Miller, 2 Tex. Civ. 624, 21 S. W. 699,
court can reinstate a case after dismissal at same term; Bartley v.
Conn, 4 Tex. Civ. 300, 23 S. W. 383, no error for court to set aside
order by another made at same term; Gallagher v. Finlay, 2 Tex.
Ap. Civ. 548, lower court has no jurisdiction of appeal perfected
after adjournment for term; Chattanooga B. B. v. Jackson, 86 Ga.
684, 13 S. E. Ill, jurisdiction of case is not suspended on dismissal
of appeal. Beaffirmed in Garza v. Baker, 58 Tex. 488; Ellis v.
Harrison (Tex. Civ.), 56 S. W. 592; Curtis v. Bernstein, 2 Tex. Ap.
Civ. 593. See note, 23 Am. St. Bep. 104.
Distinguished in Grisham v. State, 19 Tex. Ap. 512, criminal court
cannot modify judgment where defendant has suffered some pun-
ishment under judgment.
58 Tex. 130-134, GBEENWOOD ▼. PIEBCE.
Representations of Agent of Railway made in sale of lots in depot
town as to future location of road, when made as inducements to
purchaser of lot to contract therefor, become, when acted on in mak-
ing purchase, assurances which company is bound to comply with.
Approved in American Cotton Co. v. Collier, 30 Tex. Civ. Ill, 69
S. W. 1024, applying rule to statements as to work of cotton-press;
History Company v. Flint, 4 Tex. Ap. Civ. 370, 15 S. W. 914, princi-
pal is bound by agent's contract when he accepts portion of it; Kolp
V. Specht, 11 Tex. Civ. 688, 33 S. W. 715, fraud is not a defense to
note where representations were not relied on; dissenting opinion in
Barrett v. Featherstone, 89 Tex. 578, 35 S. W. 16, majority holding
no ground for reversal where facts constituting fraud are trivial.
Where Purchaser of Lots is Misled by representations of railroad
agent as to location of road in depot town, measure of damages is
difference between market value and the price paid for the lots.
1151 NOTES ON TEXAS REPORTS. 58 Tex. 134-148
Approved in Sigafus v. Porter, 179 U. S. 123, 21 Sup. Ct. Rep. 37,
45 L. 117, reaffirming rule; dissenting opinion in W. P. Walker &
Co. y. Walbridge, 136 Fed. 26, majority holding that plaintiff might
recover value of land title to which had failed. See note, 123 Am.
St. Rep. 782.
Designating a Company by Its Name does not give rise to the
presumption that it is a corporation.
Approved in Underwood v. First Nat. Bank (Tex. Civ.), 62 8. W.
943, affidavit for writ of garnishment against corporation should
allege its incorporation,
58 Tex. 134-140, POOLE ▼. HOUSTON ETC. BY.
Notice of Stoppage in Transit Served on Agent having control of
railway freights at point of destination of goods is service on com-
pany.
Approved in H. & T. C. Ry. v. Poole, 63 Tex. 247, reaffirming rule
on subsequent appeal.
Where Attorney for Insolvent Consignees intercepted goods in
transitu, and reshipped them, it is error to charge that attorney
acted for himself and not as agent in order to make him liable.
Approved in Harris v. Tentey, 85 Tex. 261, 34 Am. St. Rep. 804, 20
S. W. 85, in action for recovery of goods converted consignees are
not necessary parties; Taylor v. Evans (Tex. Civ.), 29 8. W. 174,
setting aside an attachment issued on information given out by
the debtor's attorney.
68 Tez. 141-148, 44 Am. Bep. 604, NEWCOME ▼. UOHT.
Judge is Disqualified to Hear an action where he has been counsel
for one of the parties and judgment which he renders is not con-
clusive.
Approved in Ogle v. State, 43 Tex. Cr. 232, 96 Am. St. Rep. 860,
63 S. W. 1012, holding void judgment on indictment by grand jury
of thirteen men; In re Eatonton Electric Co., 120 Fed. 1013, applying
rule to judge related within fourth degree, though parties consent;
Winston v. Masterson (Tex. Civ.), 27 S. W. 692, a judgment rendered
by a disqualified judge is a nullity; Patton v. Collier, 90 Tex. 119,
37 S. W. 414, judgment valid where judge being brother in law of
plaintiff's attorney had no interest in it; Lee v. Heuman, 10 Tex.
Civ. 667, 32 S. W. 94, judge not disqualified for mere casual opinions;
McVea v. Walker, 11 Tex. Civ. 47, 31 S. W. 839, judgment void
where judge was related to judgment creditor within third degree;
Jouett V. Gunn, 13 Tex. Civ. 88, 35 S. W. 196, acts of judge when
disqualified in accepting report of commissioners are void; Abrams
V. State, 31 Tex. Cr. 451, 452, 20 S. W. 988, judgment is void al-
though parties consented not to raise question of competency;
Tampa etc. Power Co. v. Tampa etc. E. R., 30 Fla. 599, 607, 11 So.
563, 565, 17 L. R. A. 681, holding judge not disqualified where
plaintiff does not base its action upon his opinion; State v. Hocker,
34 Fla. 30, 15 So. 583, 25 L. R. A. 114, applying rule to judge con-
nected with main suit. See notes, 84 Am. Dec. 128; 3 Am. St. Rep.
622; 36 Am. St. Rep. 534; 47 Am. St. Rep. 46; 25 L. R. A. 114, 115.
Distinguished in Riggins v. Richards, 97 Tex. 235, 77 S. W. 947,
aldermen preferring charges against mayor not disqualified to try
him; Loeklin v. State (Tex. Cr.), 75 S. W. 311, judge not disqualified,
though as illegally appointed district attorney he presented ease
68 Tex. 148-164 NOTES ON TEXAS BEPORTS. 1152
against accomplice to grand jury; Notley v. Brown, 17 Haw. 395,
in absence of statute, judge not disqualified from having been eoun-
sel; State v. Omaha Nat. Bank, 66 Neb. 883, 93 N. W. 327, judge
not disqualified from sitting in action which as governor he formally
authorized.
58 Tex. 148-162, BOSS ▼. FITCH.
Imputatloii of Want of Oliastity to female is not slanderous per se.
Disapproved in Patterson v. Frazer (Tex. Civ.), 79 8. W. 1081,
and Hatcher v. Bange, 98 Tex. 88, 81 S. W. 291, both holding since
such imputation is now criminal by statute, it is slanderous per se.
58 Tex. 162-157, DOTSOK ▼. MOSS.
Judgment will not be Bevened for Befosal to give instructions
where verdict predicated on them could not be sustained.
Beaffirmed in Lee v. Welbome, 71 Tex. 502, 9 S. W. 472.
Approved in Bowles v. Brice, 66 Tex. 731, 2 S. W. 733, judgment
will not be reversed for erroneous instructions when they are im-
material; Commercial etc. Assurance Co. v. Meyer, 9 Tex. Civ. 15,
29 8. W. 96, applying rule to refusal to give charge for partial loss
where there was total loss.
Defendant Belying on Possession of Others to sustain his plea of
statute of limitations must show privity between them and himself.
Approved in Garcia v. Illg, 14 Tex. Civ. 486, 37 8. W. 471, de-
fendant cannot avail himself of adverse possession where he shows
no privity with adverse holder.
Supremo Oourt wiU not Interfere with discretion of trial court
refusing new trial on account of surprise in testimony of witness,
where there was no prudence exercised in ascertaining what he
would swear to before trial and where no abuse of discretion is
shown.
Approved in Griffith v. Eliot, 60 Tex. 336, and Pickett v. Martin
(Tex.), 16 8. W. 1008, both following rule; Gulf etc. By. v. 8hearer,
1 Tex. Civ. 354, 21 8. W. 137, no reversal where appellant made no
effort to withdraw his announcement of ready for trial, before the
evidence was introduced; Dempsey v. Taylor, 4 Tex. Civ. 130, 23
8. W. 222, no new trial will be given where defendant, though sur-
prised, does not show materiality of evidence; Sheppard v. Avery
(Tex. Civ.), 32 8. W. 794, appellate court will not grant a new trial
on unsworn averment of surprise.
58 Tex. 157-164, BLTTM ▼. WELBOBKE.
In Suit by Assignee of Insolvent against attaching creditor for
damages resulting from attachment, answer must show that assignor
was insolvent, and that he acted in contemplation of insolvency in
making assignment.
Approved in Johnson v. Bobinson, 68 Tex. 401, 4 8. W. 626,
sheriff cannot attach goods conveyed by trust where assignmeot
does not show assignor was insolvent; Hudson v. Eisenmayer etc.
Elevator Co., 79 Tex. 407, 15 8. W. 387, plaintiff seeking to construe
an instrument as an assignment must prove makers were insolvent.
Attaching Creditor cannot Disregard Assignment for benefit of
creditors on account of fraudulent acts of assignor or assignee, or
both, made before or at time of assignment.
1153 NOTES ON TEXAS EEPOETS. 58 Tex. 164-169
Beaffirmed in Schneider y. De Smith, 2 Posey U. G. 318, and In
re Mann^ 32 Minn. 64, 19 N. W. 349. Approved in Cunningham v.
Holt, 12 Tex. Civ. 157, 33 S. W. 984, holding solvent person eould not
assign for benefit of creditors.
Approved in Windham v. Patty, 62 Tex. 493, motives of assignor
immaterial if assignment is valid; Piggott v. Schram, 64 Tex. 453,
evidence showing fraud in making assignment not relevant if
assignment is valid; Lewy v. Fischl, 65 Tex. 319, valid assignment
passes title though it possesses fraudulent features; Moody v. Car-
roll, 71 Tex. 146, 147, 10 Am. St. Rep. 736, 737, 8 8. W. 511, assign-
ment authorizing assignee to sell property on a credit not void;
City Nat. Bank v. Merchants' Nat. Bank, 7 Tex. Civ. 592, 27 S. W.
851, fraud of maker does not vitiate an instrument construed as
assignment; Tennent v. Davis (Tex. Civ.), 31 S. W. 255, an assign-
ment made in the absence of proof of insolvency will be treated as
a common-law assignment; State v. Bose, 4 N. D. 328, 58 N. W.
518, 26 L. B. A. 593, assignment does not place property in custody
of law; Lawrence v. Norton, 15 Fed. 856, assignor by reserving in-
terest to himself vitiates assignment; Malvin v. Wert, 19 Fed. 722,
property concealed by assignor passes by law to assignee when found;
Cunningham v. Norton, 125 U. S. 85, 90, 8 Sup. Ct. Bep. 808, 811,
31 L. 627, law will carry out assignment disregarding incidental
variations. See note, 26 L. B. A. 599.
Contiiigent Claim or Claim of Uncertain Amomit need not be pre-
sented to administrator.
Approved in National Guaranty Loan etc. Co. v. Fly, 29 Tex. Civ.
535, 69 S. W. 232, note secured by liens and adjustment of equities
necessary.
Inability to Pay Debts as they become due in ordinary course of
business is insolvency.
Approved in Langham v. Lanier, 7 Tex. Civ. 7, 26 S. W. 256, apply-
ing rule to deed of assignment made part of pleading.
58 Tex. 164-169, DOKOHO ▼. FISH.
Assignment Under Act of March 24, 1879, by copartnership for
benefit of creditors must convey both firm and individual property
of debtors makin^r assignment.
Reaffirmed in Still v. Focke, 66 Tex. 723, 2 S. W. 63; McCord v.
Mills, 8 Wyo. 271, 56 Pac. 1006, 46 L. B. A. 737; Swoflford etc. Dry
Goods Co. V. Mills, 86 Fed. 562.
Approved in Coffin v. Douglass, 61 Tex. 407, holding assignment
by partners in partnership name is valid; Cleveland v. Battle, 68
Tex. 115, 3 S. W. 683, holding assignment by one partner on behalf
of firm not valid; Mcllhenny v. Miller, 68 Tex. 359, 4 S. W. 615,
applying rule to carry out intention of an imperfect assignment;
Orr etc. Shoe Co. v. Ferrell, 68 Tex. 639, 5 S. W. 490, assignment
is void which passes partnership property only; Baylor Co. v. Craig,
69 Tex. 332, 333, 6 S. W. 305, 306, copartner not 'joining in assign-
ment makes it void; Kittrell v. Blum, 77 Tex. 337, 14 S. W. 69,
assignment by one partner of copartner's private property has no
effect against levy; Turner v. Douglass, 77 Tex. 621, 622, 14 8. W.
222, holding sheriff could attach property of firm where only one
partner assigned; Kellogg v. Cayce, 84 Tex. 217, 19 S. W. 390, hold-
ing assignee could be garnisheed where all partners did not join in
2 Tex. Notes— 73
58 Tex. 170-176 NOTES ON TEXAS BEPOBTS. 1154
assignment; Wetzel v. Simon," 87 Tex. 415, 28 S. W. 944, holding
assignment by wife at instance of husband is valid; Byrd v. Perry,
7 Tex. Civ. 388, 389, 26 S. W. 752, applying rule to assignment which
does not pass all debtor's property; Hamilton-Brown Shoe Co. v.
Mayo, 8 Tex. Civ. 170, 27 S. W. 783, assignment of partnership
property only is void; Marsalis v. Oglesby, 1 Tex. Ap. Civ. 104,
statutory deed of assignment cannot be attacked for fraud by non-
consenting creditor; Bean v. Warden (Tex, Civ.), 31 S. W. 832, an
assignment by a partnership must be executed by all the members of
the partnership; Bogers v. Flournoy, 21 Tex. Civ. 558, 54 S. W. 388,
assignment by surviving partner of his individual property is void;
Williams v. Crocker, 36 Ma. 87, 18 So. 58, applying rule to assign-
ment of partnership property only; Cunningham v. Norton, 125 U. S.
86, 8 Sup. Ct. Bep. 809, 31 L. 627, holding assignment valid where
main purpose is accomplished though some provisions are not in
conformity to statute; Kennedy v. McKee, 142 U. S. 612, 613, 614,
12 Sup. Ct. Bep. 305, 35 L. 1133, applying rule to assignment of
partnership property only; Muller v. Norton, 19 Fed. 719, assignment
with stipulations hindering nonconsenting creditors is void; Lawrence
V. Norton, 15 Fed. 857, where assignor reserves an interest to him-
self, his assignment is void.
Distinguished in Tracy v. Tuffly, 134 U. S. 224, 10 Sup. Ct. Bep.
531, S3 L. 885, holding rule not applicable to limited partnership.
58 Tez. 170-176, 44 Am. Sep. 610, WESTEBN UNION TEL. CO.
T. BBOWN.
It Is Duty of Operator Transmitting "Bepeated" Message to inquire
after it and if necessary repeat it; failure to do this is negligence,
for which company is liable.
Approved in Western Union Tel. Co. v. Longwill, 5 N. M. 319, 21
Pac. 341, contracts of telegraph company are void from negligence
of agents.
Damages for Failure to Send Telegraphic Message are not confined
to stipulations in printed form, but include actual injury sustained
through nondelivery of message.
Approved in Marr v. Western Union Tel. Co., 85 Tenn. 549, 3 S»
W. 503, printed stipulations regarding liability are invalid when
damage is result of negligence. See note, 117 Am. St. Bep. 295.
Exemplary Damages will not be Imputed to principal when act is
committed by an agent.
Approved in Vance v. Lindsey, 60 Tex. 291, pecuniary loss in
defending suit cannot be considered as basis for exemplary damages;
Stuart V. Western Union Tel. Co., 66 Tex. 583, 59 Am. Bep. 626, IS
S. W. 352, plaintiff cannot recover exemplary damages for wrong-
ful acts of agents; Western Union Tel. Co. v. Sheffield, 71 Tex. 576^
10 Am. St. Bep. 794, 10 S. W. 755, sender cannot exact minute de-
tails of company* in forwarding message; Emerson v. Skidmore, 7
Tex. Civ. 646, 25 S. W. 673, exemplary damages will be given where
manager sues out writ without probable cause.
Error to Submit Question of Exemplary Damages to jury wheit
record fails to show approval by the company of agent's negligence^
Approved in Western Union Tel. Co. v. Goodsey, 4 Tex. Ap. Civ.
185, 16 S. W. 789, error to overrule exception to exemplary damages
where general allegation of negligence.
1155 NOTES ON TEXAS REPORTS. 58 Tex. 176-186
Distinguished in St. Louis etc. Ry. Co. v. McArthur, 31 Tex. Civ.
208, 72 S. W. 77, imputiug to railway company malice presumed from
failure of general passenger agent to answer letters denying charges.
58 Tex. 176-182, 44 Am. Bep. 614, WOMACE t. WESTERN UNION
TEL. CO.
Sender of Message in A'bsence of Fraud cannot avoid contract,
voluntarily signed, on ground of omission to read printed form.
Approved in Beasley v. Western Union Tel. Co., 39 Fed. 184,
holding sender chargeable with notice.
Mere Fact That Message Delivered is Different from one sent is
not sufficient evidence of negligence to entitle plaintiff to recover.
Approved in Beasley v. Western Union Tel. Co., 39 Fed. 187, mere
negligence will not entitle sender to damages. See note, 11 L. R. A,
(n. s.) 564.
Telegraph Companies can by Express Contract contained in printed
notices limit their liability for delays and errors in sending mes-
sages.
Reaffirmed in Western Union Tel. Co. v. Edsall, 63 Tex. 674; Gulf
etc. Ry. V. Wilson, 69 Tex. 742, 7 S. W. 655; Western Union Tel. Co.
V. Hearne, 77 Tex. 84, 13 S. W. 971; Western Union Tel. Co. v.
Smith, 3 Tex. Ap. Civ. 87; Western Union Tel. Co. v. Goslin, 3 Tex.
Ap. Civ. 267; Western Union Tel. Co. v. Harper, 15 Tex. Civ. 38, 39
S. W. 599.
Approved in Western Union Tel. Co. v. Elliott, 7 Tex. Civ. 486.
27 8. W. 221, error to charge company liable where proximate
cause was a mistake in transmission; Western Union Tel. Co. v.
Reeves, 8 Tex. Civ. 43, 27 S. W. 321, company not liable for non-
delivery where message was not repeated; Hill v. Western Union
Tel. Co., 85 Ga. 429, 21 Am. St. Rep. 167, 11 S. E. 875, holding
company not liable where it stipulated regarding claims; Gillis v.
