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    Gilleland v. Drake.
    (June, 1881.)
    Assignment of error,— In taking exceptions to rulings of the court the assignment of error must be specific and must be in conformity with the statute.
    Charge of the court.— When, upon inspection, the jury seem to have been instructed upon all points involved in the case, it is the custom of the supreme court not to examine charges asked and refused.

      Appeal from Travis county. Opinion by Quinan, J.
    Statement.— This suit was brought by Drake to recover of Mrs. Gilleland damages for horses driven bjT McLaren, her agent, out of the plaintiff’s range and branded in Mrs. Gilleland’s brand, and which by the wrongful taking of them have become a total loss to him. The facts were that Mrs. Gilleland employed McLaren to brand up her stock, and that McLaren drove some horses from Drake’s range to Mrs. Gilleland’s pen, and, supposing the young stock to belong to Mrs. Gilleland, branded them in. her brand by mistake. Drake’s brand was JO. Mrs. Gilleland’s JG. The animals, when branded, were turned loose at Mrs. Gilleland’s pen. Drake sought for them, but never recovered them all. Mrs. Gilleland was called upon to return and counter-brand the stock, but she refused to assist in so doing or paying any part of the expense.
    She claimed all the horses in her brand. Admitted that McLaren had authority to brand her stock, and offered, if Drake proved that any of his horses had been put in her brand, to let him take them and counterbrand them. She seems to have been unwilling to put herself to any trouble or expense to ratify the mistake that had been committed. Beyond the fact that Drake’s animals were put in her brand, she does not seem to have ever otherwise appropriated them.
    The jury found a verdict for plaintiff for $-, and from the judgment rendered thereon this appeal is prosecuted.
    The assignments of error in this case are:
    1. The court erred in overruling the objections of defendant to the introduction of the deposition of Thomas LT. Swearingen, and in permitting said deposition to be read to the jury for reasons set forth in her bill of exceptions.
    2. The court erred in its instructions in chief to the jury.
    3. The court erred in giving the instructions asked by ' counsel for plaintiff.

      4. The court erred in refusing to give the instructions, numbered from 1 to 7, asked by defendant.
    5. The verdict, of the jury is contrary to law.
    6. The verdict of the jury is contrary to, and unsupported by, the evidence.
    7. The judgment of the court on the verdict of the jury is contrary to law.
    8. The court erred in overruling defendant’s motion for a. new trial.
   Opinión.— The objection to the deposition of Swearingen, that the notary public who took it on the 14th of February, 1871, was not then a justice of the peace, and therefore unauthorized to take depositions, was answered in the negative by the supreme court when this case was here before on appeal. Gilleland v. Drake, 36 Tex., 676. That the cross-in fcerrogatories were not answered was no objection to the reading of the deposition, because no cross-interrogatories were filed to the interrogatories upon xvhich the deposition was taken. Gross-interrogatories, filed to previous interrogatories propounded to the same witness, were not applicable to the subsequent interrogatories.

The second, third, fourth, fifth, sixth and seventh assignments of error are of that character which, before the introduction even of the new rules, has often been condemned by the supreme court as too general and indefinite. They are not a sufficient compliance with the statute. P. B., art. 1591. They do not put the finger upon the very error committed. What the particular error complained of in the charge of the judge is, even in the briefs of counsel, we have no specific information, and the objection to the charge given as asked by the plaintiff is simply that “it is very loosely drawn, and that nothing is to be found in the charge respecting a lcnoxvledge, on the part of Mrs. Gilleland, as to what had been done by McLaren.53

Looking at the whole charge in the light of the statement of facte, wre have no reason to believe that the jury were not sufficiently instructed as to the law of the case before them. And where that is the case, and the verdict appears to be warranted by the evidence, courts have refused to examine instructions asked for and refused. Phillips v. Smoot, 15 Mo., 598; Henderson v. The State, 12 Tex., 525; Hicks v. Bailey, 16 Tex., 231; Allbright v. Penn, 14 Tex., 290.

Here the controversy was whether McLaren, who had authority to brand Mrs. Gilleland’s horses, had. branded horses of the plaintiff in her brand for her, and, if so, whether that act had been done within the scope of his authority, or had been ratified by her.

The charge of the court instructed the jury: “To constitute McLaren the agent of defendant, the act of McLaren must have been done in pursuance of the general line of the duties resulting from his employment, or the act must have been done by the direct direction or command of defendant, or the act must have been approved and ratified by the defendant after it had. been committed. If the act of taking or branding the stock of plaintiff by McLaren was with the knowledge that it belonged to the plaintiff and not to the defendant, and that he was not employed by defendant to brand it, then the act was not done in the line of his employment, and the defendant is not liable for the resulting damage.”

