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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. 


\ 


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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