Western Union Tel. Co., 61 Vt. 468, 15 Am. St. Rep. 923, 17 Atl. 738,
4 L. R. A. 611, company is liable for its own negligence; Western
etc. Tel. Co. v. Norris, 25 Tex. Civ. 47, 60 S. W. 984, company is
liable for negligence of its agents. See notes, 71 Am. Dec. 466, 467.
473; 81 Am. Dec. 615; 45 Am. Rep. 490; 1 Am. St. Rep. 358; 10 Am.
St. Rep. 711; 40 Am. St. Rep. 853.
Company is Liable Where Ai^parent Omissions or perversions in
delivered message indicate fraud or gross negligence.
Approved in Western Union Tel. Co. v. Odom, 21 Tex. Civ. 541,
52 S. W. 635, holding company liable where mistake is unquestioned.
58 Tez. 187-190, INTEBNATIOKAL ETC. B. B. OO. ▼. SOOTT.
Anthority to File Statement of Facts during vacation must be
exercised by order entered during term and time allowed cannot ex-
ceed ten days after adjournment thereof.
Approved in Wilcox v. League, 31 Tex. Civ. 110, 71 S. W. 414,
reaffirming rule.
58 Tex. 183-186, COBPOBATIOK OF 8EOUIN ▼. IBEIiAND.
Judgment Abating Nuisance on Land dedicated to public use will
be reversed where evidence is insufficient to show dedication to
public use.
Approved in Day v. Chambers, 62 Tex. 192, refusing to revise
judgment where statement ef facts was insufficient.
58 Tex. 191-216 NOTES ON TEXAS EEPORTS. 1156
58 Tez. 191-204, LOVE ▼. KEOWNE.
Proper to Join Two Sets of Suretiee in an action to ascertain their
respective liabilities.
Approved in Finegan v. Bead, 8 Tex. Civ. 36, 27 S. W. 263, par-
ties having interest in same matters in suit may be joined; Mathoni-
can V. Scott, 87 Tex. 400, 28 S. W. 1065, applying rule to joinder of
maker and indorser as defendants; Williams ▼. Robinson, 63 Tex.
582, misjoinder where no common liability of all parties.
Proper to Join Defendants to save multifarious suits.
Approved in Harris v. Cain, 41 Tex. Civ. 144, 91 S. W. 869, per-
mitting joinder of suit on vendor's lien and action against trans-
ferrer of note alleged to be secured thereby; Milam v. Hill, 29 Tez.
Civ. 577, 69 S. W. 450, executor, heirs and devisees proper parties
to suit by widow to establish community interest in partnership
assets; Commercial Nat. Bank v. First Nat. Bank (Tex. Civ.), 77
S. W. 241, in suit on note where forgery pleaded, proper to join one
who represented signature to be genuine; Singer Mfg. Co. v.
Ponder, 82 Tex. 656, 18 S. W. 153, applying rule to suits against
different sureties for defalcation; Boy v. Whitaker (Tex. Civ.), 50
S. W. 498, many rulings in a probate proceeding may be brought up
in the same appeal; Sun Ins. Office v. Beneke (Tex. Civ.), 53 S. W.
100, mortgagee can make insurance company and mortgagor parties
defendant in the same suit.
Ko Bill of Discovery, technically so called, in Texas practice ;
remedy is to make opposite party a witness or propound interroga-
tories to such party.
Approved in Cargill v. Kountze, 86 Tex. 395, 40 Am. St. Bep. 861,
22 S. W. 1019, 24 L. B. A. 183, reaffirming rule to judgment credi-
tors; Coleman v. First Nat. Bank, 17 Tex. Civ. 136, 43 S. W. 939,
holding no bill of discovery in Texas practice; Kruger v. Spachek,
22 Tex. Civ. 308, 54 8. W. 296, applying rule to introduction of
depositions. See note, 24 L. B. A. 188.
Limited in Kountze v. Cargill (Tex. Civ.), 22 S. W. 229, the pur-
pose of the statute as a bill of discovery cannot extend beyond the
matters in controversy.
Party Obtaining Fraudulently from Administrator property of
estates is a proper party to a suit against administrator, although
he is surety upon a second bond.
Approved in Watkins v. Sansom, 22 Tex. Civ. 182, 54 S. W. 1098,
proper to join grantee with administrator who is not discharged;
Skipworth v. Hurt, 94 Tex. 331, 332, 60 S. W. 424, 425, holding bank
liable for applying county funds to treasurer's private account.
58 Tez. 210-216, OBIFFIE ▼. MAXET.
Lien Qiven by Trust Deed for Debt which could not be enforced
by sale of homestead is discharged by death of debtor during oc-
cupancy as homestead, to the extent of the interest owned when
deed was executed.
Approved in King v. Barter, 70 Tex. 581, 8 S. W. 309, property
used by head of family as place of business is part of homestead
till abandoned; Kreuger v. Wolf, 12 Tex. Civ. 177, 33 S. W.. 668,
claims of widow and children to homestead rights take precedence
over creditors* claims; dissenting opinion in Hoffman v. Hoffman,
79 Tex. 198, 15 S. W. 472, majority holding widow's allowance takes
1157 NOTES ON TEXAS BEPORTS. 58 Tex. 216-222
precedence over creditors. See notes, 1 Am. St. Bep. 594; 56 L. B.
A. 59, 79.
Property not Homesteaded, though covered hy lien, may be sold
to provide widow's allowance unless liens were properly executed.
Approved in Ford v. Sims, 93 Tex. 589, 57 S. W. 21, statute hold-
ing no appropriation to widow of exempt property till debts secured
by liens are discharged is valid; Parlin & Orendorff Go. v. Davis
Estate . (Tex. Civ.), 74 S. W. 952, property cannot be set aside to
widow and children as exempt until liens thereon satisfied.
See note, 56 L. B. A. 62.
One of Two Partners or Tenants in Conunon cannot, by purchas-
ing interest of other after their execution of deed of trust, impose
upon that interest a homestead character in favor of his widow and
children, so as to defeat lien of trust deed on his death.
See note, 56 L. B. A. 60.
Children's Bights in Homestead of parents are not affected by
order of probate court setting property aside to one whom father
subsequently married.
See note, 56 L. B. A. 50.
68 Tez. 216-222, PABE8 ▼. 0AX7DIA
In Action to Try Title, Plaintiff Need not Set out his chain of
title in petition.
Approved in Arthur v. Bidge, 40 Tex. Civ. 143, 89 S. W. 17, in
trespass to try title plaintiff not pleading title specifically may
prove any title except from limitation; Benavides v. Molino (Tex.
Civ.), 60 S. W. 261, plaintiff can establish title by limitation in
absence of plea.
Evidence That Witness had Looked Among Papers of custodian
and was satisfied that deed was not there, and that he had been
told that deed was burned, is sufficient evidence of its destruction
to admit secondary evidence of its contents.
Approved in Ammons v. Dwyer, 78 Tex. 646, 15 8. W. 1051, hold-
ing certified copy of ancient recorded instrument admissible when
execution of original is proved; Trimble v. Edwards, 84 Tex. 500,
19 S. W. 773, holding evidence of witness sufficient to prove loss of
instrument; Dohoney v. Womack, 1 Tex. Civ. 358, 19 S. W. 883,
witness can testify to execution and loss of deed; Western Union
Tel. Co. V. Hearne, 7 Tex. Civ. 72, 26 S. W. 480, no error to admit
certified copies of instruments on affidavits; Daniels v. Creekmore,
7 Tex. Civ. 576, 27 S. W. 149, testimony of executor and heir con-
cerning search for deed sufficient to admit secondary evidence;
Walker v. Pittraan, 18 Tex. Civ. 523, 46 S. W. 119, holding testi-
mony of contents of deed admissible where diligent search for orig-
inal was made; Smith v. Cavitt, 20 Tex. Civ. 561, 50 S. W. 168,
holding loss of instrument can be shown by witness.
Where Secondary Evidence of Lost Deed is resorted to after lapse
of twenty years, a general description of property conveyed and of
substance of deed is all that is required.
Approved in Daniels v. Creekmore, 7 Tex. Civ. 577, 27 S. W.
149, secondary evidence of contents of deed admissible though de-
scriptions are insuMcient.
Party to Suit by Heirs Seeking Becovery cannot testify to trans-
action between either deceased and himself or third parties, though
he had no interest therein.
58 Tex. 222-227 NOTES ON TEXAS EEPORTS. 1158
Approved in Edelstein t. Brown, 100 Tex. 405, 123 Am. St. Bep.
816, 100 S. W. 130, in action by children for commnnity interest in
estate of deceased mother, her alleged husband cannot deny that he
married decedent; Tenzler v. Tyrrell, 32 Tex. Civ. 446, 75 S. W. 59,
applying rule in trespass to try title by heirs of one giving title bond
against those claiming under bond; Gillaspie v. Murray, 27 Tex. Civ.
583, 66 S. W. 254, rejecting evidence of claimant under sale of land
by trustee that beneficiary, since deceased, requested trustee to sell
land; Heard v. Busby, 61 Tex. 14, applying rule where appellee tes-
tified in detail concerning transactions with intestate; Glover v.
Thomas, 75 Tex. 508, 12 S. W. 685, holding evidence of defendant
concerning transactions with plaintiffs ancestors inadmissible; How-
ard V. Zimpelman (Tex. Sup.), 14 8. W. 60, holding plaintiff cannot
testify of the reception of deed from deceased grantor; Eastham v.
Bandolph, 3 Tex. Ap. Civ. 148, claimant against deceased cannot
testify to conversations with, decedent concerning claim; Ellis v.
Ellis, 5 Tex. Civ. 49, 23 S. W. 997, error to admit conversation of
daughter with father relative to deed to land in controversy; Ellis
V. Stewart (Tex. Civ.), 24 S. W. 586, a guardian cannot testify as
to transactions between the ward's ancestor and defendant; Hicks v.
Hicks (Tex. Civ.), 26 S. W. 229, husband of an heir and party to
a suit cannot testify to transactions between plaintiff and deceased
grantor; Stuart v. Altman, 8 Tex. Civ. 659, 28 S. W. 462, applying
rule to action by surviving partner to enforce a firm debt; Gurley
V. Clarkson (Tex. Civ.), 30 S. W. 361, testimony by defendant as to
transactions with deceased is not admissible in action brought by
a widow of deceased; Wagner v. Isensee, 11 Tex. Civ. 493, 33 S. W.
156, arguendo; Garrett v. Garrett (Tex. Civ.), 47 S. W. 76, reaffirm-
ing rule; Williams v. Emberson, 22 Tex. Civ. 533, 55 S. W. 601,
son's testimony inadmissible to show father's intention; Hynes v.
Winston (Tex. Civ.), 54 S. W. 1070, evidence by defendant as to
transactions between a decedent is not admissible in suit on notes
belonging to decedent's estate; Cole v. Horton (Tex. Civ.), 61 S. W.
504, applying rule to testimony of wife concerning acts of her de-
ceased husband; Pennybacker v. Hazelwood, 26 Tex. Civ. 185, 61
S. W. 154, applying rule to defendant's testimony relative to acts
of plaintiff's ancestor; Gage v. Phillips, 21 Nev. 156, 37 Am. St. Rep.
499, 26 Pac. 62, holding mortgagor cannot testify to business trans-
actions with deceased mortgagor; Lewis v, Whitworth (Tex. Civ.),
54 S. W. 1079, following rule in suit to set aside deed of deceased
person.
58 Tex. 222-227, WIMBEBLT ▼. BAIIiEY.
Where Widow Under Will lias Power of Control and disposition of
estate without order of court, and she settles heir's share on him
during his life, the occupancy and claim of the estate by widow,
adverse to claim asserted by heir thus settled with, is notice to
creditors of heir of transfer of all his interest in estate, whether
same is recorded or not.
Approved in Collum v. Sanger, 98 Tex. 165, 82 S. W. 460, posses-
sion of cotenant purchasing interest of another cotenant, but not
recording deed, constructive notice to creditors of latter; Eylar v.
Eylar, 60 Tex. 319, holding possession is notice to purchaser of
possessor's title; Rhine v. Hodge, 1 Tex. Civ. 371, 21 S. W. 141,
holding possession by appellee's ancestor sufficient notice of exist-
1159 NOTES ON TEXAS BEPOETS. 58 Tex. 228-234
ence of deed; Smith t. James, 22 Tex. Civ. 156, 157, 54 S. W. 43,
holding notice by possession ia, equivalent to notice by registration
of deed; Hawley v. Geer (Tex. Sup.), 17 S. W, 916, and Gillespie
V. Crawford (Tex. Civ.), 42 S. W. 624, both holding eourt has no
control over an independent executor after return of inventory and
appraisement; Bamirez v. Smith (Tex. Civ.), 56 S. W. 259, posses-
sion is notice to a purchaser. See note, 13 L. B. A. (n. s.) 76, 131.
Miscellaneous. — ^Weir t. Smith, 62 Tex. 9, cited generally as con-
taining information as to true conatruction of will in respect to
estate conveyed to wife.
58 Tex. 228-231, OUADALXTPE OGUKTT ▼. WILSON C0XTNT7.
Court has No Jurisdiction to establish disputed boundary line be-
tween two counties; remedy is by legislative enactment.
Approved in Cameron v. State, 95 Tex. 551, 68 S. W. 509, holding
action of legislature in treating Greer county as part of state bind-
ing on courts; Harrold v. Arrington, 64 Tex. 238, holding disputed
territory subject to jurisdiction of Texas till settled by political
department; Kaufman Co. v. McGaughey (Tex. Civ.), 32 S. W. 928,
a surveyor establishing a county boundary under order of court
acts without authority; Kaufman Co. v. McGaughey, 11 Tex. Civ.
553, 32 S. W. 928, holding acts of commissioner and surveyor in
establishing boundary line invalid for want of authority; Gray v.
State, 19 Tex. Civ. 524, 49 S. W. 701, holding rule not applicable
where legislature has prescribed method for determining boundary.
Distinguished in Presidio County v. Jeff Davis County (Tex. Civ.),
77 S. W. 279, under statute district court may decide which of two
lines defined by legislature is the legal boundary.
Counties cannot Maintain Suit to establish disputed boundary line
if act defining it is unconstitutional.
Approved in Bockwall Co. v. Kaufman Co., 69 Tex. 173, 6 S. W.
431, applying rule to action to ascertain true boundary line.
58 Tex. 231-234, BANDAU. ▼. COLLINS.
Evidence to Set Aside Judgment by Default must clearly and satis-
factorily contradict sheriff's return.
Beaffirmed in Matchett v. Liebig, 20 S. D. 171, 105 N. W. 171,
Smoot V. Judd, 184 Mo. 545, 83 S. W. 493, Jensen v. Crevier, 33
Minn. 373, 23 N. W. 542, Huntington v. Crouter, 33 Or. 414, 72 Am.
St. Bep. 729, 54 Pac. 209; Connell v. Galligher, 36 Neb. 760, 55 N. W.
233. Approved in dissenting opinion in Mutual etc. Ins. Co. v. H;iy-
ward, 88 Tex. 329, 31 S. W. 513, majority holding supreme court has no
jurisdiction to determine fact.
Approved in Gatlin v. Dibrell, 74 Tex. 38, 11 S. W. 909, affidavit
of defendant charging neither fraud nor mistake not sufficient to
contradict return; Wood v. Galveston, 76 Tex. 130, 13 S. W. 228,
defendant's affidavit charging lack of jurisdiction not sufficient to
contradict return; East Texas Land etc. Co. v. Graham, 24 Tex.
Civ. 528, 60 S. W. 476, applying rule to recital of appearance in a
judgment; Kempner v. Jordan, 7 Tex. Civ. 278, 279, 26 S. W. 871,
holding party bound by judgment may impeach sheriff's return.
Parol Evidence is Admissible to contradict officer's return, where
it was fraudulently procured to show service.
58 Tex. 235-245 NOTES ON TEXAS BEPORTS. 1160
Approved in Krutz v. Isaacs, 25 Wasli. 577, 66 Pac. 144, sherilTi
return not conclusive evidence that place of service was defendant's
abode.
Miscellaneous. — Cited in August Kem Barber Supply Co. v. Freeze,
96 Tex. 616, 74 8. W. 304, holding judgment of justice of the peace
against nonresident void and impeachable without showing of mer-
its.
68 Tez. 236-242, MUBFHY ▼. WELDEB.
Dead not Describing Land With Cleaxnass as required hj statute
will not support plea of limitation.
Approved in Franklin v. Piper, 5 Tex. Civ. 260, 23 S. W. 945,
applying rule to declaration in deed; Williams v. Thomas, 18 Tex.
Civ. 474, 44 S. W. 1074, plea is not supported where names of sur-
veys are not identical.
Failure to Pay Taxes for Five Teajn is fatal to plea of limitation.
Approved in Sorley v. Matlock, 79 Tex. 307, 15 S. W. 262, holding
interruption in possession fatal to defense by limitation.
Beaffirmed in Taylor v. Brymer, 17 Tex. Civ. 520, 42 S. W. 1000.
Mere Casual Possession iiy Grazing of Cattle and making a water
dam upon property is not sufficient to sustain adverse possession.
Approved in Zepeda v. Hoffman, 31 Tex. Civ. 315, 72 S. W. 445,
where land only partly occupied and not inclosed or exclusively
used; Fuentes v. McDonald, 85 Tex. 136, 20 S. W. 44, holding mere
grazing of cattle not sufficient possession under the rule; Betts v.
Letcher, 1 S. D. 195, 46 N. W. 197, grazing of cattle not sufficient
possession to claim benefits of plea.
No Conclusion Adyerse to Legal Title of true owner can be drawn
from fact that after his title is perfected he refrains for long
period to take corporate possession of his land.
Approved in Grant v. Hill (Tex. Civ.), 29 S. W. 251, Mariposa
etc. Cattle Co. v. Silliman (Tex. Civ.), 23 S. W. 844, Grant v. Hill
(Tex. Civ.), 30 S. W. 957, and Satterwhite v. Bosser,61 Tex. 172, all
reaffirming rule; Edwards v. Gill, 5 Tex. Civ. 207, 23 8. W. 744,
strangers to title cannot bar recovery by pleading stale demand;
Karnes v. Butler (Tex. Civ.), 62 S. W. 953, claimant under void tax
deed cannot plead stale demand.