The appellees do not question that this charge is, so far as it goes, good law, but that it is defective in not explaining what, in law, was necessary to constitute a ratification, and it is to this point that he asked instructions of the court, the refusal to givé which he complains of as error. The charges asked embraced the proposition “ that ratification is constituted by the principal, with full knowledge of what has been done, giving his assent or approval to the act and making it his own.” This is certainly true; there can be no ratification without knowledge, and this instruction might well have been given;. but was it essential, and does the failure to give it vitiate the verdict? We think not. There was no question made in respect to Mrs. Gilleland’s knowledge of what had been done. It was the subject of full discussion with her. Nothing was held back, nothing concealed, and this before the acts which are claimed by appellee to have been a ratification. In fact, she had full knowledge of what was done and charged to have been done, and it was sufficient, therefore, as the case was presented, to instruct the jury that if c< she approved and ratified 53 the acts of McLaren after their commission she would be responsible for them.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jacob J. Griffin v. John M. Roe.
    (No. 2826.)
    Trespass to try title — Disputed boundaries — Metes and bounds.— (See statement of facts, including field-notes, with discussion of the law applicable thereto.)
    appeal from Dallas county. Opinion by Quinan, J."
    Statement.— This was a suit in trespass to try title to about thirty-five acres of land in Dallas county. It was in fact a controversy over disputed boundaries. Griffin owned the northern part of the Freeman survey; Rowe claimed the southern half of the Rowe survey. The lands adjoined. Griffin alleged that Rowe was in possession of a strip off the north side of his land about ninety varas wide and one thousand nine hundred varas long. The case was tried by a jury, who found a verdict for the defendant, from which he appealed.
    The assignments of error embrace errors of the court in the admission of testimony, in the charge to the jury, and that the verdict is against the evidence.
   Opinion.— To better understand the case we will give field-notes of the land'and adjoining surveys.

In the patent for the Freeman survey no marked corners are given. Its calls begin at Bank’s S. W. corner and the Haught FT. W. corner; thence S. to Haught’s S. W. corner; thence west to John Denton’s 8. E. corner; thence FT. to William Rowe’s 8. W. corner, and thence to beginning.

The Rowe patent describes his boundaries as beginning at Haught’s H. W. corner and Bank’s S. W. corner; thence FT.' with Bank’s west line 1,900 varas to a stake, from which a hackberry bears 8. 79 W. 31-6-10; thence W. 1,900 varas to a stake on Valentine’s east line, from which an elm bears H. 36 deg. E. 6¿ varas; thence 8. 1,900 varas to a stake 90 varas north of Valentine’s east corner; thence east to the place of beginning.

This Valentine’s east corner is “a stake in Duck Creek bottom; from said stake a red haw, 6 inches in diameter, bears 8. 26 deg. W. 3-J- varas, and a hackberry bears FT. 25 deg. E. 3-J- varas, and from thence north Duck Creek at 400 varas, 8 varas wide.”

The Haught survey, the FT. W. corner of which is the beginning corner of both the Freeman and Rowe surveys, has corners indicated by stakes and bearing trees. The FT. W. corner is a stake in the prairie. From said stake an elm, 5 inches in diameter, bears FT. 5-j¡ deg. E. 56 varas.

How the thing to be determined being the proper location of the lower line of the Rowe survey, in these field-notes there are objects from which, if they still can be found, it can be fixed with accuracy. It is a direct line running west from the southwest corner of the Bank’s survey, and east from a point ninety varas north of Valentine’s corner. Obviously it can be- ascertained with accuracy running one way as well as the other. It is as legal and certain a rule by which to fix it to run from the western end to the eastern end of the line, as the reverse method. The beginning corner in the field-notes is of no higher dignity or importance than any other corner of the survey. The order in which the surveyor gives the lines and corners in his certificate of the survey is of no importance to find the true position of the survey. Reversing the course is as lawful and persuasive as following the order of the certificate. Phillips v. Ayers, 45 Tex., 607. If at the eastern end of the line, the corner called for in the patent had been obliterated by time, and that at the western end remained and could be found, the true position of the line and of the eastern corner could be determined by running the line the proper course and distance from that point.

It was error, therefore, to charge the jury as the court did, “to determine from the evidence where the corner of the Haught survey is, and run from that corner; ” and again, “ if the beginning point of both surveys is the same and can be ascertained in connection with the' ancient landmarks surrounding, made by the original surveyor, it will control.” The effect of this instruction, taken in connection with other portions of the charge, was evidently to mislead the jury. The verdict is manifestly against the evidence.

Reversed and remanded.