68 Tex. 242-243, COBPOBATION OF SAK PATRICIO ▼. IffATHIS.
Disputed Boundary Line Once Decided will not be determined in
a second suit in action to try title.
Beaffirmed in Barbee v. Stinnett, 60 Tex. 167, Jones v. Andrews,
72 Tex. 13, 9 S. W. 171, Birdseye v. Shaeffer (Tex. Civ.), 57 S. W.
989.
Approved in Carley v. Parton, 75 Tex. 103, see 12 S. W. 952, hold-
ing rule not applicable to second suit to determine limitation ques-
tion.
Equity will Protect legal title, irrespective of laches.
Approved in Higgins Oil & Fuel Co. v. Snow, 113 Fed. 436, re-
affirming rule.
68 Tez. 248-245, SAN PATRICIO COUKTT ▼. McCLANE.
Holder of Warrant Issued Under Order of County Court can main-
tain action thereon against county after failure of county court
to take action thereon, where it was presented to it for allowance
1161 NOTES ON TEXAS REPORTS. 58 Tex. 245-262
and where county treasurer also refused to pay it without directions
from county court.
Qualified in Sherwood v. La Salle Co. (Tex. Civ.), 26 S. W. 651,
refusal to act in the matter of a warrant is equivalent to the re-
fusal to pay.
Ooimty Oonrt can, under Paschal's Digest, article 1229, issue inter-
est bearing warrants to pay for public improvements.
Approved in Davis v. Burney, 58 Tex. 368, holding commission-
er's court could issue scrip bearing interest for allowed claims. See
note, 17 L. R. A. 556.
58 Tex. 245-253, FOBDTBAN ▼. ELLIS.
Call for Line of Another Survey, which is open line on prairie
at point of intersection, will not yield to conflicting call for dis-
tance, when location of open line is determined with certainty by
natural objects, marked lines, and fixed corners of abutting sur-
veys.
Approved in Davis v. Baylor (Tex. Sup.), 19 S. W. 525, reaffirm-
ing rule; Moore v. Reiley, 68 Tex. 670, 5 S. W. 621, applying rule
to call for old surveys; Blum v. Bowman, 66 Fed. 886, holding charge
erroneoua which gives undue prominence to call for a specific corner;
White V. Blum, 79 Fed. 276, a call for a specific corner easily ascer-
tainable is superior .to a call for distance.
ITTlien Court Befuaes to Qiye Charge upon issue, in a case where
evidence would not sustain finding thereon, such refusal is not error.
Approved in Galveston etc. Ry. v. Worthy (Tex. Civ.), 27 S. W.
429, refusal to give a charge is not reversible error unless it was
prejudicial to appellant.
68 Tez. 254-257, BBOWN ▼. GRAHAM.
The Constitutional Power Oiven County Commissioner to erect a
courthouse includes power to enlarge and repair courthouse already
erected.
Approved in Smith v. Grayson Co., 18 Tex. Civ. 156, 44 S. W. 923,
construing words "maintenance of public roads" in statute to mean
providing and repairing a road systent
68 Tez. 257-262, TEAL ▼. TERRELL.
Court may Charge upon Legal Effect of uncontroverted evidence,
since such charge is not upon the weight of evidence.
Approved in Eason v. Eason, 61 Tex. 226, no error to charge for
plaintiffs upon undisputed facts; Supreme Council v. Anderson, 61
Tex. 301, applying rule to charge that defendant was life insurance
company for profit; Heflin v. Burns, 70 Tex. 354, 8 S. W. 50, apply-
ing rule to charge that papers were filed on a certain day; Fort
Worth etc. Ry. v. Pearce, 75 Tex. 283, 12 S. W. 865, holding judge
could charge for plaintiff where there was no confiict in evidence;
Prcndergast v. Williamson, 6 Tex. Civ. 729, 26 S. W. 422, judge
could charge for defendant where plaintiff cannot recover under
most favorable view of testimony; Wright v. Hardie (Tex. Civ.), 30
S. W. 676, no error to refuse a charge upon an undisputed fact
clearly established; Houston etc Ry. v. Berling, 14 Tex. Civ. 549,
37 S. W. 1086, court can charge existence of undisputed fact; Baker
▼. De Freeae, 2 Tex. Civ. 530, 21 S. W. 966, where it would be wrong
68 Tex. 266-289 NOTES ON TEXAS BEPOBTS. 11C2
to allow plaintiffs to recover, it is immaterial what charges were
given or what were refused.
Cotenants cannot Claim Benefit of Statute of Limitation against
each other until repudiation of common title by adverse possession
is clearly established.
Beaffirmed in Garcia v. Hlg, 14 Tex. Civ. 488, 37 S. W. 473.
58 Tez. 26&-269, BONDIES T. BUFOBD.
Suits Against Executor must be Brought in court having jurisdic-
tion of probate proceedings, notwithstanding executor is exempted
by will from control of court.
Approved in Logan ▼. Bobertson (Tex. Civ.), 83 S. W. 397, apply-
ing rule to guardianship proceedings; McKay v. Marshall Nat. Bank,
16 Tex. Civ. 638, 42 S. W. 871, foreclosure of ward's property
should be brought in court having jurisdiction of guardianship mat-
ters.
58 Tez. 270-276, ZAFP ▼. MICHAEIJS.
Verdict will not be Disturbed Wliere Evidence is so conflicting
that jury might find either way.
Beaffirmed in Mutual etc. Ins. Co. v. Hayward, 88 Tex. 327, 31 S.
W. 511; Newcomb v. Babb, 2 Tex. Ap. Civ. 666.
Approved in Houston etc. By. v. Schmidt, 61 Tex. 286, reversing
verdict contrary to evidence; Hanriek v. Dodd, 62 Tex. 89, sustain-
ing verdict fairly supported by evidence; Mutual etc. Ins. Co. v.
Tillman, 84 Tex. 35, 19 S. W. 296, reversing verdict where defense
was proved by a preponderance of evidence.
Where Damages Allowed Appellee is not the main question in case,
appellee is permitted to remit such damages in order to have judg-
ment affirmed.
Approved in Vance v. Lindsey, 60 Tex. 291, applying rule to
judgment for damages for loss in defending suit; Galveston etc.
By. V. Duelin, 86 Tex. 454, 25 S. W. 408, remitting cost of medicine
where it was not an element of damages pleaded; Coles v. Thomp-
son, 7 Tex. Civ. 668, 27 S. W. 47, sustaining judgment for damages
occurring after filing of petition when admitted without objection;
International etc. By. v. Arias, 10 Tex. Civ. 194, 30 S. W. 447, re-
versing judgment for damages where negligence of appellant was
not shown.
68 Tez. 27&-289, TEXAS ETC. B. 00. ▼. WHITMOBE.
Fellow-employee can Becover where he has no notice of careless-
ness of his fellow-employee.
Approved in Dallas v. G., Cal. & S. F. By., 61 Tex. 204, applying
rule to injury of one engaged to guard ties for roadbed; Texas etc.
By. V. Johnson (Tex. Civ.), 34 S. W. 189, holding plaintiff cannot
recover where he knew of reckless character of conductor, and
remained under his charge; Galveston etc. By. v. Eckols, 7 Tex. Civ.
432, 26 S. W. 1118, company ia not liable for injury where servant
knew incompetency of coemployee. See note, 54 L. B. A. 84.
Distinguished in Texas etc. By. v. Kirk, 62 Tex. 233, holding rule
not applicable to injury resulting from unsoundness of track.
Company is Liable for Injury caused by recklessness of fellow-
employee retained in service by agent authorized to employ and
discharge workmen.
1163 NOTES ON TEXAS REPORTS. 58 Tex. 290-293
Approved in Galveston etc. Ry. v. Farmer, 73 Tex. 88, 11 S. W.
157, trainmen cannot recover for injury from careless loading of a
car by one to whom he is not subject; Stephenson v. Yeargan, 17
Tex. Civ. 118, 42 8. W. 629, principal not bound by agent's acts
when not fraudulent.' See note, 25 L. R. A. 710.
Corporation Is Liable for Want of Care of Agent clothed with
power to employ and discharge servants in employing incompetent
men, by reason of whose negligence injury results to other servants.
Approved in Gulf etc. R. Co. v. Wells (Tex. Sup.), 16 S. W. 1027,
a section-boss having power to employ and discharge men is not
a fellow-employee of a section-hand; Fort Worth etc. Ry. v. Wilson,
3 Tex. Civ. 586, 24 S. W. 688, holding company liable for notice of
condition of track given to agent; Wall v. Texas etc. Ry., 2 Posey
U. C. 434, agent having power to employ other agents occupies posi-
tion of master. See note, 41 L. R. A. 135.
Company Is Bound to Fnxnish Suitable and safe machinery, and
also employ competent and careful servants.
Approved in Mo. Pac. Ry. v. Hill, 3 Tex. Ap. Civ. 456, reaffirming
rule; Houston etc. Ry. v. Patton (Tex. Sup.), 9 S. W. 177, master
must use due diligence to see that his servants continue careful and
competent after employment; Missouri etc. Ry. v. Patton (Tex. Civ.),
25 S. W. 340, holding company liable for sending out an engineer
unfamiliar with the road; L. R., M. R. & T. Ry. v. Leverett, 48 Ark.
346, 3 Am. St. Rep. 238, 3 S. W. 54, holding company liable for
injury caused by defective machinery. See note, 12 L. R. A. 343.
Distinguished in Smith v. Armour, 37 Tex. Civ. 636, 84 S. W. 676,
where servant injured knew of defect in appliance.
Corporation is not Exempt from Liability when it fails to fur-
nish suitable machinery as a result of delegating to an agent its
employment or selection, its superintendence or repair.
Approved in Missouri etc. Ry. v. Crenshaw, 71 Tex. 346, 9 S. W.
264, company liable for furnishing defective truck to porter; Gulf
etc. Ry. V. Kizziah, 86 Tex. 85, 23 S. W. 580, company is liable for
injury to inexperienced servant caused by latent defect in machin-
ery; Galveston etc. Ry. v. Templeton, 87 Tex. 47, 48, 26 S. W. 1067,
1068, company is liable for injury caused by defective brake. See
notes, 67 Am. Dec. 589; 41 L. R. A. 133.
58 Tex. 290-298, TINON ▼. WHITEHEAD.
Vendee Under Grant claiming in privity of estate to owner of
grant is estopped from claiming different lines inclosed land than
those recorded.
Approved in New York etc. Land Co. v. Gardner (Tex. Civ.), 25
S. W. 738, one surveying land and selling it in accord with survey
is bound by his survey; I^nks v. Buck (Tex. Civ.), 27 S. W. 1096,
a holder of a chattel mortgage secured by note and marking it paid
on part payment is estopped from claiming a balance from a bona
fide purchaser; Carden v. Short (Tex. Civ.), 31 S. W. 248, one aban-
doning a homestead and claiming another is estopped from claiming
homestead rights in property abandoned; Stewart v. Crosby (Tex.
Civ.), 26 S. W. 140, a purchaser without notice from a third party
who advised a mortgagee that no' outstanding claims were against
the mortgaged property is not bound by the act of the third party;
Sullivan v. McConnell, 73 Fed. 135, clerk cannot recover for services
when he fraudulently concealed his services; Hill v. Wand, 47 Kan.
58 Tex. 295-310 NOTES ON TEXAS EEPOETS. 1164
348; 27 Am. St. Bep. 295, 27 Pac. 990, landlord is estopped from
denying lessee authority to lease after so stating.
68 Tex. 296-305, QILLIAM ▼. NULL.
Heiis of Mother are Entitled to Seniimeration for their share of
purchase money, where surviving husband sold community property
after her death.
Approved in Cheek v. Herndon, 82 Tex. 151, 17 S. W. 765, vendees
of heirs can recover property where survivor appropriated more
than one-half of land; Taylor v. Taylor (Tex. Civ.), 26 8. W. 891,
where lands are sold to reimburse the survivor of a community, he
must show an account of all property sold and debts paid by him;
Williams v. Emberson, 22 Tex. Civ. 531, 55 8. W. 600, holding heir
entitled to have his interest in community property of mother set
aside in land in lieu of money.
Sarvlying Widow of Second Marriage is entitled to homestead
allowance out of husband's intere.8t in community property of first
marriage.
Approved in Shippey v. Hough, 19 Tex. Civ. 600, 47 8. W. 674, hold-
ing irregular homestead chosen by widow of second marriage out of
community lands of former marriage by husband valid; Crocker v.
Crocker, 19 Tex. Civ. 297, 46 8. W. 871, holding widow by second
marriage entitled to homestead interests in estate of husband; West
v. West, 9 Tex. Civ. 479, 29 8. W. 244, holding widow by second
marriage entitled to one-half of community property of former mar-
riage; Clift V. Kaufman, 60 Tex. 65, holding brick business store
part of homestead. See notes, 4 L. B. A. (n. s.) 798; 56 L. R. A.
69, 79.
Homestead Bights of Widow of Second Ifarriage must not inter-
fere with rights of her husband's cotenants derived from deceased
wife of first marriage.
Approved in McBride v. Moore (Tex. Civ.), 37 8. W. 452, Crocker
V. Crocker (Tex. Civ.), 46 8. W. 871, King v. Gilleland,. 60 Tex.
272, all reaffirming rule; Foreman v. Meroney, 62 Tex. 728, holding
second wife's interests are same as heirs of father in former mar-
riage; King V. Summerville (Tex. Civ.), 80 8. W. 1054, widow might
sell husband's lands improved with money borrowed from commun-
ity, though subject to homestead in his heirs; Hoffman v. Hoffman,
79 Tex. 193, 14 8. W. 916, interest of children by first marriage in
mother's estate not subject to allowances to widow of second mar-
riage.
58 Tex. 30^-310, lOLEHABT ▼. WILUa
Though Creditor of Insalyent Procures^ by trust deed from him,
a preference over other creditors, and such deed hinders or delays
other creditors, such act does not of itself, if transaction is bona fide
on part of preferred creditor, necessarily vitiate transfer.
Approved in Edwards v. Dickson, 66 Tex. 614, 2 8. W. 719, cred-
itor can purchase of debtor sufficient goods to pay his debt; Owens
V. Clark, 78 Tex. 550, 15 8. W. 102, claimant can purchase sufficient
property to pay debt, notwithstanding insolvency of vendor; Head
V. Bracht (Tex. Civ.), 40 8. W. 630, a purchase in good faith by a
creditor of sufficient property of defendant to pay his debt is valid;
Biococchi v. Casey-Swasey Co., 91 Tex. 268, 66 Am. St. Bep. 885, 42
8. W. 967, assignment by insolvent to creditor valid where he is un-
der moral obligation to transfer.
1165 NOTES ON TEXAS BEPOETS. 58 Tex. 314-334
68 Tez. 314-315, McGTJIRE ▼. NEWBILL.
Statement of Facts must be Made Up and filed within ten days
after adjournment for term.
Approved in Wilcox v. League, 31 Tex. Civ. 110, 71 S, W. 414, and
Lockett V. Schurenberg, 60 Tex. 611, both reaffirming rule; Salt River
etc. Co. V. Hickey, 4 Ariz. 242, 36 Pac. 172, in cause tried more than
ten days before end of term, bill of exceptions must be presented dur-
ing term; Lemon & McCabe v. Ward, 3 Ariz. 223, 73 Pac. 445, state-
ment of facts must be filed during term or order made extending time;
Ross V. McGowen, 58 Tex. 607, disregarding statement of facts not
filed within statutory time; Lainer v. Perryman, 59 Tex. 107, disre-
garding statement when not filed in time; Texas etc. By. v. McAllis-
ter, 59 Tex. 362, refusing to consider statement not filed within statu-
tory time; Baleigh v. Cook, 60 Tex. 440, applying rule to statement
not properly filed; Galveston v. Dazet (I'ex.), 16 S.-W. 21, a statement
of facts not filed within the extension of time allowed by court will
not be considered by the appellate court; Blackshire v. State, 33 Tex.
Cr. 161, 25 S. W. 771, applying rule to statement filed without order;
Matthews v. Boydstun (Tex. Civ.), 31 8. W. 816, appellate court will
not consider a statement of facts filed after the statutory time; Mc-
Avoy V. State (Tex. Cr.), 58 S. W. 1011, refusing to consider state-
ment where no order was made.
Distinguished in Sisk v. Joyce (Tex. Civ.), 68 S. W. 51, under stat-
ute statement may be filed after time prescribed, but due diligence
must be shown.
Certificate of Judge Autliorizing Statement of Facts to be filed after
statutory time wUl not be considered by supreme court.
Approved in Trewitt v. Blundell, 59 Tex. 254, statement disre-
garded when not filed within statutory time, though stipulated to
allow it.
58 Tex. 316-320, EIiAM ▼. DOKAU).
PurchaBer at Void Sale, made under valid judgment, is, in absence
of fraud, entitled to return of purchase money paid toward satisfac-
tion of judgment upon setting aside of sale.
Approved in Goble v. O'Connor, 43 Neb. 59, 61 N. W. 135, holding
purchaser not entitled to return of money for his fraudulent acts at
time of sale. See note, 69 L. B. A. 44.
58 Tex. 321-328, TEINITT OOUNTT ▼. POLK COUNTY.
In Suit by Trinity County Against Polk County to recover pro rata
of indebtedness of Trinity county alleged to be owing by citizens
living in territory detached under act of March 11, 1875, held that
there can be no recovery since under that act citizens of particular
territory, and not Polk county, were bound for pro rata of existing
indebtedness.
Approved in Morrow Co. v. Hendryx, 14 Or. 402, 12 Pac. 809, ap-
plying rule to collection of school tax by old county. See notes, 85
Am. Dec. 103; 20 Am. St. Bep. 679.
58 Tex. 328-334, McBEA ▼. McWTTJiTAMS.
Sureties Upon Bond of Mail Contractor's are responsible only to
government and are not amenable to actions brought by individuals
for failure to deliver package.
Approved in Hamilton v. Prescott, 73 Tex. 566, 11 S. W. 549, hold-
ing rights of one party dependent upon another are to be considered
as an entirety. See note, 90 Am. St. Bep. 192.
58 Tex. 334-364 NOTES ON TEXAS EEPOETS. 1166
Quaere, Whether Suit Against Bondsmen for criminal act could be
brought in county where crime committed.
Cited in Lasater v. Waits, 95 Tex. 555, 68 S. W. 500, suit against
sheriff's sureties for trespass by deputy must be brought in county
of their domicile.
68 Tez. 334-S41, McINEBY ▼. aAI.VESTON.
In Construing a Statute, an isolated provision should not be taken,
and, without regard to the context or purposes of the act, an in-
dependent and literal construction given to it.
Approved in Von Diest v, San Antonio etc. Co., 33 Tex. Civ. 578,
77 S. W. 633, holding ordinance prescribing fenders for street-cars
applies only to motor-cars and not to trailers; Storrie v. Houston etc.
By., 92 Tex. 144, 46 S. W. 801, 44 L. B. A. 716, holding intention of
legislature in enacting law shall govern.
Clerk Accepting Salary and paying fees into treasury cannot there-
after claim latter.
Approved in Nelson v. City of Supewor, 109 Wis. 623, 85 N. W.
413, contract of city council with firemen to accept less than legal
salaries invalid.
68 Tex. 341-360, EBBNDON ▼. EUYKENBALI..
Probate Sale will be Set Aside where vendee was attorney for ad-
ministrator and never paid purchase price.
Beaffirmed in Gray v. Quicksilver Mining Co., 68 Fed. 683.
58 Tex. 360-366, FBIEDLANDEB ▼.. EHBBKWOBTH.
Judge has Discretion to Dissolve Temporary Injunction where veri-
fied answer is filed to petition charging fraud.
Approved in Putnam v. Capps, 6 Tex. Civ. 613, 25 S. W. 1025, dis-
missal of injunction after verified answer is discretionary with judge.
68 Tex. 366-359, BYAK ▼. OOLDFBANK.
Where Oath to Affidavit on Attachment is left incomplete through
inadvertence, claimant will not be deprived of his rights if cured
in time by amendment.
Approved in Qray v. Steedman, 63 Tex. 98, no error where jurat
was amended under proper circumstances; Martin Brown Co. v. Mil-
burn, 2 Tex. Ap. Civ. 167, amendment to writs will be allowed when
no injury will follow.
Third Person Claiming Only an Interest in property attached, and
not in subject matter of suit, cannot intervene.
Approved in Baltz v. Engelke (Tex. Civ.), 43 S. W. 48, reaffirming
rule; Fisher v. Bogarth, 2 Tex. Ap. Civ. Ill, intervener must be in-
terested in subject matter of suit to intervene; Beddick v. Elliott
(Tex. Civ.), 28 S. W. 44, a purchaser at an execution sale cannot
intervene in suit by landlord in distress warrant; Williams v. Bailey
(Tex. Civ.), 29 8. W. 835, rights of third parties to recover from
sheriff and plaintiff for property sold under execution is not affected
by the judgment; B. F. Scott etc. Co. v. Carter (Tex. Civ.), 34 S. W.
378, a retiring partner conveying his interest to the survivor cannot
intervene in a suit for conversion by a third party. See note, 35
L. B. A. 773.
68 Tex. 369-364, BX7BNETT V. HABBIKaTON.
Judgment Awarding Land must follow and be confined to descrip-
tion pleaded.
1167 NOTES ON TEXAS EBP0BT8. 58 Tex. 364-375
Approved in Lazarus v. Bamett, 5 Tex. Civ. 6, 23 S. W. 822, decree
awarding partition of a different numerical block than that pleaded
is invalid; Brient v. Bruce, 5 Tex. Civ. 583, 24 S. W. 36, evidence can-
not aid verdict in describingr a line claimed by plaintiffs; Blakeley
V. El Paso etc. Loan Assn. (Tex. Civ.), 26 S. W. 295, and Lester v. Ft.
Worth etc. E. R. (Tex. Civ.), 26 S. W. 167, both holding a judgment
condemning land materially different from that pleaded cannot be
sustained; Lindsley v. Sparks (Tex. Civ.), 40 S. W. 606, court cannot
consult the evidence to supplement a verdict.
58 Tea:. 364-369, DAVIS ▼. BUBNEY.
Ck>miiil88loDieir'8 Ck>urt lias Power to Oontract for postponement o£
indebtedness by agreeing to pay interest as consideration of delay.
Approved in Waterbury v. Laredo, 60 Tex. 522, city has authority
to contract and pay attorneys out of revenue of ferry system. See
note, 17 L. B. A. (n. s.) 555.
58 Tex. 369-371, SBBUGSOK ▼. WILSON.
Affidavit for Writ of Oertlorari to justice court is to be construed
liberally.
Approved in Carroll v. Gilbert, 4 Tex. Ap. Civ. 462, 17 S. W. 1087,
granting certiorari where judge held only bailee could sue; Nelson
V. Hart (Tex. Civ.), 23 S. W. 833, petition for writ of certiorari need
only show that material error occurred in the proceedings.
In Acting on Motion to Quash Certiorari court looks to transcript
from justice court to determine merits of motion.
Approved in Owens v. Levy, 1 Tex. Ap. Civ. 178, applying rule on
appeal from justice court to cure defect of description in bond; Nelson
V. Hart (Tex. Civ.), 23 S. W. 832, and Eea v. Raley (Tex. Civ.), 37
S. W. 170, transcript is looked to in determining the merits of a
motion to dismiss writ of certiorari.
58 Tez. 371-375, WOOTEBS ▼. HOLLINaSWOBTH.
Assignee of One of Several Notes given for purchase price has no
priority in proceeds over other assignees because his note falls due
first.
Eeaffirmed in McMichael ▼. Jarvis, 78 Tex. 672, 15 S. W. 111.
Approved in Douglass v. Blount, 95 Tex. 381, 67 S. W. 490, 58 L.
B. A. 699, refusing to permit one of such assignees to redeem on
foreclosure sale by another; Soule v. Batcliff, 33 Tex. Civ. 261, 76
S. W. 584, only those holders of vendor's lien notes who are made
parties are bound by judgment; Wilson v. Hampton, 2 Posey U. C.
427, assignee of one note may join with assignor in foreclosing sev-
eral notes.
Distinguished in Perry v. Dowdell, 38 Tex. Civ. 100, 84 S. W. 835,
where one of series of notes secured by lien is assigned by owner,
assigned note is entitled to priority in lien; Yieno v. Gibson (Tex.
Civ.), 20 S. W. 718, purchase money notes transferred to different
parties are held to be paid pro rata and not pro tanto; Douglass v.
Blount, 93 Tex. 501, 502, 56 S. W. 335, rule not applicable to contest
between assignor and assignee; Douglass v. Blount, 22 Tex. Civ. 496,
55 S. W. 528, holding assignee of note carrying vendor's lien entitled
to priority; Dilley v. Freedman, 25 Tex. Civ. 40, 41, 60 S. W. 449,
450, assignee of note carrying lien entitled to priority; Lewis v. Boss
(Tex. Civ), 65 S. W. 505, 506.
58 Tex. 375-388 NOTES ON TEXAS BEPOBTS. " 11C8
68 Tex. 875-377, STABK ▼. WHITMAN.
Plea in Abatement Because Defendant ig not sued in county of
residence is invalid where it does not negative existence of any ex-
ceptions which under statute would authorize jurisdiction where suit
is brought.
Beaffirmed in Turman v. Bobertson, 3 Tex. Ap. (?{▼. 263. Ap-
proved in Callender etc. Co. v. Short, 34 Tex. Civ. 366, 78 8. W.
367, plea of defendant, sued in county where he had agreed to deliver
cotton, to be sued in county of domicile; Baleigh v. Cook, 60 Tex.
442, holding plea properly overruled where it did not negative plea
of jurisdiction; Carothers v. Mcllhenny, 63 Tex. 147, allegation of
acts committed in one county not sufficient to negative plea as to
other acts; Crawford v. Carothers, 66 Tex. 200, 18 S. W. 500, apply-
ing rule to omission of averment of place of payment; San Antonio
etc. By. V. Cockrill, 72 Tex. 618, 10 S. W. 704, plea not negativing
existence of grounds of jurisdiction over defendant properly denied;
Lindheim v. Davis, 2 Tex. Ap. Civ. 97, plea not excluding all matters
which would defeat it is bad on demurrer; Gardner v. Hudgins (Tex.
Civ.), 29 S. W. 69, plea of privilege not negativing the fact that the
case comes within the statutory exception is defective; Tignor v.
Toney, 13 Tex. Civ. 520, 35 S. W. 881, unneeessary to negative all
exceptions mentioned in statute; Gulf etc. By. v. Pickens (Tex. Civ.),
58 S. W. 157, plea is defective which does not exclude all supposable
matter tending to defeat it.
68 Tex. 377-380, KELLY ▼. BOBB.
Inquiry may be Made into Meaning of Words used by persons in
a particular business, such words having no fixed legal significance.
Approved in Brenneman v. Bush (Tex. Civ.), 30 S. W. 700, parol
evidence is admissible to explain terms used by builders in a eon-
tract.
Injunction Granted to Stay Waste by one cutting certain timber
under contract.
See note, 22 L. B. A. 234.
68 Tex. 380-383, BEAD ▼. ALLEN.
Judgment Against Tenant rendered in a suit to which landlord Is
not a party is not admissible in evidence in suit against landlord by
judgment creditor.
Approved in Sanford v. Tanner, 114 Ga. 1010, 41 S. E. 670, reaffirm-
ing rule; Willoughby v. Terrell, 99 Tex. 491, 90 S. W. 1029, applying
rule to action by applicant to purchase public land against tenajit
of state; McKelvain v. Allen, 58 Tex. 388, error to admit judgment
in evidence against one not a party to same; Allen v. Bead, 66 Tex.
20, 17 S. W. 117, wife's peaceful possession of her separate property
by her husl>and ceases when suit is brought against him; Spotts v.
Hanley, 85 Cal. 169, 24 Pac. 741, claimant's suit against tenant stops
running of statute in favor of landlord; Clark v. Perdue, 40 W. Va.
307, 21 S. E. 738, writ of possession executed against tenant changes
character of possession of landlord; Texas etc. By. v. Speights, 94
Tex. 356, 60 S. W. 661, purchase by husband of plaintiff's rights
stops adverse possession of wife. See note, 112 Am. St. Bep. 26.
58 Tex. 383-388, McKELVAIK ▼. ALLEN.
Vendor's Deed Absolute upon Its Face, but reciting nonpayment
of purchase money, will not pass title if notes simultaneously executed
reserve vendor's lien.
1169 NOTES ON TEXAS BEPOETS. 58 Tex. 389-394
Approved in Bansom v. Brown, 63 Tex. 189, vendee has absolute
title where no lien is reserved; Smith v. Gassidy, 73 Tex. 164, 12 S.
W. 16, contract for sale is executed where there is no reservation of
lien; Engelbach v. Simpson, 12 Tex. Civ. 192, 33 S. W. 598, where
vendor executed conveyance retaining lien, leg^l title was in him.
Distinguished in Branch v. Taylor, 40 Tex. Civ. 250, 89 S. W. 815,
when vendor releases lien he cannot recover land.
Agreement Beserving Vendor's Lien in Notes for purchase money
simultaneously executed with deed prevents title passing to vendee.
Beaffirmed in Lnndy v. Pierson, 67 Tex. 237, 2 S, W. 739; Kauif-
man v. Brown, 83 Tex. 45, 18 S. W. 426; Ellis v. Hannay (Tex. Civ.),
€4 S. W. 686.
Approved in Saunders v. Hartwell, 61 Tex. 688, recitals in note
contemporaneously executed with deed, sufficient notice of vendor's
lien; Allen v. Bead, 66 Tex. 20, 17 S. W. 117, possession by husband
of property claimed as separate property of wife stops limitation
against wife; Clementz v. Jones Lumber Co., 82 Tex. 427, 18 S. W.
600, mortgage simultaneously executed with note, but failing to
state amount, is construed as one instrument and insufficient notice of
mortgagee's rights; Anderson v. Silliman, 92 Tex. 568, 50 S. W. 579,
holding contract of sale executory where note simultaneously ex-
ecuted retained lien; Campbell v. Nicholson, 4 Tex. Ap. Civ. 499,
18 S. W. 135, error, after admitting note, to exclude chattel mort-
gage, simultaneously executed with note; Graham v. West (Tex. Civ.),
26 S. W. 921, a purchaser from vendee with notice that purchase
money notes given by vendee were not paid, cannot recover possession
until he pays the notes; Jackson v. Ivory (Tex. Civ.), 30 S. W. 718,
vendor taking purchase money notes and reserving a lien has superior
title to the land till the notes are paid; Barber v. Hoffman (Tex. Civ.)
37 S. W. 769, a vendor reserving a lien and taking purchase money
notes can recover the property, though notes be barred by limitation;
Dodge V. Signer, 18 Tex. Civ. 45, 44 S. W. 926, statute of limitations
runs against notes executed simultaneously with deed from date of
deed, notwithstanding they mature at different times; New England
Loan etc. Co. v. Willis, 19 Tex. Civ. 131, 47 S. W. 391, applying rule
to notes executed simultaneously with deed and reserving vendoifsi
lien; Texas etp. By. v. Speights, 94 Tex. 356, 60 S. W. 661, adverse
possessor of land agreeing to purchase cannot claim the land by
adverse possession from date of the agreement; Curran v. Texas Land
«tc. Co., 24 Tex. Civ. 501, 60 S. W. 467, holding legal title still in
mortgage company where vendee did not comply with contract.
58 Tex. 389-394, HODDE ▼. SUSAN.
Surety on Claimant's Bond in proceedings for trial of right of
property is such a party to the cause as that his relationship to
magistrate before whom cause is pending will disqualify magistrate
from trying case.
Approved in Gains v. Barr, 60 Tex. 678, judge disqualified when
related to one interested in administration, though not party on
docket; Burks v. Bennett, 62 Tex. 279, judge is disqualified when he
is a creditor of estate; Schultze v. McLeary, 73 Tex. 94, 11 S. W,
924, where judge is related to wife of claimant he is disqualified if
she is interested in claim; Patton v. Collier, 90 Tex. 119, 37 S. W.
414, where judge is a brother in law of plaintiff's attorney, he is not
disqualified when attorney has no interest in judgment; Franco-
2 Tex. Notes — 74
58 Tex. 394-405 NOTES ON TEXAS BEPORTS. 1170
Texan Land Co. v. Howe, 3 Tex. Civ. 318, 22 S. W. 767^ reversing
judgment rendered by judge whose partner was pecuniarily inter-
ested; Hall V. Jankofsky, 9 Tex. Civ. 508, 29 S. W. 517, judge dift-
qualified as to one party cannot discontinue case as to him and con-
tinue as to others.
A Party to an Action is one who is directly interested in subject
matter in issue, who has a right to make defense, control the pro-
ceedings, or appeal from the judgment.
Approved in Howell v. Budd, 91 Cal. 353, 27 Pac. 749, reaffirming
rule; Simpson v. Brotherton, 62 Tex. 171, one interested in suit is
to be considered a party; Anglin v. Barlow (Tex. Civ.), 45 S. W. 82S,
decedent's wife not a party to the suit cannot testify as to transac-
tions between decedent and plaintiff; Texas etc. By. v. Elliott, 22
Tex. Civ. 32, 54 S. W. 411, wife is an interested party in suit for
damages by husband; Mitchell y. Bloom etc. Co., 91 Tex. 637, 45 S.
W. 558, arguendo.
58 Tex. 394-400, 44 Am. Bq^ 620, BELIANCE LXJMBEB CO. ▼.
WESTERN UNION TEL. CO.
Secondary Evidence as to Contents of Telegram which is the basis
of action, and which is set out in pleadings, is admissible, withou,t
giving notice to produce original.
Approved in Kothman v. Faseler (Tex. Civ.), 84 S. W. 391, certi-
fied copy of trust deed admissible where party notified not only by
direct notice but by nature of action, to produce original; Western
Union Tel. Co. v. Smith (Tex. Civ.), 26 S. W. 217, permitting plain-
tiff to introduce the telegram that he received when the original was
in possession of a third party and outside the jurisdiction of the court;
Gholston V. Ramey (Tex. Civ.), 30 S, W. 714, permitting plaintiff to
testify that she executed a deed when her pleadings charged defend-
ant with notice of it; Western Union Tel. Co. v. Thompson, 18 Tex.
Civ. 281, 44 S. W. 404, no error to admit parol evidence to prove
contents of telegram; Western Union Tel. Co. v. Bennett, 1 Tex. Civ.
560, 21 S. W. 699, no error to admit copies of telegrams which are
basis of suit; Angel v. Simmonds, 7 Tex. Civ. 333, 26 S. W. 911,
applying rule to introduction of copy of lease fully described in
pleadings; Ellis v. Sharp, 20 Tex. Civ. 483, 49 S. W. 410, holding
secondary evidence of written contract is admissible when it ia basis
of action. See note, 110 Am. St. Bep. 770.
Distinguished in Western Union Tel. Co. v. Taylor, 3 Tex. Civ. 314,
22 S. W. 533, where rule was thought not applicable, but no decision
was made on the question. See note, 45 Am. Bep. 500.
Damages Alleged to have Besolted from failure to deliver telegram
cannot include speculative and prospective profits likely to have
been made.
See notes, 45 Am. Bep. 496; 10 Am. St. Bep. 779; 53 L. B. A. 95.
Miscellaneous. — Western Union Tel. Co. v. Jones, 81 Tex. 273, 16
S. W. 1006, cited as instance to sustain proposition that right of
action exists in beneficiary of telegram, though he was not a party
to the contract with the company.
£8 Tex. 400-405, BLUM ▼. MERCHANT.
Wliere Ooods are Seized Under Execution against debtor after rep-
resentations by debtor that he was true owner, and real owner did
not join in representations or fail to deny them^ where he had oppor-
1171 NOTES ON TEXAS EEPOBTS. 58 Tex. 405-416
tunity of preventing creditor from being deceived by them, tnie
owner is not estopped from controverting truth of them in action
against creditor.
Approved in Bynum v. Preston, 09 Tex. 291, 292, 5 Am. St. Bep.