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    B. F. Giltner et al. v. W. C. Waters et al.
    (No. 324.)
    Trespass to try title.
    Evidence.— It is well settled that where the testimony is conflicting the verdict will not be disturbed by this court unless, the preponderance of the evidence against the correctness of the same is so great as to authorize the court to declare it clearly wrong. It is not simply a technical rule of practice, but a principle underlying our judicial system, that the court would no more be justified in an invasion of the province of the jury in attempting to decide upon the credibility of witnesses and the weight to be attached to their testimony, than would the jury in assuming to decide what principles of law should be applied in any particular case.
    Appeal from Navarro county. Opinion by Watts, J.
    Statement.— Petition filed by plaintiffs below, appellees here, to the March term, 1874, alleging ownership in certain land therein described, a part of a tract of land, the original survey containing two-thirds of a league, and one labor; that defendants disturbed their peaceable possession, by claiming and publishing in the neighborhood that the boundaries claimed by plaintiffs are not the true boundaries of their possession; that plaintiffs’ northern boundary is at another and different place from that claimed by the plaintiffs; exhibiting a map showing the conflict between the boundaries of the plaintiffs and defendants, who are adjoining proprietors, and praying that they, the plaintiffs, be quieted in their possession to the line to which they claim.
    At the same term the defendants filed a demurrer. At the July term, 1874, the defendants filed a general denial to the allegations of the plaintiffs’ petition; set out their claims to the possessions within the boundaries which they claim to be the true boundary, over two hundred varas south from where plaintiffs' claim, and in this answer set out the further plea of estoppel, alleging that one Wm. M. Love, through whom the plaintiffs claim and derive their title, while he was owner of the possessions now claimed by plaintiffs, often stated publicly that the true boundary line of the land claimed by plaintiffs was where defendants allege it to be; that he thereby induced them to purchase and acquiesced in the occupancy of defendants, and those through whom they claim, to the line claimed by defendants to be the true boundary line, and that these facts were well known to plaintiffs when they purchased the adjoining lands; and further setting up the three, five and ten years’ statutes of limitations.
    At the March term, 1875, defendants, by way of amendment, filed another plea of estoppel, alleging the acts and declarations of Wm. M. Love, a former proprietor of the land claimed by the plaintiffs, to which plea of estoppel plaintiffs excepted; their exceptions were overruled and the parties went to trial, which resulted in a verdict and judgment for the plaintiffs, from which, after motion for new trial overruled, the defendants appealed.

      The errors assigned and relied on by appellants will be stated in the opinion.
   Opinion.— The contest in the court below was as to the true boundary line between adjoining surveys.

The appellees, who own the north half of the Goodloe survey, claim that the north boundary line of the same is something over two hundred varas further to the north than is claimed by appellants, who own portions of the Richardson, Ray and Good surveys, which adjoin the Goodloe on the north.

The Goodloe tract was surveyed December 5, 1839, the Richardson and Ray tracts were surveyed May 18, 1850, and the Good, May 30, 1850.

Appellees claim that the surveyor, .in making the three last mentioned surveys, encroached upon the Goodloe something over two hundred varas, while the appellants assert that the south boundary line of said surveys, as made and marked upon the ground in 1850, was the true boundary of the Goodloe survey.

The appellants rely for a reversal of the judgment mainly upon the proposition that the verdict is contrary to the evidence.

The peculiar and exclusive duty and province of the jury, assigned to and imposed upon them by law, is to ascertain, and determine all questions of fact. And if, in the discharge of that duty, their determination is founded upon legitimate and competent evidence, the court would not be justified in interfering with and setting aside the verdict. Gibson v. Hill, 27 Tex., 241; Briscoe v. Bronaugh, 1 Tex., 340; Chandler v. Meckling, 22 Tex., 42; Ables v. Donley, 8 Tex., 336; Wells v. Barnett, 7 Tex., 587.

It has been frequently held that in order to justify the appellate court in setting aside the verdict of a jury, it is not sufficient that it does not appear clearly to be right, but it must appear to be clearly wrong. Tuttle v. Turner, 28 Tex., 757; Stroud v. Springfield, 28 Tex., 676; Stewart v. Hamilton, 19 Tex., 101.

Again in the case of Tarkington v. Broussard, 51 Tex., 553, it was held, in effect, that where the testimony was conflicting, the verdict will not be disturbed by the court, unless the preponderance of the evidence against the correctness of the same is so great as to authorize the court to declare it clearly wrong.

These are not simply technical rules of practice prescribed for convenience, and which may be disregarded at the pleasure of the court, but, on the contrary, are principles lying at the foundation of our judicial system, in which the court decides the law and the jury determines the fact, and each, in its own sphere, being independent of the other. The court would no more be justified in an invasion of the province of the jury in attempting to decide upon the credibility of witnesses, and the weight to be attached to their testimony, than would the jury in assuming to decide what principles of law should be applied in any particular case. In case of conflicting evidence it is the province of the court to consider and determine whether or not the verdict is sustained by the evidence.

If the line of the Goodloe was where it is claimed to be by appellants, then they would, independent of any limitation, own the strip in controversy; while, if the land is as claimed by appellees and determined by the jury, both parties being in possession of their respective surveys, the appellants could not avail themselves of limitation as to the land in controversy, except to the extent they had it inclosed. Angelí on Limitations, sec. 384.

Judgment amtrmed.