51, 52, 6 S. W. 429, 430, defendants cannot plead estoppel where
plaintiff's conduct lacks elements of estoppel; King v. Harter, 70
Tex. 581, 8 S. W. 309, estoppel cannot be pleaded against homestead
claim; Strat ton- White Co. v. Castleberry, 15 Tex. Civ. 150, 38 S. W.
830, error to charge estoppel where evidence does not warrant it;
Foster v. McAlester (Ind. Ter.), 58 S. W. 085, plaintiffs are not en-
titled to charge of estoppel where defendants relied upon their repre-
sentations.
Distinguished in Westbrook v. Guderian, 3 Tex. Civ. 412, 22 S. W.
00, estoppel can be pleaded where party did not act on representa-
tion.
Damages for Wrongful ConTersion of goods is their value at the
place where they are seized and interest on that value.
Approved in Tucker v. Hamlin, 00 Tex. 174, Heidenheimer v.
Schlett, 63 Tex. 396, Willis v. Lowry, 66 Tex. 541, 2 S. W. 450, and
Arwine v. Arwine, 3 Tex. Ap. Civ. 194, all reaffirming rule; G. C. &
S. F. V. HoUiday, 65 Tex. 521, no error to charge injured party to
be put in same condition as before commission of tort; Galveston
etc. Ry. V. Home, 69 Tex. 649, 9 S. W. 442, plaintiff entitled to in-
terest on value of grass destroyed by fire from passing engine; Wil-
son V. Manning (Tex. Civ.), 35 S. W. 1080, reaffirming rule; Texas
etc. Ey. V. Payne, 15 Tex. Civ. 60, 38 S. W. 367, retail price cannot
properly measure value; Virginia Fire etc. Ins. Co. v. Cannon, 18
Tex. Civ. 593, 45 S. W. 948, noncondusive facts should not control
measure of damages.
68 Tex. 405-409, OOODHUE ▼. MEYERS.
Judgment by Default will be Set Aside where defendant files two
days afterward an affidavit stating his meritorious defense and ac-
counting for his absence.
Approved in Southwestern etc. Tel. Co. v. Jennings (Tex. Civ.),
51 S. W. 289, reaffirming rule; Pipkin v. Kaufman, 62 Tex. 550, judg-
ment on note will not be set aside unless affidavit stating proceedings
was not regularly filed within statutory time.
Miscellaneous. — Snelling v. Koerner (Tex. Civ.), 27 S. W. 887,
cited to the point that defendant may set off the return of certain
portions of goods paid for against another invoice of goods.
58 Tex. 409-416, QAItVESTOK ▼. MOBTOK.
Where Contract for City Printing could be awarded by any d,ele-
gated agent, a verbal motion in council awarding such contract after
consideration is valid.
Approved in El Paso Gas etc. Co. v. El Paso, 22 Tex. Civ. 312, 54
S. W. 799, contract for many years' duration could not be disposed
of by verbal motion.
Verdict will not be Beversed for erroneous charge if it is correct
upon a proper view of the law.
Approved in H. E. & W. T. By. v. Hardy, 61 Tex. 232, verdict
will not be disturbed for erroneous charge where it is immaterial;
Bowles V. Brice, 66 Tex. 731, 2 S. W, 733, judgment will, not be
reversed where testimony shows no other could be rendered; Hussey
58 Tex. 416-430 NOTES ON TEXA.S EEPOBTS. 1172
▼. Iiioser, 70 Tex. 45, 7 8. W. 607, applying rule to refusal to charge
nncontroverted fact; Lee v. Welborne, 71 Tex. 502, 9 8. W. 472,
Dargan v. Pullman Palace Car Co., 2 Tex. Ap. Civ. 610, and Patterson
V. Keller (Tex. Civ.), 26 8. W. 301, all reaffirming rule; Smith v.
Fordyce (Tex. Sup.), 18 8. W. 665, sustaining verdict, though the
law was faultlessly given in the charge; Lewis v. Alexander (Tex.
Civ.), 31 8. W. 418, sustaining a verdict right upon the facts^ bat
where the jury were erroneously instructed.
68 Tex. 416-420, ULES ▼. WOODS.
Court has Jurisdicticii of Nonresident voluntarily appearing.
Approved in Rice v. Peteet, 66 Tex. 569, 1 S. W. 657, defendants
cannot object to jurisdiction after submitting cause to court; York
V. State, 73 Tex. 657, 11 S. W. 871, court has jurisdiction where de-
fendants plead to insufficiency of process; Walter A. Wood etc. Ma-
chine Co. V. Edwards, 9 Tex. Civ. 539, 29 8. W. 418, reaffirming rule,
though answer be defective.
Courts have Jurisdiction Over Nonresident after his appearance
for wrongfully converting property without the state.
Approved in Mayer v. Brown, 4 Tex. Ap. Civ. 189, 16 8. W. 788,
court has jurisdiction of action to recover damages for property lost
outside state in transportation.
Nonresident Defendant Voluntarily Appearing cannot withdraw
jurisdiction of justice's court by appeal to district court.
Approved in Mexican Cent. By. v. Charman (Tex. Civ.), 24 S. W,
958, reaffirming rule; Murphy v. Wallace, 3 Tex. Ap. Civ. 511, apply-
ing rule where defendant voluntarily pleaded and obtained a con-
tinuance.
68 Tex. 420-421, CARLISLE ▼. HOOKS.
It Must be Alleged That One who accepted bill to be paid as soon
as he "should find himself in funds " actually had funds to pay bill.
Approved in Wright v. Farmers' Nat. Bank, 31 Tex. 407, 72 8. W.
104, promise of defendant to pay money "as soon as he eould," not
enforceable without proof of such ability.
68 Tex. 422-430, BLANTON ▼. MAYES.
Under Will Bequeathing to Three Persons and the survivor of them
all estate in trust, and same three were named as executors to act
independent of probate court, where two fail to qualify, though liv-
ing, executor qualifying must administer under orders of court.
Approved in Boy v. Whitaker (Tex. Civ.), 60 8. W. 496, holding
rule does not apply when the conditions which would take the estate
out of the jurisdiction of the county court have been complied with;
In re Estate of Grant, 93 Tex. 73, 53 8. W. holding testator cannot
empower court to appoint trustee in case of failure of acceptance
of trust by one nominated.
Distinguished in Anderson v. Stockdale, 62 Tex. 60, where one
or more executors nominated by will refuse to qualify, the others
may do so and carry out terms of will; Mayes v. Blanton, 67 Tex.
247, 3 8. W. 40, holding, on subsequent appeal, that one executor
qualifying can execute trust where there are debts, though other
executors be living; Roberts v: Connellee, 71 Tex. 15, 16, 8 S. W.
628, holding qualification by one executor withdraws trust estate from
administration of courts.
1173 NOTES ON TEXAS BEPOETS. 58 Tex. 430-440
Error to Submit Issue to Jury upon which there is no evidence it
jury are misled by it.
Reaffirmed in Gulf etc. By. v. Vieno, 7 Tex, Civ. 350, 26 S. W. 231.
Approved in Willis v. Morris, 66 Tex. 633, 1 S. W. 802, error to
charge jury where there has been no evidence on the issue.
Will Oiylng Trustees Power to manage and control property so as
to produce income, which income shall remain in their hands for cer-
tain time, and then be divided, together with original property,
among heirs, gives no power to sell for purpose of reinvestment.
Approved in Hoeflinger v. Hoeflinger, 132 Iowa, 578, 107 N. W.
313, where nothing but life estate devised, added power of control
does not give right to 'dispose of fee; Altgelt v. Sullivan (Tex. Civ.),
79 S. W. 337, authority to independent executor to wind up estate
does not authorize him to continue business in which decedent was
partner; Anderson v. Stockdale, 62 Tex. 61, executors have power
to sell property to pay necessary debts under will giving them cooi-
trol; Stone v. Kahle, 22 Tex. Civ. 188, 54 S. W. 377, trustee camnot
invest income from trust, in absence of power; Terrell v. McCown,
91 Tex. 254, 43 S. W. 12, arguendo that existence of debts is a neces-
sary condition under such circumstances, but making no decision on
the point. See note in 19 Am. St. Bep. 271.
68 Tex. 430-433, QIBSON ▼. MULUCAK.
Landlord cannot Enforce by Distress Warrant big lien for rent due
by tenant upon crops of subtenant.
Distinguished in Forrest v. Dumell, 86 Tex. 650, 26 S. W. 482,
holding landlord has lien on all crops grown on premises no matter
by whom; Stokes v. Burney, 3 Tex. Civ. 221, 22 S. W. 127, all prod-
uce raised on rented premises is subject to lien for rent. See note,
11 L. B. A. 855.
68 Tex. 434-440, WATSOK ▼. HOUSTON ETC. BY.
Brakeman Assisting in Operation of Oars is bound by custom or
usage regarding duties required of him, and if he sustains injury in
performance of hazardous duty imposed on him by guch usage, burden
is on him to show concealment of established usage.
Beaffirmed in M. P. By. v. Watts, 63 Tex. 552; Texas etc. By. v.
Moore, 8 Tex. Civ. 294, 27 S. W. 964. Approved in I. & G. N. By.
V. Hester, 64 Tex. 403, 404, company not liable where injured agent
was a section-hand working in foggy weather; Missouri etc. By. v.
Callbreath, 66 Tex. 528, 1 S. W. 623, company is liable for negligence
in not instructing agents of coupling cars in peculiar way; St. Louis
etc. By. V. Denny, 5 Tex. Civ. 366, 24 8. W. 320, agent cannot recover
for injuries resulting from his own dereliction of duty; Gulf etc. By.
V. McMahan, 6 Tex. Civ. 604, 26 S. W. 161, holding company liable
where injured agent showed enforcement of rule practically im-
possible; International etc. B. B. v. Arias, 10 Tex. Civ. 192, 30 S. W.
446, section-hand is bound by rule that trains might pass at any time;
Tierney v. Minneapolis etc. By., 33 Minn. 317, 53 Am. Bep. 40, 23
N. W. 233, company is liable where inspector did not mark damaged
car. See note, 77 Am. Dec. 223.
Brakeman Injured by Coupling Defectlye Car, which was, according
to custom, marked "out of order," cannot recover for injuries received
while coupling euch ear, by showing inability to read.
Beaffirmed in Praker v. St. Paul etc. By., 32 Minn. 58, 59, 19 N. W.
351, 352 and Chesapeake ft O. B. Co. v. Hennessey^ 96 Ped, 717. Ap-
68 Tex. 440-456 NOTES ON TEXAS EEPORTS. 1174
proved in Marshall v. St. Louis etc. Ry. Co., 78 Ark. 218, 115 Am. St.
Bep. 27, 94 S. W. 57, brakeman assumes risk whether or not he knew
particular defect; Gay's Admr. v. Southern Ry. Co,, 101 Va. 472, 44
S. E. 709, applying rule where employee injured in yard by project-
ing standard of damaged lumber car; Gulf etc. Ry. v. Mayo, 14 Tex.
Civ. 267, 37 S. W. 666, agent is liable when handling damaged car
marked according to custom; Brown v. Chicago etc. Ry., 59 Kan. 74,
52 Pac. 67, agent is liable for handling car upon repair track; Kelley
V. Chicago etc. Ry., 35 Minn. 492, 29 N. W. 175, agent cannot recover
for handling damaged car properly marked. See note, 44 L. R. A. 86.
In Suit by Brakemaa for Injurieg received while coupling defective
car, it is error to give instruction which assumes that placing of car
on sidetrack and chalking it "out of order" was erufficient to put
ordinary men engaged in coupling it with notice of its condition.
Approved in Eames v. T. & N. O. Ry., 63 Tex. 665. negligence is
a question for jury to determine.
68 Tez. 440-446, OHEVEAL ▼. McCOBMIOK.
Having Conveyed Title, grantor cannot ratify subsequent illegal
sale by trustee.
Approved in Bemis v. Williams, 32 Tex. Civ. 396, 74 S. W. 334,
where trustee did not refuM to act, no authority to appoint substi-
tute.
58 Tez. 447-451, MEADEB COMFAKY ▼. ABINGDALE.
Motion to Quash £xecuti(Hi can only reach defects apparent upon
face of execution and records.
Approved in Livingstone v. Wright, 68 Tex. 707, 5 S. W. 408, claim-
ant cannot go behind writ and inquire into debt.
Third Parties Raising the Questioii of invalidity of execution should
do so by direct pleading.
Approved in Wingfield v. Hackney, 30 Tex. Civ. 41, 69 S. W. 447,
invalid execution may be withdrawn before sale; Hamburg v. Wood,
66 Tex. 173, 18 S. W. 624, in trial of right of property burden of proof
is upon plaintiff, and claimant is defendant; Davis v. Dallas Nat.
Bank, 7 Tex. Civ. 45, 26 S. W. 223, no error to hold levy valid in
absence of proper plea.
58 Tex. 452-456, SABINE ETC. BY. ▼. JOACHIMI.
Appellant has, Under Bevised Statutes, article 1363, ten days after
date of entry overruling motion for new trial to file his statement on
appeal.
Approved in Palmo v. Slayden, 100 Tex. 15, 16, 92 S. W. 797,
applying rule to entry of judgment nunc pro tunc at subsequent term;
Sutherland v. Putnam, 3 Ariz. 192, 24 Pac. 324, statement must be
filed in time prescribed for bill of exceptions, if it is to be considered
as such; Blum v. Schram, 58 Tex. 528, granting motion to strike state-
ment from files when not properly filed; Barnhart v. Clark, 59 Tex.
554, statement of facts cannot be filed before conclusion of trial;
Lockett V. Schurenberg, 60 Tex. 611, statement of facts in bills ef
exceptions should be handed to judge within ten days after trial;
Int. & G. N. Ry. v. Underwood, 62 Tex. 23, statement filed after ad-
journment of court for term will not be considered; Harrison v. State,
16 Tex. Ap. 329, attorney general's statement presented within statu-
tory time is properly filed; Golden v. State, 22 Tex. Ap. 12, 2 S. W.
536, bill of exception may be filed during term if presented fritkin
1175 NOTES ON TEXAS REPORTS. 58 Tex. 456-462
statutory time; Ellis v. Ellis, 5 Tex. Civ. 50, 23 S. W. 998, assignments
of error presented within statutory time will be considered though
not filed till later.
68 Tex. 456-462, SABINE ETC. BY. ▼. JOACfHIMI.
Measore of Damages for Growing Crop is difference between th»
value of the property before the injury and immediately after.
Reaffirmed in Jones v. George, 61 Tex. 361, 48 Am. Rep. 293; Gulf
etc. Ry. v. Hedick (Tex. Sup.), 7 S. W. 355; Trinity etc. Ry. v.
Schofield, 72 Tex. 498, 10 S. W. 576; Mo. Pac. Ry. v. Rabb, 3 Tex.
Ap. Civ. 65; Mo. Pac. Ry. v. Johnson, 3 Tex. Ap. Civ. 335; Ward v.
Chicago etc. Ry., 61 Minn. 451, 63 N. W. 1105. Approved in Ray-
wood Rice etc. Co, v. Langford, 32 Tex. Civ. 405, 74 S. W. 928,
damages for failure to supply water, difference between actual value
of crop and probable net value had water been furnished; I. & G. N.
R. R. V. Saul, 2 Tex. Ap. Civ. 613, holding plaintiff is entitled to
compensation for actual loss; Fagan v. Whitcomb (Tex. Ap.), 14 S.
W. 1019, landlord is only entitled to damages for the market value
of reversion for injuries committed by the tenant during a lease;
Ulrick V. Dakota Loan etc. Co., 3 S. D. 48, 51 N. W. 1025, holding
measure of damages for permanent injury is diminished value on
account of injury.
Inquiry as to Damages to Growing Crops should be confined to time
and place of injury, and not continued to date of maturity of crop.
Reaffirmed in Lester v. Highland Boy Gold Min. Co., 27 Utah, 474,
101 Am. St. Rep. 988, 76 Pac. 342, Wamble v. Graves, 1 Tex. Ap. Civ.
229, and Texas etc. Ry. v. Bayliss, 62 Tex. 572, 574. Approved in
Texas etc. R. R. v. Young, 60 Tex. 204, damage to growing crops from
fire is measured by value at time of fire. See note, 12 L. R. A. (n. s.)
272.
In Suit for Damages for Injnry to Land caused by overflow due
to negligent construction of railroad, profits are not recoverable, but
only the cost and expense of restoring land to the former condition
and loss occasioned by being deprived of the same, with interest.
Approved in Cox v. Odell, 1 Cal. Ap. 685, 82 Pac. 1087, applying
rule to damage from retention and discharge of surface water on ad-
joining land; Fell v. Union Pac. Ry. Co., 32 Utah, 107, 88 Pac. 1005,
allowing interest on damage to shipment from time of delivery;
Miller v. Jannett, 63 Tex. 87, profits cannot be considered in measur-
ing damages for illegal attachment; Houston etc. Ry. v. Hill, 63
Tex. 387, 51 Am. Rep. 645, number of excursionists transported on
similar excursions not admissible to measure damages; Galveston
etc. Ry. V. Home, 69 Tex, 649, 9 S. W. 442, plaintiff is entitled to
interest on value of property from time of loss; Trinity etc. Ry. v.
Schoenfield, 72 Tex. 499, 10 8. W. 577, injured party can recover for
use of property temporarily damaged; Fagan v. Whitcomb, 4 Tex.
Ap. Civ. 48, 14 S. W. 1019, landlord cannot recover as damages amount
necessary to put property in statu quo. See notes, 18 L. R. A. 454;
17 L. R. A. 427.
In Suit Against Bailroad to Recover Damages for injuries to crops
caused by overflow due to negligent construction of road, court should
instruct as to measure of damages for partial loss.
Approved in Gulf etc. Ry. v. Jones, 1 Tex. Civ. 375, 21 S. W. 146,
no error where court correctly instructs jury concerning correct
measure of damages, but omits method of computing it.
58 Tex. 462-475 N0TE8 ON TEXAS BEPORTS. U7^
68 Tex. 462-468, CORPUS OHBISTI ▼. WOESSNEB.
Warrants Issued by Oity for Current Expenses, when they do not
exceed revenues derived from taxation or other sources which citj
may have, do not create a debt prohibited by law.
Reaffirmed in Terrell v. Dessaint, 71 Tex. 774, 9 S. W. 594; Spil-
man v. Parkersburg, 35 W. Va. 619, 14 S. E. 283. Approved in
City of Tyler v. Jester, 97 Tex. 360, 78 S. W. 1062, applying rule to
new notes for old debts; City of Houston v. Glover, 40 Tex. Civ. 182,
89 S. W. 427, applying rule to employment of architect for proposed
public building; Terrell v. Dessaint, 71 Tex. 773, 9 8. W. 593, hold-
ing statute applies to all cities without regard to number of inhabi-
tants; McNeal v. Waco, 89 Tex. 88, 33 S. W. 324, holding word
"debt" means any pecuniary obligation except for current expenses;
Sandmeyer v. Harris, 7 Tex. Civ. 519, 27 S. W. 286, municipal debt
cannot be created when current revenues are more than expenses;
Cleburne v. Cleburne Water Co., 14 Tex. Civ. 232, 37 S. W. 656, ren-
tal of hydrants is a current expense and payable out of general fund;
Berlin Iron etc. Co. v. San Antonio, 62 Fed. 890, construction of a
bridge is not a current expense payable by warrant; Wade v. Travis-
Co., 81 Fed. 744, holding statute permitting incurring of debt applies
to all cities. See note, 23 L. R. A. 407.
Distinguished in Dallas v. Brown, 10 Tex. Civ. 621, 31 S. W. 302,
debt for current expenses must run concurrently with current re-
sources.
MandamuB Lies at Suit of Judgment Creditor of Municipality, who-
was holder of city warrant, to compel aldermen to pay over to him
surplus revenues of city, over its current expenses, at end of each
year, until hie judgment and interest is satisfied.
Approved in Sherman v. Smith, 12 Tex. Civ. 583, 35 a W. 296,
municipal creditor is not entitled to warrant on general fund until
current expenses are paid.
Distinguished in Pendleton v. Ferguson, 99 Tex. 302, 89 S. W. 761,
ordinance preferring expenses of previous years invalid; City of
Tyler v. Jester, 97 Tex. 361, 78 S. W. 1063, debt incurred by city
for water valid, though not paid during current year.
68 Tex. 468-472, DEKSON ▼. LOVE.
Vendees are Entitled to Credit of Sums paid for outstanding title
in action on note given for purchase price.
Reaffirmed in Dillahunty v. By. Co., 59 Ark. 638, 28 8. W. 658.
Approved in Williams v. Finley, 99 Tex. 473, 90 S. W. 1089, vendor**
improvements in good faith some consideration for purchase money
notes, though title in state; Oury v. Sanders, 77 Tex. 281, 13 S. W.
1032, vendee entitled to credit on his note of amounts paid for out-
standing title.
An Outstanding Title Purchased by a Vendee in possession of land
under a title deed inures to the vendor's benefit.
Approved in McGregor v. Tabor (Tex. Civ.), 26 8. W. 444, defend-
ant's title acquired by limitation, when there is a superior title to
his warrantor's, inures to the warrantor's benefit.
58 Tex. 472-476, MASTEBSON ▼. OUNDIFF.
Privilege of Being Sued in County of His Beeidence is personal to>
defendant, and is waived unless specially claimed by him.
1177 NOTES ON TI5XA.S BEPOETS. 58 Tex. 476-494
Approved in Bonner v. Hearne, 75 Tex. 252, 12 S. W. 40, suit for
appointment of receiver may be brought in any county. See note,
94 Am. Dec. 224.
Proceeding to Bevlye Judgment by Scire Facias is a continuation
of the case, and should be brought in county where judgment is
recorded.
Approved in Schmidtke v. Miller, 71 Tex. 106, 8 S. W. 638, reaf-
Arming rule; Mundine v. Brown (Tex. Civ.), 23 S. W. 90, permitting
plaintiff by writ of scire facias filed in 1892 to revive a judgment
rendered in 1875. See note, 122 Am. St. Eep. 72.
Scire Facias may be Sued Oat on a judgment which, though not
dormant, has lost its lien.
Beaffirmed in Anderson v. Boyd, 64 Tex. 109; Wonderly v. Lafay-
ette Co., 74 Fed. 704. Approved in Foster v. Smith, 66 Tex. 681, 2
S. W. 745, plaintiff can have judgment revived where it was dormant
by filing amended petition; Millican v. Ware, 84 Tex. 312, 19 S. W.
476, sale under execution issued nine years after judgment is valid
when judgment had loert its lien; Lafayette Co. v. Wonderly, 92 Fed.
317, writ of scire facias is not barred by existence of unsatisfied judg-
ment; Stevens v. Stone, 94 Tex. 418, 60 S. W. 959, writ of scire
facias will be granted where second judgment is more available. See
note, 122 Am. St. Bep. 79.
68 Tex. 476-482, HOUSTON ETC. BT. ▼. ADAMS.
Grantor cannot Recover Damages for depreciation in value of ad-
joining land by use of right of way, provided road is properly con-
structed.
Approved in I. ft G. N. B. B. v. Best, 2 Tex. Ap. Civ. 337, reaf-
firming rule; Cane Belt B. Co. v. Bidgeway, 38 Tex. Civ. Ill, 85 S.
W. 497, applying rule irrespective of grantor's right to permit use of
street; San Antonio etc. By. v. Lougorio (Tex. Civ.), 25 S. W. 1021,
1022, damages when the power of eminent domain is exercised in-
cludes present and future damages; T. & St. Louis B. B. v. Jarrell,
60 Tex. 270, citing case generally in question of damages, but mak-
ing no decision on the question in the ease at bar.
58 Tex. 483-^90, GABZA ▼. BAEEB.
District Court has Jurisdiction during the term to revise and change
its own orders.
Beaffirmed in Grubbs v. Blum, 62 Tex. 427, Blackburn ▼. Knight,
81 Tex. 332, 16 S. W. 1078, and Ellis v. Harrison, 24 Tex. Civ. 15,
56 S. W. 593. Approved in Churchill v. Martin, 65 Tex. 368, dis-
trict court has jurisdiction during term although appeal bond is
filed; Sharp v. Elliott, 70 Tex. 669, 8 S. W. 490, purchasers at partition
suit are bound by subsequent proceedings during the term.
58 Tex. 490-494, CHANGE ▼. BBAKCH.
Pre-emptor Fencing In Part of Adjoining Leagae by mistake, which
he acknowledges and claims no title, is not an adverse possessor.
Beaffirmed in Satterwhite v. Bosser, 61 Tex. 172. Approved in
Forsod V, Golson, 77 Tex. 669, 14 S. W. 233, absence of adverse asser-
tion to land will not sustain plea of limitation; Nichols v. Nichols^
79 Tex. 336, 15 S. W. 273, possession by grantor acknowledges title
in grantee is not adverse to grantee; Texas etc. By. v. Wilson, 83 Tex.
157, 18 S. W. 326, holder of right of way not paying for same but
58 Tex. 494-516 NOTES ON TEXAS BEPORTS. 1178
admitting that he intended to do so is not an adverse holder; Warren
V. Frederichs, 83 Tex. 384, 18 S. W. 752, vendee of squatter having
preference of purchasing the land is not an adverse holder. See note,
15 L. R. A. (n. fl.) 1186, 1192, 1206.
Conclusions of Judge found and filed under statute must be taken
as embracing facts proven in absence of statement.
Approved in Cousins v. Grey, 60 Tex. 348, application of law to
statement made by judge may be corrected on appeal; Madden ▼.
Madden, 79 Tex. 597, 15 S. W. 481, holding statement of judge must
be regarded in absence of statement of facts.
Distinguished in Kimball v. Houston Oil Co., 100 Tex. 340, 99 S. W.
854, no such presumption where there are findings.
68 Tex. 494-503, OOOPEB ▼. AUSTIN.
Time and Iiong Acquiescence are not necessary to validity of parol
agreement between adjoining proprietors as to boundaries of their
land.
Approved in Lecomte v. Toudouze, 82 Tex. 214, 27 Am. St. Rep.
876, 17 S. W. 1050, Bailey v. Baker, 4 Tex. Civ. 396, 23 S. W. 455,
both reaffirming rule; Kampman v. Heintz (Tex. Civ.), 24 S. W. 330,
parties are bound by a parol agreement in fixing a disputed bound-
ary line, whether it is true or not.
Equity will not Afford Belief on ground of mistake of fact to party
agreeing to disputed boundary line, where both acted in good faith.
Approved in Levy v. Maddox, 81 Tex. 213, 16 S. W. 878, agreed
boundary line will not be disturbed.
Distinguished in Cartmell v. Chambers (Tex. Civ.), 54 S. W. 364,
as not applicable to the facts.
68 Tex. 608-510» FIiOYD ▼. BUST.
Where, in Suit by Administrator on Note given by defendant for
land bought at probate sale, it was shown that at sale defendant
presented claim to administrator and asked how much land it could
buy, held that answer of administrator, after a hasty calculation, under
such circumstances would be an expression of opinion rather than
proposition to receive claim in part payment.
See note, 70 Am. Dec. 583.
58 Tex. 511-516, IiOOSCAN ▼. HABBIS COUNTT.
Commissioner's Court has Exclusive Power to cause to be instituted
suits in name of county, except where right is conferred in special
cases to other officers.
Approved in Kerby v. Board of County Commissioners, 71 Kan. 686,
81 Pac. 504, reaffirming rule; Smith v. Mosely, 74 Tex. 633, 634, 12
S. W. 748, use of name of person as plaintiff having no connection
with controversy should be stricken out as. surplusage; Terrell v.
Greene, 88 Tex. 543, 31 S. W. 633, county attorney is not relieved from
prosecuting suits brought by commissioner; Anderson v. Walker (Tex,
Civ.), 49 S. W. 947, general management of county affairs is vested in
the commissioners' courts of the several counties.
Distinguished in Wall v. McConnell, 65 Tex. 399, county judge can
maintain action against county treasurer to recover fees when county
commissioners' court refused to sue; Bland v. Orr, 90 Tex. 496, 39
S. W. 559, their general powers discussed and held that commissioners
have no control over finances of county.
1179 NOTES ON TEXAS BBPOETS. 58 Tex. 516-531
District Attorney has No Bight to Institnte Suit to restrain pay-
ment of drafts issued by county clerk on county treasurer.
Approved in Austin v. Johns, 62 Tex. 183, statute allowing city
attorney percentage of amount0 collected as additional fee to stipu-
lated salary is valid.
Distinguished in Grady v. Rogers, 2 Tex. Ap. Civ. 198, rule not
applicable where the right of district attorney to commence the suit
exists by express statute.
58 Tez. 616-520, DAVIS ▼. KENNEDY.
Notarial Certlflcate to Wife's Separate Acknowledgment, made in
compliance with statute, cannot be attacked for fraud where purchaser
neither participated in fraud nor knew of its existence.
Reaffirmed in Webb v. Burney, 70 Tex. 325, 7 S. W. 843; Stallings
▼. Hullum, 79 Tex. 425, 15 S. W. 678; Hagan v. Conn (Tex. Civ.),
40 S. W. 20; Herring v. White, 6 Tex. Civ. 261, 25 S. W. 1017. Ap-
proved in Ragland v. Wisrock, 61 Tex. 394, deed obtained from wife
by fraud, of which grrantee has notice, is void; Cole v. Bammel, 62
Tex. 112, married woman can avoid deed, having proper certificate
for fraud, where vendee is charged with notice; Stringer v. Swenson,
63 Tex. 13, wife cannot set aside deed of trust where there was no
fraud; Elmendorf v. Tijada (Tex. Civ.), 23 S. W. 935, one executing
a deed in ignorance of its character and fraud of grantor is bound
by her action as against an innocent mortgagee; Hickman v. Hoffman,
11 Tex. Civ. 607, 33 S. W. 259, vendees giving adequate consideration
for conveyance are not affected by fraud of husband; McFalls v.
Brown (Tex. Civ.), 37 S. W. 785, an acknowledgment of a notary not
in compliance with the statute does not vitiate a deed in the absence
of proof that vendees had notice; Henke v. Stacy, 25 Tex. Civ. 276,
61 S. W. 511, holding third parties cannot question notarial certificate.
Distinguished in Caffey v. Caffey, 12 Tex. Civ. 619, 35 S. W. 740,
rule not applicable to certificate to deed to trustee for benefit of
husband.
Miscellaneous. — ^H. R. E. etc. Assn. ▼. Cochran, 60 Tex. 625, miscited.
58 Tex. 521-524, WATKIN8 ▼. WILIJS.
Notes Entitled to Tliree Days of Grace will not be barred by statute
of limitation till four years from the fourth day after maturity.
Reaffirmed in Hamilton Gin etc. Co. v. Sinker, 74 Tex. 53, 11 S.
W. 1057; Smith v. Dickey, 74 Tex. 63, 11 S. W. 1050; Carey etc.
Lumber Co. v. First Nat. Bank, 86 Tex. 301, 24 S. W. 261; McDowell
r. Nicholson, 2 Tex. Ap. Civ. 204; First Nat. Bank v. Beck, 2 Tex.
Ap. Civ. 732. Approved in Carey etc. Lumber Co. v. First Nat. Bank,
86 Tex. 300, 24 S. W. 260, holding protest should be brought on last
day of grace; Farmers* Nat. Bank v. Salina Paper etc. Co., 58 Kan.
209, 48 Pac. 864, maker of note has all of day on which it matures to
pay it. See note, 49 L. R. A. 208.
58 Tex. 524-531, BLUM T. SCHBAM.
Bill of Exception Contained In Statement of Facts which was not
signed and approved within ten days after conclusion of trial will not
be considered in appellate court.
Reaffirmed in Putnam v. Putnam, 3 Ariz. 192, 24 Pac. 324; Lockett
V. Schurenberg, 60 Tex. 611; Int. & G. N. Ry. v. Underwood, 62 Tex.
23; Texas etc. Ry. ▼. Johnson, 2 Tex. Ap. Civ. 154. Approved in
58 Tex. 532-550 NOTES ON TEXAS BEPORTS. 1180
WilliB V. Donae, 61 Tex. 589, bill of exception, when not filed in time,
will not be considered, though stipulated; Harrison v. State, 16 Tex.
Ap. 329, allowing statement filed by attorney general within statu-
tory time; Golden v.. State, 22 Tex. Ap. 12, 2 S. W. 536, bill of excep-
tion signed by judge within statutory time may be filed during term;
Exon V. State, 33 Tex. Cr. 467, 26 S. W. 1089, appellant may file bill
of exceptions during term after refusal of judge to sign it within
statutory time.
Attaching Creditor is Entitled to Injunction restraining sheriff who
has levied on goods under execution fraudulently obtained.
Approved in Love v. Powell, 67 Tex. 17, 2 S. W. 457, petition for
injunction should be continued for trial on merits after sworn answer
is filed; Martin Brown Co. v. Perrill, 77 Tex. 205, 13 S. W. 977, holding
error to give charge which does not ckarly present that fact of con-
fession of judgment tending to delay creditors will not avoid judg-
ment; Barker v. Abbott, 2 Tex. Civ. 149, 21 S. W. 73, attachment con-
sented to by one partner in favor of one creditor protects his levy
upon firm property. See notes, 30 L. E. A. 236; 20 L. E. A. 446.
68 Tex. 532-535, MOODT ▼. LEVY.
Motion to Quash Attachment, where affidavit doea not follow the
statute nor its equivalent, should be granted.
Approved in Perrill v. Kaufman, 72 Tex. 215, 12 S. W. 125, affidavit
for attachment must comply with statute.
68 Tez. 636-538, BUBNETT V. SUIiLIVAN.
Judgment Against Partnership and Partner served with process does
not necessitate a discontinuance as to other partner, as it operates as
an abandonment to him.
Eeaffirmed in Glasscock v. Price, 92 Tex. 274, 47 S. W. 966. Ap-
proved in State v. Cloudt (Tex. Civ.), 84 S. W. 416, voluntary appear-
ance by partners binds firm as well as partners appearing; Staacke v.
Vi?\alker (Tex. Civ.), 73 S. W. 409, judgment final though only one
partner served; Frank v. Tatum, 87 Tex. 207, 25 S. W. 410, court has
no jurisdiction of copartnership property where individual members
are not parties to suit; Lovelady v. Bennett .(Tex. Civ.), 30 S. W. 1125,
heirs of a deceased partner are not necessary parties to a suit on
vendor's lien notes executed by the partnership; Be Camp v. Bates
(Tex. Civ.), 37 S. W. 645, a judgment rendered against all members
of a firm authorizes an execution against the firm assets; Sugg v.
Thornton, 132 U. S. 531, 40 Sup. Ot. Eep. 166, 33 L. 448, attachment
will not lie against property of individual member of firm for firm
debts.
68 Tez. 63&-545, WEYEB ▼. WEONEB.
Evidence of Insulting Language used by and acts of defendant
which on premises are indication that owner was attempting to con-
ceal property acquired by crime is admissible to show aggravation of
trespass.
See note, 19 L. B. A. (n. s.) 1034.
68 Tex. 645->550, LUFKIN v. QALVESTON.
Homestead can be Subjected to Sale to satisfy lien created by
assessment to pay for construction of sidewalks.
Approved in Bordages v. Higgins, 1 Tex. Civ. 49, 19 S. W. 448,
homestead is liable for sale to pay assessments levied by city council
1181 NOTES ON TEXAS BEPOBTS. 58 Tex. 551-662
for street improvementB; Adams v. Fisher, 63 Tex. 656, city may
compel abutting lot owner to defray portion of expenses of improv-
ing or paving street by an assessment.
Distinguished in Higgins v. Bordages, 88 Tex^ 463, 464, 465, 466,
467, 63 Am. St. Bep. 776, 777, 778, 31 S. W. 64, 55, homestead not
liable for sale for cost of building a sidewalk, as this is not a tax;
Storrie v. Cortes, 90 Tex. 285, 292, 38 8. W. 155, 35 L. B. A. 666,
homestead not subject to sale by one holding a claim for street im-
provements.
Homestead, Like Any Other Beal Property, is liable to be sold for
taxes due on it.
Beafilrmed in Wright v. Straub, 64 Tex. 66. See notes, 45 Am. St.
Bep. '387; 53 Am. St. Bep. 778.