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    Galveston, Houston & Henderson R. R. Co. v. R. W. Bell and - Bell.
    (No. 320.)
    Liability of gabbier.
    Damages.— It is well settled that in order to lay a basis for greater damages against the carrier for damages or non-delivery of property shipped than the difference in value when shipped and when the goods are received or lost, the plaintiff must allege such special facts as will render the carrier amenable to damages above the general rule, according to the nature of the case.
    Pleading—-Practice.—There must be a basis laid to support the judgment. Facts not alleged, though proven, cannot form the basis of a judgment.
    Appeal from Balias county. Opinion by Walker, P. j„
    Statement.— Suit by the appellees against the appellant for damages alleged to have ensued to plaintiffs, caused by the negligent delay of defendant’s railroad to deliver at their destination, to wit, Dallas and Hutcheson, twelve cases of fruit trees, shipped from Galveston on said railroad by the plaintiffs, to be conveyed to said points of destination. Plaintiffs alleged that by exposure on flat cars of the defendant, and several days’ delay, the fruit trees were frozen; that plaintiffs had bargained and agreed with divers parties in and around Dallas and Hutcheson for the sale of said fruit trees, which they had agreed to deliver to them in good order. Plaintiffs alleged that by defendant’s careless delay "in the transportation for the period of twelve days, and of said exposure, the fruit trees were frozen, and plaintiffs were subjected to great loss and expense and consequent damage; that one of said boxes of fruit trees, of the value of §400, defendant wholly failed to deliver and was wholly lost; that by reason of said damaged condition of the trees, said parties who had agreed to buy them refused to purchase them, and plaintiffs were compelled to sell said trees at great sacrifice, and were at great delay and expense in effecting said sales, to their great damage, §5,000; they prayed, judgment for their damages and costs. Under leave granted to amend, plaintiffs amended their petition and set forth the items of their account or list of fruit trees shipped as aforesaid, with the contents and value of each of the boxes or cases containing the trees; the aggregate values amounted to exactly §4,000. The original petition-had alleged their value at §4,800. The amended petition alleged that one of the boxes of trees included in the amended list and valued at §220 was wholly lost. The others, though alleged to have been damaged, were received, and sold at a loss and sacrifice.
    Judgment by default with writ of inquiry; verdict and judgment for the plaintiffs against the defendant for §5,000. The defendant prosecutes this writ of error, and assigns thirteen grounds of error, among which is that the judgment is manifestly excessive, unjust and illegal. This assignment is quite too general to require us to notice it> but in view of the fundamental error which an inspection of the record renders conspicuous, we will be required to consider the merits of the plaintiffs’ judgment.
   Opixiox.— The plaintiff alleges no facts upon which he is entitled to recover damages from the defendant on a broader or more extended basis, as the measure thereof, than the difference in the value of the fruit trees when they were delivered to the defendant, and their diminished value when they were received. That difference could not have exceeded their entire value. The whole is greater than any one of its parts; a part is not equal to the whole. The plaintiffs very carefully show, therefore, that they could not have been damaged beyond §4,000 in the injury done to their fruit trees, for they allege that they were worth no more than that sum. They do not pretend, either, to an entire loss of the trees; they admit that the loss was partial; that they sold all of them, except one case that was lost, at a sacrifice; how much they realized is not stated; whatever was its amount, to that extent diminished their damage, and is to be subtracted from the entire amount of value, viz., §4,000.

It is well settled that in order to lay a basis for greater damage against the carrier for damage or non-delivery of property shipped than the difference in value when shipped and when the goods are received or lost (as the case may be), that the plaintiff must allege such special facts as will render the carrier amenable to damages beyond the rule above stated, according to the nature of the case.

The plaintiffs in .this case lay no other claim for damages beyond those that follow under the ordinary rule, than that they had contracted to sell the fruit trees to certain parties, who, in consequence of said injury to the trees, refused to buy them.

They allege no facts showing any special loss therefrom, beyond what would be compensated by the payment to them by the defendant of their entire and absolute value. Besides, in order to render the carrier liable for any special damage growing out of circumstances which might have induced a peculiar loss to the plaintiffs by the delay of transportation, it seems that notice at the time of shipment should have been given to the defendant of the facts and circumstances which plaintiff referred to, so that the defendant could have protected itself by the use of cave and diligence corresponding to any supposed necessity for its exercise.

Under the facts stated by the plaintiffs in regard to the contract of shipment of the trees, it will not be supposed that either of the parties contemplated a greater amount of liability on the part of the defendant than to be answerable for the value of the trees. Ho basis is laid in the petition for the recovery of the remote or consequential damages which may have ensued from the delay and expense of procuring the sale of the fruit trees after they reached their destination.

We conclude that there was no basis laid for such a judgment. Facts not alleged, though proven, cannot form the basis of a judgment. Hall v. Jacks, 3 Tex., 305. There is no statement of facts in the record. In its absence every intendment will be indulged in stipport of the verdict and judgment. But whatever may have been the evidence on the trial, the pleadings could not support a verdict for $5,000. Hor even can a verdict for $4,000 be supported. The petition negatives a legal damage beyond the difference between what the plaintiffs realized and $4,000.

BeVEBSED AND BEMANDED.