58 Tex. 651-654, BAMTHUK v. HALFMAN.
Intent to Dedicate Land for Purpose of Highway must be shown
by acts and declarations of owner showing clearly and unmistakably
intent to dedicate land absK)lutely and irrevocably to use of public.
Approved in De Oeorge v. Goosby, 33 Tex. Civ. 189, 76 S. W. 68,
where owner simply faced tenant houses on alleged street; Day v.
Chambers, 62 Tex. 192, no dedication can be maintained where gran-
tor's deed is not fully set out; Fort Worth etc. By. v. Queen City
By.. 71 Tex. 175, 9 8. W. 99, owner of land can dedicate right of way
by mutual contract; Evans v. Gulf etc. By., 9 Tex. Civ. 126, 28 8. W.
904, plaintiff is bound by dedication when defendant accepts and
builds a street-car line on same; Gillean v. Frost, 25 Tex. Civ. 375,
61 S. W. 347, owner is bound by dedication where his intention is
shown by plats and declarations.
Owner may Permit Public for Any Length of Time to use a way
without any intention of dedication.
Approved in Worthington v. Wade, 82 Tex. 28, 17 8. W. 521, re-
affirming rule; Poole v. Dulaney, 19 Tex. Civ. 119, 46 8. W. 277,
mere permission does not constitute dedication; Gulveston etc. By.
V. Bandat, 18 Tex.. Civ. 601, 45 8. W. 942, one seeking to have a
public road opened by commissioners' court proceedings is not es-
topped from asserting private right of way at same point after ad-
verse decision. See note, 57 Am. St. Bep. 758.
Highway Created by Dedication by owner of lands for that purpose
when same has been accepted and used as such by public.
Approved in Albert v. Gulf etc. By. Co., 2 Tex. Civ. 667, 21 8. W.
780, following rule.
68 Tex. 564-^62, TIMMINS V. BONNEB.
District Court has Jurisdiction of Action against sureties on a
guardian's bond after principal ceased to be guardian.
Approved in Handy v. Woodhouse (Tex. Civ.), 26 8. W. 40, re-
affirming rule; McClellan v. Mangum, 33 Tex. Civ. 195, 75 8. W.
841, probate court has no jurisdiction to determine amount due estate
from deceased executor; Young v. Gray, 60 Tex. 543, district court
cannot review action of county court where ward has died; Edwards
V. Mounts, 61 Tex. 400, probate court has no jurisdiction to deter-
mine ownership of insurance policy; Franks v. Chapman, 61 Tex. 580,
probate court has jurisdiction of contest to probate of will; Fort v.
Fitts, 60 Tex. 595, 1 8. W. 564, district court has jurisdiction of
action against sureties of administrator's bond; Carpenter ▼. Solo-
58 Tex. 562-570 NOTES ON TEXAS EEPOETS. 11S2
man, 4 Tex. Ap. Civ. 54, 14 S. W. 1074, probate court has jurisdiction
of actions against guardian after ward's marriage; Bicbardson v.
Knox, 14 Tex. Civ. 403, 37 S. W. 190, reversing judgment rendered
hj probate court in action on guardian's bond; Attridge v. Maxej,
15 Tex. Civ. 135, 39 S. W. 322, dismissing action in which estate had
no interest; Bopp v. Hansford, 18 Tex. Civ. 343, 344, 45 S. W. 746,
747, probate court can determine amount due ward by guardian in
settling his account; Poole v. Delaney (Tex. Civ.), 46 S. W. 277,
mere permissive use of a way does not constitute dedication.
No Appeal can be Entertained where lower eourt has no jurisdic-
tion.
Approved in Hall v. McGiU (Tex. Civ.), 38 S. W. 828, reaffirming
rule; McMahon v. City Bank (Tex. Civ.), 61 S. W. 953, reversing
judgment where lower oourt has no jurisdiction.
In Adopting New Oonstitation, makers are presumed to have con-
sidered construction of statutes adjudicated under similar provisions
of former constitution.
Approved in Nicholson v. Harvey (Tex. Civ.), 25 S. W. 459, county
court has no jurisdiction of action brought two years after close
of administration against administrator to set aside probate sales
of land; Scott v. State, 6 Tex. Civ. 345, 346, 25 S. W. 338, judicial
construction of a statute becomes part of new law on its re-enact-
ment.
Probatft Court lias No Jurisdiction Over Snit against sureties on
guardianship bond to recover moneys due on judgment recovered
against guardian after elose of guardianship.
Approved in Carpenter v. Solomon (Tex. Civ.), 14 S. W. 1074, a
female ward on marriage may sue her guardian in county of his
residence, though appointed guardian in another county; Read ▼.
Henderson (Tex. Civ.), 57 S. W. 80, statute of limitation is a bar
to ward's claim after termination of guardianship; Allen v. Stovall,
95 Tex. 623, 63 S. W. 867, statute of limitation runs from discharge
of guardian.
58 Tex. 562-^667, LOWELL ▼. BALL ETC. CO.
No Appeal Lies from Judgment of district court rendered in ac-
cordance with mandate of supreme court.
Approved in Wright v. Gorman-Wright Co., 152 Fed. 410, reaffirm-
ing rule.
58 Tex. 567-570, BASS V. SEVIEB.
Powers of Attorney Over Thirty Years Old at date of trial are
ancient instruments and are admissible to prove chain of title.
Reaffirmed in Eeuter v. Stuckart, 181 El. 537, 54 N. E. 1017.
Approved in Holmes v. Coryell, 58 Tex. 688, ancient instrument
coming from proper custody is admissible without proof of execu-
tion. See note, 35 L. B. A. 344.
A Judgment Bendered on Plea of Limitation against one tenant
in common is not conclusive on that issue in a subsequent proceed-
iiig against a cotenant not a party to the first action.
Approved in Davidson v. Wallingford (Tex. Civ.), 30 S. W. 20O,
reaffirming rule; Higgins Oil & Fuel Co. v. Snow, 113 Fed. 437, apply-
ing rule to compromise judgment procured by coheirs.
1183 NOTES ON TEXAS REPORTS. 58 Tex. 570-579
58 Tex. 570-679, OANTAGBEIi v. VON LUPIN.
Payment of Taxes, without regard to assessment thereof, is
sufficient to support defense of limitations for five years.
Reaffirmed in Juck v. Fewell, 42 Fed. 518, 519; Swenson v. Mynair,
79 Fed, 611. Approved in Haskins v. Wallet, 63 Tex. 220, evidence
of witness paying taxes is admissible without regard to assessment.
See note, 15 L. R. A. (n. s.) 1179.
Distinguished in Button t. Thompson, 85 Tex. 119, 19 S. W. 1028,
taxes must be paid on land in controversy.
Defendant is not Beqnired to Live upon Land to support his plea
of limitation if he fences in the land.
Reaffirmed in Hodges v. Ross, 6 Tex. Civ. 440, 25 S. W. 976. See
note, 28 Am. St. Rep. 161.
Mere Intruder upon Land Holds Adversely only to limits of his
actual inclosure.
Reaffirmed in Evans v. Foster, 79 Tex. 51, 15 S. W. 171. Ap-
proved in Turner v. Moore, 81 Tex. 208, 16 S. W. 930, adverse
possession does not extend to lands not actually possessed; Beau-
mont Lumber Co. v. Ballard (Tex. Civ.), 23 8. W. 921, plaintiff
cannot recover damages for injury to land under his possession, but
not belonging to him; Heironimus v. Duncan, 11 Tex. Civ. 615, 33
S. W. 289, possession by lessee of actual owner of part of land is
constructive possession of all. See note, 15 L. R. A. (n. s.) 1247.
Distinguished in Pearson v. Boyd, 62 Tex. 544, holder by limita-
tion of ten years is entitled to all land claimed; Nativel v. Ray-
mond (Tex. Civ,), 59 S. W. 312, adverse possession for ten years
extends to amount of lands claimed.
Deed Under Whldi Defendant in Trespass to try title holds is
admissible under plea of limitations, though authority of vendor
who assumed to convey under power of attorney is not shown.
Approved in Wille v. Ellis, 22 Tex. Civ. 467, 54 S. W. 925, grantee
under deed duly recorded for ten years need not produce power of
vendor; Peden v. Crenshaw (Tex. Civ.), 81 S. W. 372, city's deed
to alley, which it did not own, sufficient basis for five years' limi-
tation. See note, 125 Am. St. Rep. 305.
Deed Describing Land as "All Land" which vendor had in cer-
tain county is sufficient to support plea of limitations, when it is
shown that vendor had a recorded deed describing the particular
land claimed.
Approved in Harriss y. Howard, 126 Ga. 331, 55 S. E. 61, uphold-
ing sufficiency of devise of "all my land"; Buckner v. Vancleave,
34 Tex. Civ. 314, 78 S. W. 542, sheriflPs return valid if land can be
identified with aid of extrinsic evidence; Schleicher y. Gatlin, 85 Tex.
276, 20 S. W. 123, general descriptions in deeds are sufficient notice
of adverse possession; Masterson v. Todd, 6 Tex. Civ. 135, 24 S. W.
684, description of land depending upon future acts for its identity
is not sufficient; Alexander v. Newton, 11 Tex. Civ. 621, 33 S. W.
306, statute of limitations will apply only to land sufficiently de-
scribed. See note, 88 Am. St. Rep. 710.
Open, Notorious, and Adverse Possession under lease from vendee
under recorded deed is sufficient to sustain plea of limitation where
plaintiff acquiesced in such possession for statutory period.
Approved in Jacks v. Dillon, 6 Tex. Civ. 196, 25 S. W. 64fi, recov-
ery is barred by adverse possession through lessee under recorded
68 Tex. 588-810 NOTES ON TEXAS EEPOETS. 1184
deeds and exclasive nse of part of land. See note, 15 L. B. A. (b.
8.) 1191, 1197, 1209.
One Xaiitering TTnder Color of Title may hold to the boundanet
g^ven in his deed.
Distinguished in Zepeda v. Hoffman, 31 Tex. Civ. 314, 72 S. W.
444, where such boundaries conflict with older survey.
68 Tex. 689^91, FARLEY ▼. DESLONDE.
Under Bevised Statutes, Article 1272, no inquiry can be made
into means of knowledge of person making affidavits in support of
motion for change of venue.
Approved in Daugherty v. Harris, 2 Posey U. C. 469, reaffirming
rule.
ObjectionB to Affidavit In Support of Change of Venue for defect
in jurat will not be considered when made for first time in supreme
court.
Approved in Flanagan y. Pearson, 61 Tex. 308, objection to re-
turn of verdict not made in lower court will not be considered on
appeal; Caswell y. Greer, 4 Tex. Civ. 660, 23 S. W. 331, statement
of facts not signed will not be considered on appeal.
Conveyance Describing Land as lower or south half of premium
league No. 2 from mouth of Elm <*reek conveys south half of
league No. 2, counting from Elm creek.
Beaffirmed on subsequent appeal in Farley v. Deslonde, 69 Tex.
460, 6 S. W. 787.
58 Tex. 691-603, JOHN ▼. BATTLE.
Pnrchasero With Notice at Bankrupt Sale under bankruptcy pro-
ceedings against husband acquire no interest as against wife in lands
bought with separate funds of wife and held for a time by husband.
Approved in Shannon v. Gray, 59 Tex. 263, purchaser at bankrupt
sale of abandoned homestead takes title; King v. Summerville (Tex.
Civ.), 80 S. W. 1062, recitals in deed should have put purchaser on
Inquiry. See note, 6 L. B. A. (n. s.) 384.
Wife la not Estopped from Claiming Property against bankrupt
creditors where there is controversy regarding her interest in prop-
erty.
See notes, 86 Am. Dec. 639; 6 L. B. A. (n. s.) 385.
Assignment That the "Court Erred in not granting a new trial on
the grounds stated in the application therefor,'^ insufficient.
Approved iii St. Louis etc. B. Co. v. Dobie (Tex. Civ.), 75 S. W.
341, assignment that "the trial court erred in overruling defendant's
motion for a new trial," too general; Scott v. Farmers* etc. Nat.
Bank (Tex. Civ.), 66 S. W. 492, assignment of error in overruling
motion for new trial and motion for judgment non obstante vere-
dicto, on grounds stated in motions, too general.
68 Tex. 603-610, BOSS v. McOOWEN.
Statement of Facta not Filed within statutory time will be dis-
regarded unless order of court is entered before adjournment per-
mitting it to be filed after adjournment.
Beaffirmed in Lemon v. Ward, 3 Ariz. 223, 73 Pac. 445; Lanier v.
Ferryman, 59 Tex. 107; Trewitt v. Blundell, 59 Tex. 254; Texas etc.
By. V. McAllister, 59 Tex. 362; Hill v. Osborne, 60 Tex. 391; Lockett
v. Schurenberg, 60 Tex. 611; Marx v. Caldwell, 62 Tex. 65; Caswell
K«-
1185 NOTES ON TEXAS REPOBTS. 58 Tex. 610-625
v. Greer, 4 Tex. Civ. 680, 23 S. W. 331; Matthews ▼. Boydstun (Tex.
Civ.), 31 S. W. 816; Seville v. Rush (Tex. Civ.), 25 S. W. 1023. Ap-
proved in dissenting opinion in Matthews v. Boydstun (Tex. Civ.),
31 S. W. 821, majority holding appellate court will, of its own motion,
disregard a statement of facts not filed within the statutory time;
Baleigh ▼. Cook, 60 Tex. 440, transcript filed during vacation without
order must be disregarded; Galveston v. Dazet (Tex. Sup.), 16 S. W.
21, a statement will not be considered when the order extending time
to file it. was not filed; Blackshire v. State, 33 Tex. Cr. 161, 25 S. W.
771, order allowing transcript to be filed after adjournment must be
of record.
Appellate Ootut will not Oonsidar Charges in absence of statement
of facts.
Reaffirmed in Matthews v. Boydstun (Tex. Civ.), 31 S. W. 817;
Tarzomluck v. Grier (Tex. Civ.), 32 S. W. 237; Willis v. Smith (Tex.
Civ.), 39 S. W. 379; Houston v. Washington, 16 Tex. Civ. 505, 41 S.
W. 135; Brown v. Vizcaya (Tex. Civ.), 55 S. W. 191. Approved in
liockett V. Schnrenberg, 60 Tex. 610, assignments will not be con-
sidered in absence of statement of facts; Hill v. Gulf etc. Ry., 80
Tex. 435, 15 S. W. 1099, assignment of error cannot be considered in
absence of bill of exceptions.
Writ of Oertlonxi wUl not be Granted to perfect the record where
no excuse is offered for failure to do this before filing record.
Reaffirmed in Western Union Tel. Co. v. O'Keefe, 87 Tex. 428,
28 S. W. 946; Hulburn v. Harris, 2 Tex. Civ. 399; Grant v. Hill (Tex.
Civ.), 29 S. W. 251; Nasworthy v. Draper, 9 Tex. Civ. 651, 29 S. W.
557; Grant v. Hill (Tex. Civ.), 30 S. W. 957. Approved in Brewster
V. State, 40 Tex. Civ. 5, 88 S. W. 860, quaere, whether, under circum-
stances, motion to correct record should be granted on motion for
rehearing; Scott v. Cox, 36 Tex. Civ. 199, 70 8. W. 806, defect in
judgment cannot be urged for first time after statement of facts
stricken out; McMickle v. Texarkana Nat. Bank, 4 Tex. Civ. 212,
23 S. W. 429, records must be corrected before submission of cause;
Wichita Val. Ry. v. Peery (Tex. Civ.), 27 S. W. 751, McGee v. Berrien
(Tex. Civ.), 28 S. W. 463, and Western Union Tel. Co. v. O'Keefe
(Tex. Civ.), 29 S. W. 1137, all three reaffirming rule; Hayslip v.
Pomeroy, 7 Tex. Civ. 630, 32 S. W. 124, appellant must see that record
is complete before submission.
68 Tez. 610-616, ATCHISON ▼. OWEN.
Mere Inadequacy of Price, Standing Alone, will not authorize an-
nulment of sheriffs sale, yet sale will be closely scrutinized where
price is grossly inadequate.
Approved in Stark v. Ingram, 2 Posey U. C. 634, overruling ex-
ception to answer averring inadequacy of price; Leeper v. O'Dono-
hue, 18 Tex. Civ. 534, 45 S. W. 328, vacating sale where only two-
fifths of value was paid; Lee v. Texas etc. Ry., 22 Tex. Civ. 504, 55
S. W. 978, sheriffs sale set aside by creditor where price was inade-
quate and it was sold before advertised time.
58 Tez. 616-626, ANBSBSON OOUNTT v. KENNEDY.
District Court Under Equity Jurisdiction has power to issue all
writs necessary to enforce its own jurisdiction.
Reaffirmed in Kaufman Co. v. McGaughey, 3 Tex. Civ. 671, 21 S.
W. 263. Approved in Day v. Chambers, 62 Tez. 192, district court
1 Tez. Notoi— 75 f,SL
58 Tex. 625-^44 NOTES ON TEXAS EEPORTS. 1186
can issue injunction to enforce its jurisdiction to try titles; Seele v.
State, 1 Tex. Civ. 498, 20 S. W. 947, district court cannot issue writ of
prohibition to justice's court when not in furtherance of its jurisdic-
tion; Cook V. Texas etc. By., 3 Tex. Civ. 146, 22 S. W. 68, no injunc-
tion will issue to enjoin sale which will not cloud title.
Distinguished in Winstead v. Evans (Tex. Civ.), 33 8. W. 581, in-
stance where district court was held without jurisdiction to compel
justice to enter a judgment in his court.
IHfltTlct Court can Issue Writs of Injunction without limitation as
to amount of subject matter.
Eeaffirmed in Callaghan v. Tobin, 40 Tex. Civ. 451, 452, 90 8. W.
333; Alexander v. Holt, 59 Tex. 205; Hale v. McComas, 59 Tex. 487;
Robertson v. Breedlove, 61 Tex. 320; Chambers v. Cannon, 62 Tex.