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    Ulysses Grandjean v. W. R. Story.
    (No. 319.)
    Pleading.—It is not necessary to deny every allegation in the petition to introduce testimony to the contrary. The defendant pleaded that the property sued for was a homestead and that the purchase money had been paid and no lien existed. Held, it was not necessary to contradict the averment that it should have been denied.
    Evidence.— Objection was taken to the introduction of a sheriff’s deed because the execution was not proved. Search was made in the clerk’s office but it could not be found; the clerk who issued the execution swore that he had issued it; the execution docket was introduced showing the date of its issuance and the sheriff’s return. Held, that this was sufficient to authorize its introduction.
    Appeal from Bexar county. Opinion by Quinan, J.
    Statement.— The following statement from the appellees’ brief is a fair statement of the nature of this action:
    This was an action of trespass by W. It. Story against Anton Horn, commenced January 21, 1874.
    On the 30th of the same month the defendant filed a general demurrer and general denial, with the plea of “not guilty.”
    On April 3, 1874, Ulysses Grandjean malees himself a party defendant, alleging himself to be the owner of the land described in the petition, and says further that he purchased the same from John G. Ward and wife; that at the time of such purchase and long anterior thereto, the said land was the permanent homestead of his grantors"; that it was free from incumbrances; that Story knew that it was the homestead of Ward and wife, and that he paid the purchase money therefor. He prays to be quieted in his title and cancellation of Story’s claim.
    On the same day Horn disclaims ownership, pleads not guilty, and says that he was acting under a contract with Grandjean.
    The plaintiff thereupon, and on the same day, "amends his original petition, alleging himself to be the owner in fee of the lot or land described in his original petition; that he is entitled to the possession of the same; that he has been forcibly and fraudulently deprived thereof, and prays judgment for the land, for writ of possession, costs and damages.
    By these subsequent pleadings, what was at first an action of trespass guare clausum freyit became an action of trespass to title, was so treated by the court and parties, and as such tried; when on May 28, 1874, a verdict was rendered for the plaintiff and a judgment entered that the plaintiff, Story, recover from the defendants, Horn anti Grandjean, the property mentioned and described in the pleadings (describing the land sued for), that he have a writ of possession, and for $50 and costs. As the judgment of $50 for damages is rendered against both defendants, and whereas it is, perhaps, not perfectly clear that both are jointly liable, we beg leave to remit that part of the judgment and to file a remittitur for the amount.
    Story deraigns title to the land as follows:
    ¡Newell, Gatewood & Co. recovered a judgment against Ward, Briggs & Co. for $1,773.52. Upon this judgment an execution was issued which was levied April 22, 1873, on the piece of land in controversy, as the property of J. G. Ward, one of the firm of Ward, Briggs & Co. The land was sold by the sheriff of Bexar county, purchased at the sheriff’s sale by W. B. Story, and a deed therefor executed by the sheriff to Story, dated June 3, 1873.
    The execution, by virtue of which this sale was made, was lost, and secondary proof was offered and admitted of it and the return on it.
    The defendant claimed title under a deed from John G. Ward, by his agent, Manuela Ward, his wife, dated October 9, 1873. Grandjean placed Anton Horn in possession, who removed a small house from the premises, and hence he was made a party to the suit.
    Grandjean brings the case here by writ of error.
    What further is necessary to a proper understanding of the case may be seen from the opinion. The chief contest was whether the property was the homestead of Ward and wife and so not subject to execution. I have given a condensed statement of the material testimony of the witnesses upon this subject.
   Opinion.-—The assignments of error in this case are of a character so general and sweeping as to require no notice of them seriatim. They are totally wanting in that definiteness of specification necessary to inform us of the very errors complained of.'

We will consider only those points made by the appellants in their brief.

It is objected that the defendant’s demurrer was improperly overruled, but there is nothing in the record to show that the attention of the court was called to it, or that it was in fact overruled, and therefore must be considered as waived.

Bills of exception are reserved to the introduction of testimony upon the subject of Ward’s residence, condition and insolvency, on the ground that there was no allegation to support it in the plaintiff’s petition.

This was an action of trespass to try title. The defendant pleaded that the property was the homestead of Ward and wife, from whom he purchased it in good faith; that the purchase money had been paid, and that there were no liens upon the land. It was not necessary that the plaintiff should reply to these allegations in order to be permitted to introduce proof in rebuttal of them. The defendant having set up that the property had been the homestead of Ward and wife, it was certainly proper to admit whatever proof might bear upon that question and tend to show that it was not, as that the claim of homestead was not made in good faith; that it was mere pretense; that the occupation of it was temporary in its character, not with a view of maintaining it as a homestead, but solely to screen it from creditors.

Objection is also made to the introduction in testimony of the sheriff’s deed to Story for the property in controversy, without proving the execution upon which it was sold. There was proof that search had been unsuccessful^ made in the clerk’s office, where the execution should be, for it, but that it could not be found. The clerk who issued the execution swore that he had issued it. The execution docket was produced, showing the date of its issuance and a copy of the sheriff’s return thereon. This proof was submitted to the judge, and we think was sufficient proof of the execution to go to the jury and to warrant the introduction of the sheriff’s deed. Objection is also made for want of the original return. Story’s title to the land depended upon a valid judgment and execution, and levy and sale thereunder, and payment of the money. As evidence of the levy and sale, either the return of the officer or his deed is competent testimony. A deed is not necessary if there be a "return, nor is a return essential if there be a conveyance. Leland v. Wilson, 34 Tex., 91; Fleming v. Powell, 2 Tex., 225. “The purchaser has no control over the officer, and therefore is not prejudiced by a deficient or incorrect return, nor by the entire absence of any return whatever.” Freeman on Ex., 341. “ The recitals in the sheriff’s deed of his levy and sale are entitled to the same effect as instruments of evidence as the sheriff’s, return.” Higher v. Peck, 2 Cal., 288. As' the sheriff’s deed was read in this case the return was not necessary to be produced.

The only objection made to the judge’s charge which points out with any distinctness the error complained of is the second assignment, “ that the court erred in its fifth charge in using the words good faith.’ ”

The whole paragraph is: “If you believe, from the evidence, that at the date of the sheriff’s sale to Story the place was occupied by Mrs. Ward and her family, in good faith, as the family homestead, you will find 1‘or the defendant.”

The meaning of this is that the occupancy must be with the purpose of using the place as a homestead, not a mere pretense and without any intention of holding and keeping it as a homestead. It is the homestead that is protected by law, not the casual or temporary residence of the party, taken up without the design of making it the homestead, but perhaps' with a view to throw hindrances in the way of creditors. The charge is more favorable to the defendant than the law warrants. It restricted the inquiry of the jury to the character of Mrs. Ward’s occupancy at the time of the sale. This was doubtless following the rule in Stone v. Darnell, 20 Tex., 11, and the qualifying words, “good faith,” are used in accordance with what is said in that case by Hemphill, O. J.: “ Where one removes from his former homestead and fixes his residence on a portion of his lands upon which there had been a levy, such proceeding would be regarded as fraudulent, which might be shown by the purchaser at the sheriff’s sale, and would protect his title against the claim of homestead thus fraudulently acquired.”

The resumption of the occupancy of the land in the present case by Mrs. Ward is shown to have been between the levy and the sale, and as the court had made the character of her occupancy at the day of sale the material question, it wras not improper to have added the qualification of good faith. It is to be observed, however, that Stone a. Darnell has been overruled, and that Mrs. Ward could acquire, after the levy, no homestead right in the land, had she acted with the best intentions. Baird v. Trice, 51 Tex., 560.

The main contention of the appellant, however, is that the verdict of the jury is against the evidence; that the proof establishes that the premises in controversy were the homestead of Mrs. Ward at and before the levy and sale under execution.

It is by no means clear to us that this is the case. Ward lived in San Antonio when he purchased the place in 1862. It became known as the Ward ranoho; Ward kept his stock there. Some of the witnesses stated that after he purchased the place he moved out there with his family, but it is not shown how long he remained, whether for a month, or longer; others who were well acquainted with him say that he never lived there. Mr. Huelas (Ward’s father-in-law) lived on the place and took care of the property. It seems to be uncontradicted that during the war and up to April, 1873, Ward was doing business in town, keeping a livery-stable and an accommodation line; he also kept a store and a hotel. In 1866 or 1867 he was applied to by one wanting to purchase the ranoho and he declined to sell, stating that he wanted to make a pasture. It appears that Mrs. Ward and her children were frequently at the rancho. Horn, a witness for the defendant, and who says he lived within five hundred yards of the place and has known it for seventeen years, says that Ward’s father-in-law had charge of the place for Ward; says Mrs, Ward was at the place frequently, nearly every week; that in April, 1873, Ward went away and then Mrs. Ward and her children moved out there and lived on the place; Mr. Huelas also living there until she sold it. But this witness says nothing of Ward himself living there at any time. The sale by her was made under a power of attorney from her husband, dated in August, 1873. He went over to Mexico, as he said times were dull, to make money and return. There is no reason to suspect an abandonment by him of his wife.

How, it was a question fairly for the jury to determine, .under all the testimony, whether Ward and his wife had established their homestead at the rancho. There was nothing in any charge of the judge to lead them astray or warp their minds in determining the question. They have, by their verdict, found against the homestead right in the premises, and we cannot undertake to say that, weighing the testimonjr and hearing and seeing the witnesses, their decision is manifestly erroneous. The judge who presided at the trial was satisfied with it, and there is no such preponderance either way as would authorize us to disturb it. Courts and juries are always liberally disposed in extending the beneficent provisions of our homestead laws for the protection of families, but it ought reasonably to appear that the homestead, in fact, existed. Casual visits to the rancho during the long period from 1862 to 1873, or stoppages there more or less prolonged or frequent with the children, at their grandfather’s, while the business and employments of the owner were at a distance, requiring daily, nightly, continuous attention, might well be held insufficient proof of the dedication of it as the homestead.

It is unnecessary to discuss the questions presented by the briefs as to the effect of Mrs. Ward’s residence upon the land af ter the levy and at the time of the sale, because, in our view of the law as declared in Baird v. Trice, she could acquire, after the levy, no new right of homestead. Whether such could be acquired after the attachment of the judgment lien need not be considered until a case is presented which requires it.

Judgment affirmed, subject to a credit of $50, the damages remitted by defendant in error.


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    G. W. Greer v. Wesley Young.
    (No. 2956.)
    Contract—Fraud,— Inducements offered by a seller that his property is cheap, or is a bargain at the price at which it is offered, are not classed as fraudulent material misrepresentations.
    Writ of error from Palo Pinto county. Opinion by Walker, P. J.
    Statement.— This suit was instituted by Wesley Young against G. W. Greer on May 2, 1872, in the district court of Palo Pinto county, on a note made by said Greer, and payable to II. W. Young, bearing date November 13, 1S68, payable twelve months after date, for $1,707 United States currency, which may be discharged with $1,200 coin in gold or silver, bearing ten per cent, interest per annum from date. The note showed a credit of $700 specie, May 1, 1870. The defense interposed was: 1. Failure of title to the cattle for which the note was given. 2. Fraudulent representations made by H. W. Young as to the number and value of the cattle. 3. Certain payments made by Greer on the note, among them one made April 13, 1870, for $712.50 to John Hittson, the agent of II. W. Young, and making the receipt of said Hittson for said sum an exhibit in the answer. The cause was tried November 11, 1873,"and resulted in a verdict and judgment for the plaintiff for $1,590.27. Motion for a new trial was made and overruled, notice of appeal was given, and statement of facts was made, signed, approved and duly filed. The petition for writ of error ivas filed July 26, 1875, together with bond for costs. Service was had on the defendant in error November 10, 1875.
   Opinion.— The appellant assigns as error that the verdict of the jury is excessive and contrary to the evidence adduced on the trial, and that the court erred in refusing to grant his motion for new trial. He also assigns several other grounds of error.