294; Gibson v. Templeton, 62 Tex. 556; Stein v. Frieberg, 64 Tex. 272;
Galveston etc. Ry. v. Do we, 70 Tex. 3, 6 S. W. 792; Dean v. State,
88 Tex. 296, 31 S. W. 185. Approved in Walker v. Woody, 40 Tex.
Civ. 350, 89 S. W. 791, where petition asked for injunction, cross-
action for less than jurisdictional amount sustained; Ex parte Allison,
48 Tex. Cr. 636, 90 S. W. 494, 3 L. R. A. (n. s.) 622, district court
may enjoin gambling-house, though within jurisdiction of county
court; Payne v. Loving (Tex. Civ.), 69 8. W. 92, county court may
issue injunction though not necessary to enforce its jurisdiction;
Bourgeois v. Mills, 60 Tex. 77, district court can enjoin commissioner's
court from proceeding without authority of law; Bounds v. Kirven,
63 Tex. 161, district court can enjoin commissioner's court from act-
ing without compliance to law; Gulf etc. Ry. v^ Rawlins, 80 Tex. 581,
16 S. W. 431, district court could enjoin constable's sale where it is
only remedy; Gulf etc. Ry. v. Blankenbeckler, 13 Tex. Civ. 251, 35
8. W. 332, district court can enjoin justice's court where there is no
appeal from the judgment rendered; Lazarus v. SwafFord, 15 Tex.
Civ. 368, 369, 39 8. W. 389, 390, county court can enjoin sale for
taxes amounting to more than two hundred dollars and less than five
hundred dollars; Jackson v. Finlay (Tex. Civ.), 40 8. W. 428, county
court has jurisdiction to grant an injunction where the amount in-
volved is not sufficient to give it jurisdiction; Tucker v. Williams
(Tex. Civ.), 56 8. W. 586, district court can enjoin the execution
of a judgment rendered by the. county court where the amount in-
volved is not sufficient to give appellant right to appeal; Warren v.
Kohr (Tex. Civ.), 64 8. W. 65, district court can render judgment for
amount of justice's court judgment when judgment of lower court is
dormant.
Distinguished in Carlisle v. Coffee, 59 Tex. 392, county court has
no jurisdiction to restrain enforcement of justice court judgment for
less than twenty dollars.
68 Tex. 625-630, McFADDIN ▼. WILLIAMS.
Action for Bpecific Performance of an executory contract for con-
veyance of land will not lie after plaintiff's claims are barred by limi-
tation for twenty years.
Approved in Wilson v. Simpson, 68 Tex. 310, 4 8. W. 841, recovery
by heirs of obligee is an equitable proceeding, subject to plea of stale
demand.
58 Tex. 630-^44, GOLDMAN y. BLUM.
Assignees of Note are Chargeable Wltb Notice if by use of ordinary
diligence they could £nd relationship of assignor to note.
1187 NOTES ON TEXAS BEPOBTS. 58 Tex. 644-669
Approved in Harris Co. ▼. Campbell, 68 Tex. 27, 2 Am. St. Bep. .
470, 3 S. W. 246, assignment of a chose in action by direct transfer
or by order upon a certain fund is valid; Parker v. American etc.
Bank (Tex. Civ.), 27 S. W. 1073, indorsing on the back of a negotiable
instrument that it was given subject to a contract made it non^
negotiable; Avery v. Popper (Tex. Civ.), 34 8. W. 326, where all the
holders of partial assignments of a note are in court, equity will
enforce the demand; College Park Elec. Belt Line v. Ide, 15 Tex. Civ.
277, 40 S. W. 66, facts which would put a reasonably prudent man
upon inquiry is sufficient notice; Green v. Scottish- American Mort-
gage Co., 18 Tex. Civ. 291, 44 S. W. 322, interveners cannot complain
of judgment for plaintiff for less amount than notes sued on; Tex-
arkana etc. By. v. Hartford Ins. Co., 17 Tex. Civ. 501, 44 8. W. 534,
interveners can prosecute their suits against debtor after dismissal
by plaintiff.
In Gonstralng Written Instrnments all other instruments executed
at same time and having a bearing on matter in question, together
with notes or memoranda made at time matter was pending, are ad-
missible to show intent and purpose of instrument under considera-
tion.
Approved in Brooks ▼. Young, 60 Tex. 36, parol evidence is inad-
missible to designate the intention of parties to written instruments;
Harvey v. Cummings, 62 Tex. 190, character and extent of a non-
negotiable note must be fully pleaded; Watson v. Winston (Tex. Civ.),
43 S. W. 853, admitting a memorandum embracing terms of sale made
at the time of the transaction.
68 Tex. 644-666, MOBBILL ▼. BABTLETT.
Location of Land Acquired Under Valid Certificate, where field-
notes of survey have been returned to land office, is determined by
field-notes of survey as made on ground, and not patent.
Approved in Taylor v. Brown (Tex. Civ.), 39 S. W. 314, reaffirming
rule; Standlee v. Burkitt, 78 Tex. 620, 14 S. W. 1042, pre-emptor can-
not acquire title to vacant land when adjoining owners acted upon
view of no vacancy between them.
Defendant in Action to Becover Iiand is not entitled to recover
value of his improvements where he is not a purchaser in good faith.
Beaffirmed in Cooke v. Avery, 147 U. S. 395, 13 Sup. Ct. Bep. 348,
37 L. 215.
68 Tex. 666-662, WOODS ▼. B0BIN80K.
Intention of Qrantor Being Eatabllshed, all rules for construction
of grants must be governed by it.
Approved in Blum v. Bowman, 66 Fed. 886, eommissioners should
construct grant from any admitted calls.
Call in Survey for a^ Old 'Line actually marked on grdund wheji
patent issued will control a call for distance.
Beaffirmed in Besson v. Bichards, 24 Tex. Civ. 67, 58 8. W. 613. See
note, 129 Am. St. Bep. 1012.
68 Tex. 662-669, ESPET y. HEIDENHEIMEK.
Writ of Attachment murt State Amount of Indebtednen due with-
out reference to other presumptions arising on facts stated.
Approved in Evans v. Tucker, 59 Tex. 250, affidavit by plaintiff or
agent or attorney for writ of attachment must follow the statute;
58 Tex. 669-690 NOTES ON TEXAS EEPOETS. 1188
Joiner y. Perkins, 59 Tex. 302, attachment will be quashed when
amount of debt is not certain from petition or affidavit; Lewis t^
Stewart, 62 Tex. 355, two attorneys may make affidavits for attach-
ment, one to amount of indebtedness, and other to statutory require-
ments; Focke V. Hardeman, 67 Tex. 175, 2 S. W. 363, attachment will
be quashed for uncertainty in averments.
58 Tex. 669-675, KXNa v. T. B. ft INS. Ck>.
Holder of Pledged Property Having Bight to Sell Property on no-
tice after remand may sell at public auction without waiting for de-
pressed money market to rise.
Approved in Adouse v. Hutches, 32 Tex. Civ. 561, 75 S. W. 42,
holder of note may sue without selling stock given as security, if sale
not demanded; National etc. Bank v. Benbrook etc. Co. (Tex. Civ.),
27 S. W. 299, court cannot interfere with pledged property until the
pledge is paid. See notes, 79 Am. Dec. 501; 32 Am. St. Bep. 730; 53
li. R. A. 587; 43 L. B. A. 742, 758.
Distinguished in Muhlenberg v. City of Tacoma, 25 Wash. 55, 64 Pac.
931, holding invalid sale of city warrants at small fraction of value
while their validity was disputed.
68 Tex. 675-680, BOUBCIEB V. EDMONDSON.
Landlord Having a Preferred Lien by Law may foreclose his lien
for rent due without suing out a distress warrant.
Reaffirmed in Bandall v. Rosenthal (Tex. Civ.), 27 S. W. 907; June-
man v. Franklin, 67 Tex. 414, 3 8. W. 564; Wilkes v. Adler, 68 Tex.
693, 5 S. W. 499. Approved in Templeman v. Gresham, 61 Tex. 53,
landlord's lien is not dependent upon seizure by distress warrant;
Berkey etc. Furniture Co. v. Sherman Hotel Co., 81 Tex. 142, 16 a W.
810, landlord is a lien creditor by law; Beddiek v. Elliott (Tex. Civ.),
28 S. W. 44, a purchaser at an execution sale of (property seized by
distress warrant cannot intervene in suit between landlord and ten-
ant; McKee v. Sims, 92 Tex. 53, 45 S. W. 565, landlord is not liable
for damages where more goods are seized than sufficient to pay de-
mands; Duflfey V. Cagle, 3 Tex. Ap. Civ. 493, landlord can prove ad-
vances to lessee after distress warrant is quashed; Polk ▼. King, 19
Tex. Civ. 668, 48 S. W. 602, landlord can intervene in suit to foreclose
mortgage on growing crops; Watson v. Mirike, 25 Tex. Civ. 530, 61
S. W. 540, foreclosure of lien may be had without aid of distress war-
rant; Kelly V. Gibbs, 84 Tex. 146, 19 S. W. 381, description by attach-
ing creditor of amount and value of growing crops is not necessary.
Landlord not Having Access to Premises so as to make inventory
of property thereon may describe it generally in proceeding to enforce
landlord's lien.
Approved in HoUoway Seed Co. v. City Nat. Bank (Tex. Civ.),
47 S. W. 81, instance where judgment was held to sufficiently describe
the goods upon which the foreclosure was had.
Distinguished in Keating v. Stone etc. Live Stock Co., 83 Tex.
472, 29 Am. St. Rep. 673, 18 S. W. 798, sale by sheriff of corporation
shares by general description is void.
58 Tex. 680-690, HOLMES v. OOBYELL.
Question Being Once Decided on Former Appeal does not n«K»e»-
sitate a reconsideration.
Approved in Lowell v. Ball, 58 Tex. 566, supreme court reversea its
former rulings on rare occasions.
1189 NOTES ON TEXAS EEPOBTS. 68 Tex, 680-690
T6 Ihtrodiica In Evidence an InBtmrnent which Is attaoked <as a
forgery, partj must resort to common-law method of proving its ex-
ecution.
.Approved in Belcher v. Fox, 60 Tex. 580, copies of record relied
on to show existence of deed is secondary evidence; Schunior v.'
Bussell, 83 Tex. 95, 18 S. W. 489, copj of ancient instrument is not
admissible without proof of execution of original; Baylor v. TifUe-
bach, 20 Tex. Civ. 493, 49 S. W. 722, execution of deed may be proved
by circumstances after laying foundation for its introduction; Eman-
uel V. Gates, 53 Fed. 775, admitting certified copy of deed where pos-
session and payment of taxes are shown; Brown v. Simpson, 67 Tex.
231, 2 S. W. 644, error to admit certified copy of instrument not show-
ing date of registration.
Ancient Instrument Coming from Proper Custody presumes sugIi
custody affords evidence of delivery, and is admissible without proof
of execution.
Reaffirmed in Chamberlain v. Showalter, 5 Tex. Civ. 229, 23 S. W.
1017; Luzenberg v. Bexar Bldg. etc. Assn., 9 Tex. Civ. 266, 29 S. W.
238. See notes, 9 Am. St. Bep. 302; 9 Am. St. Bep. 303. Approved
in Gamer v. Lasker, 71 Tex. 435, 9 S. W. 334, possession is a corrob-
orative circumstance of conveyance; Ammons v. Dwyer, 78 Tex. 646,
650, 15 S. W. 1051, 1053, deed over thirty years old coming from
proper custody is admissible with corroborative proof; Holt v. Mav-
erick, 5 Tex. Civ. 652, 23 S. W. 752, admitting certified copy of in-
dorsement over thirty years old; Lunn v. Scarborough, 6 Tex. Civ. 17,
24 S. W. 847, want of possession under ancient instrument does not
render it inadmissible. See note, 35 L. B. A. 343.
Certified Copy of Ancient Becorded Deed is properly admitted where
original would be.
Approved in Williamson ▼. Work, 33 Tex. Civ. 871, 77 S. W. 267,
reaffirming rule; Eiviere v. Wilkens, 31 Tex. Civ. 458, 72 S. W. 610,
record supplies proof of delivery; Yeary v. Crenshaw, 30 Tex. Civ.
402, 70 S. W. 581, admitting certified copy of survey and field-notes;
G. H. & S. A. By. v. Stealey, 66 Tex. 470, 1 S. W. 187, certified copy
of ancient deed is admissible upon same proof as original; Shinn v.
Hicks, 68 Tex. 279, 4 S. W. 487, certificate properly admitted where
proof would have admitted original; Burleson v. Collins (Tex. Civ.),
29 S. W. 688, a certified copy of a deed is admissible when the original
cannot be produced to prove the execution of the original. See note,
35 L. B. A. 340, 344.
Charge That Deed Over Thirty Tears Old is evidence without any
other proof is not charge on weight of evidence, though it would have
been error to charge that its age afforded conclusive evidence of the
genuineness of the instrument.
Approved in Stooksberry v. Swan (Tex. Civ.), 21 S. W. 695, reaffirm-
ing rule; Gann v. Boberts, 32 Tex. Civ. 564, 74 S. W. 951, age of
record not conclusive where affidavit of forgery filed; Beaumont Pas-
ture Co. V. Preston, 65 Tex. 451, error for judge to charge that proof
constitutes prima facie evidence of execution of paper in question;
Pendleton v. Bobertson (Tex. Civ.), 32 S. W. 443, admitting an in-
strument of transfer when the son of the transferee testified that it
was in his father's possession for over thirty years.
Where Grantar, Grantee, and Subscribing Witness are dead, clerk's
testimony as to registration of deed is best evidence of its existence.
58 Tex. 690-708 NOTES ON TEXAS EEPORTS. 1190
Beaffirmed in Beaumont Pasture Co. y. Preston, 65 Tex. 459. Ap-
proved in Wilson v. Simpson, 68 Tex. 312, 4 S. W. 842, admitting bond
sufficiently authenticated for registration.
Certificate of State Controller showing that property was rendered
for taxes, as shown by records of certain county, being one which
he is authorized to make, is admissible in eyidence.
Approved in Talbert y. Dull, 70 Tex. 679, 8 S. W. 532, certificate
from commissioner of general land office certifying to faets is ad-
missible.
58 Tttx. 090-696^ HASBIS C0X7NTT V. TAYLOR.
Purchasers of Lots Adjoining Square Dedicated for purpose of
courthouse, who bought on faith of such dedication, may enjoin eountj
from erecting a jail thereon.
Approved in Mclntyre y. El Paso County Commrs., 15 Colo. Ap. 84,
61 Pac. 240, square dedicated to city for park and public buildings
cannot be used for county courthouse; Llano v. Llano Co., 5 Tex. Civ.
137, 139, 140, 23 S. W. 1010, 1011, 1012, municipality may enjoin
county from using property for a purpose foreign to dedication;
Llano Co. v. Knowles (Tex. Civ.), 29 S. W. 551, the county can recover
land used for a purpose inconsistent with the dedication; Davenport
v. Buffington, 97 Fed. 239, 46 L. B. A. 377, nation or state is estopped
from revoking dedication of land to public use which has been im-
proved.
58 Tex. 696-708, DIIJiOK ▼. KATTFFlffAN.
Wbere One is Induced to Pay a Debt secured by a trust deed under
agreement that he be entitled to security of trust deed, right of sub-
rogation of payor is not affected by substitution of new note an«l
mortgage made to payor, executed after payment, by one of two joint
debtors.
Beaffirmed in Warford v. Hankins, 150 Ind. 494, 50 N. E. 470; Park
V. Kribs, 24 Tex. Civ. 659, 60 S. W. 910. Approved in Cumberland
Bldg. & L. Assn. y. Sparks, 111 Fed. 652, applying rule to mortgage
defectively acknowledged, executed to discharge prior mortgage;
Warhmund v. Merritt, 60 Tex. 27, creditors of an estate furnishing
purchase money to vendee at administrator's sale are subrogated to
lien of administrator; Fievel v. Zuber, 67 Tex. 280, 3 S. W. 275, sub-
rogation may take place by agreement between debtor, creditor, and
third party; Cason v. Connor, 83 Tex. 30, 18 S. W. 670, subrogation
cannot take place until original creditor is fully paid; Johnson v^
Port wood, 89 Tex. 248, 34 S. W. 600, intervener paying debt of de-
fendant will be subrogated to rights of plaintiff; Dixon v. National
Loan etc. Co. (Tex. Civ.), 40 S. W. 544, mortgagee is subrogated by
equity to vendor's lien when the money loaned is used to pay off ven-
dor's lien; Bachal v. Smith, 101 Fed. 166, one lending money to mort-
gagor to pay claims of mortgagee is subrogated to rights of mort-
gagee; Home Savings Bank v. Bierstadt, 168 111. 625, 61 Am. St. Bep.
149, 48 N. E. 162, one agreeing with debtor to take up deeds of trust
is subrogated to rights of trustee. See notes, 99 Am. St. Bep. 520;
23 L, E. A. 128.
Homestead Acquired After Lien is not protected by eonetitution
from disposition to satisfy lien placed on property before it became
homestead.
Approved in Johnston v. Arrendale, 30 Tex. Civ. 508, 71 S. W. 47,
loan given to satisfy vendor's lien, pay taxes and buy out co-owner.
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1191 NOTES ON TEXAS BEP0BT8. 68 Tex.70S-714
good against homestead; Lippencott v. York, 86 Tex. 283, 24 S. W.
278, husband and wife can contract with assignee of lien on home-
stead extending time of payment.
58 Tez. 708-714, WIUiIAMS ▼. NOLAK.
No Be-examinatioiL of a Case at a subsequent term can be had un-
less all parties to former action are parties to it.
Reaffirmed in Madison ▼. State, 17 Tex. Ap. 486. Approved in
Collins y. State, 16 Tex. Ap. 280, notice to correct mistakes in judg-
ment must be given to all parties; Hand v. State, 28 Tex. Ap. 29, 11
S. W. 680, judge cannot amend recognizance nunc pro tunc without
notice to principal; Byvtrs v. Justin, 2 Tex. Ap. Civ. 605, notice to
amend judgment at a subsequent term must be given to all parties;
Wichita Land etc. Co. v. Ward, 1 Tex. Civ. 312, 21 S. W. 131, in action
to annul judgment all parties to it are necessary.
Every Presumption is Indulged in favor of settlement by attorney
duly employed.
Approved in Anderson v. Oldham, 82 Tex. 231, 18 S. W. 558, au-
thority of attorneys to compromise should be specially pleaded. See
note, 71 Am. Dee. 261.
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HARVARD LAW LIBRARY
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