The verdict of the jury, under a proper legal effect to be given to the evidence, was excessive; there is no evidence to support it under any rational and consistent theory as to the construction placed upon the evidence by the jury. True, if we may suppose that the jury meant to allow the defendant the benefit of all the alleged payments claimed by the defendant as stated in his answer, or both items of payment indicated in the statement of facts, viz., the one indorsed on the note, and also that evidenced by Hittson’s receipt, the excess against the defendant would be erroneous. It would be too great to warrant the inference that both of them were intended to be allowed by the jury, as the two combined, if considered ■ as separate transactions and valid payments of different amounts and at different times, would have gone largely towards the entire satisfaction of the note at the time when the judgments were made, instead of leaving the large balance against the defendant which the jury found. The character of the evidence itself, in connection with the above view, fully justifies us in considering the question presented upon the assumption that the jury allowed to the defendant asa credit upon the note the sum of §700 specie, credited upon it on Hay 1, 1870, or else credited him with §712.50 from April 13,1870, regarding that as being the actual payment which was credited on the note as above stated, and which Hittson, the receiptor, promised he would place upon the note. The statement of facts does not point to any other payments made by the defendant, and, as the evidence is herein presented, it might well have been concluded that the indorsement on the note had reference to the transaction referred to in the receipt. The want of any parol evidence tending to countervail such a construction is suggestive of the propriety of such a deduction. Hittson, as also the defendant, who were the actors in the transaction, were both competent to testify, and could have removed the inference which naturally arose from the face of both instruments which evidenced payments, and shown them to relate to distinct payments, if they had been able or willing to do so, but neither their own nor any other testimony was offered on this subject. We conclude, then, that the jury acted upon one only of these acknowledgments of payment. It is clear that the defendant was entitled to the benefit of one or the other of them, and it is evident that the jury gave it to him.

The question then is, under the note sued on, what was the legal effect of the payment of one or the other of said sums if the same was paid in specie. a Specie33 means gold or silver. The plaintiff accepted it as payment on the note. In our opinion, whether he might or might not have refused to accept it after the note became due, as it was at the time' of payment, at the ratio of valuation which the terms of the note stipulated, as compared with United States currency notes; whether, in other words, he might have refused to accept it otherwise than at denominated value, and as of the same value as currency, because of defendant’s failure to pay and discharge the note at maturity, we need not inquire. The fact that it was offered as payment pro tanto on the contract, which provided for the discrimination between the respective currencies on the part of the obligor, and that it was accepted and so credited upon the contract or note by the obligee, imports prima fació the acceptance of the payment on account of the stipulation contained in it in favor of the defendant, in case he elected to pay gold or silver; and the legal effect of the payment thus made would be to discharge the currency debt to the extent of the sum paid in the ratio which $1,200 bears to $1,707, or in the. proportion of 1 to 1.42J.

The payment thus made would be credited to the gold or silver amount, $1,200, after allowing interest at ten per cent, to date. If- $712.50 shall be taken as the amount which was paid, the specie balance which would have been due at the date of the judgment would have approximated $890, and making like application as is above suggested at the time of payment, and reducing the specie balance then due to currency at thó ratio of 1.42Í to 1, and allowing interesfc thereon to date of judgment in currency, the amount due to the plaintiff in currency would be, approximately, $1,267. This latter amount, it seems to us, is the true balance in favor of the plaintiff, and for which the verdict ought to have been rendered. The defendant had the privilege to discharge the note in gold or silver at $1,200 by compliance with its terms, but the note was, by its terms, a note payable in United States currency. His right thus to discharge it on other than the terms agreed on did not continue after his default, nor can he complain if his own default results in a hardship to himself, which, under a reversal of the course of the financial market by the depreciation of the United States currency, might have forced upon the plaintiff. See Baker v. Todd, 6 Tex., 274. The plaintiff was bound to acccept payment in currency, if tendered, whatever depreciation it might undergo, and at any time that payment should be offered.

We do not deem it necessary to consider the other assignments of error; if the charges complained of were subject to objection, it may be replied that the errors suggested could not have injuriously affected the defendant under the evidence, because there was no testimony tending to show representations made by the plaintiff to the defendant of a nature and character to mislead and deceive him in regard to the number and quality of the cattle. Inducements offered by a seller that his property is cheap, or is a bargain at the price at which it is offered, are not classed as fraudulent material misrepresentations. The law expects the purchaser to rely upon his own resources in respect to the availability of his purchase to himself, and so long as the seller misrepresents no fact upon which the purchaser has a right to depend and rely in estimating the value of the property or the availability of the trade, he may with impunity solicit the making of the contract by fair commendation of his property, and even persuasions to purchase it.

[Reversed and remanded.


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    Moore & Partain v. Wagner.
    (No. 3723.)
    Priob conveyance, how defeated.
    Community property, sale of.
    Appeal from Guadalupe comity. Opinion by Watts, J„
   Opinion.— This was a suit for an undivided interest in a lot in Seguin and for partition. Appellants claim as the heirs of their mother, Mrs. 8., who died in 1853; that is, her community interest in the land. Their chain of title is: Conveyance from 8., as administrator of EL, to T„, dated September 1, 1845; reconveyance from F. to 8., September 24, 1845; death of Mrs. S. in 1853, and their heirship.

Appellee’s chain of title is through two sources: First. Deed from H. to R„, October 26, 1839; from R. to James O., November 22, 1839; quitclaim deed from E. W. C. to F. L. R., February 13, 1868; proof of death of James C. and sole heirship of E. W. C.; conveyance from F. L. R. to L, and from I. to appellee. Second. Deed from G., as administrator of S., to I., June 8, 1873, and from I. to appellee. Held: This conveyance to R., whether recorded or not, divested him of all title to the land. The subsequent conveyance by S., as administrator of JL, to F., and by F„ to S., could not defeat the title to R. or those claiming under him, as it is not shown that either purchased without notice of the R„ deed, nor that either F. or S. paid value for the land, both of which were necessary in order to defeat this prior conveyance. The deed from E. W. 0., in connection with the proof that James C. had died leaving the former his sole heir, was sufficient 'to pass title to F. L. R. Title by inheritance is as effectual as a written conveyance.

Under his first chain of title appellee showed superior title. But if this chain should be excluded from consideration, appellants still cannot recover. It is admitted that G. , as administrator of 8., sold the land to I. under valid orders of the probate court. It may be presumed that the sale was made to pay debts. It not being shown that S, died, or when the -administration was opened upon his estate, it will not be presumed that this was so long after the death of Mrs. S. that all community debts were either paid or barred. A sale made of community property by the administrator of the husband for the purpose of paying the community debts passes title to the property. -

Affirmed.


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    Kaufman v. Alexander et al.
    (No. 3591.)
    Husband and wife were competent witnesses for each other prior to adoption of the Revised Statutes.
    Judgment rendered after adjudication in bankruptcy precludes plaintiff from proving claim against bankrupt’s estate.
    Appeal from Lee county. Opinion by Watts, J".
   Opinion.— This suit was brought by Mrs. Alexander to recover her separate property. Her husband was a formal party, having no interest in the subject-matter, and in permitting the husband to testify in behalf of the wife the court certainly erred, and for this the judgment must be reversed. 48 Tex., 516.

As a general rule, a deed cannot be attacked for fraud by a creditor whose claim originates after the execution of the deed, or who acquires the claim after notice of the conveyance. 51 Tex., 461. A conveyance from the husband to the wife is not an exception to this general rule. It is incumbent upon the party who attacks such a conveyance for fraud, to show that his claim originated before the deed was recorded. Alexander’s discharge in bankruptcy, if properly pleaded, would be as effective against the judgment rendered after he was adjudged a bankrupt as it would have been against the claim upon which it was rentiered. It is not shown that this claim was among those excepted from the operation of the discharge. Because the judgment was rendered after the adjudication in bankruptcy did not preclude appellant from proving the claim against the bankrupt’s estate. Bump on Bankruptcy (7th ed.), 508.

Bevebsed and bemanded.


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    Stell, Administrator, et al. v. Lewis & Dilworth.
    (No. 666.)
    Pbiobitt of notes secured by vendor’s lien. Costs of administration not payable before distribution.
    Appeal from Gonzales county. Opinion by Walkeb, J.
   Opinion.— The first proposition answers the third in the construction placed upon it by the court. It is: Bid the law and facts authorize the court to adjudge a preference in favor of the subdivision of the 81,500 note over that for $1,000? Being secured by vendor’s lien upon the same land, because the $1,500 note was subdivided into several smaller notes owned by the party owning the original note, the lien of the $1,500 note was not lost by such subdivision. 45 Tex., 27. The notes were both for the purchase money of the same land, and were, therefore, of the same class or degree, and all the claims were duly presented and allowed within a year after granting the letters of administration, and no doubts or reasons appear in the record to raise any doubt as to their equality in respect to paying them pro rata-s without preference to any special one. 49 Tex., 358; 50 Tex., 317; 45 Tex., 629; 55 Tex., 243; 55 Tex., 568; 58 Tex., 12. BTotes secured by vendor’s lien are equal, and the one maturing first has no prioritj’' over others. 49 Tex., 358; 55 Tex., 24. The court erred in its conclusion.

It was error for the court to subject the proceeds of the sale of the land to paying the administration costs first before distribution. The fund obtained should be applied first before distribution only with the legitimate costs of the proceeding (the sale) by which the fund was realized. A provision for the payment of the costs of administration is made otherwise. It depends entirely upon the condition of the estate to determine under what circumstances the fund available might be property to be used in satisfying expenses of the administration.

Reversed and remanded.


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    Kincaid v. Jones.

      (No. 3964.)

    Acknowledgment by married woman under act in force in 1855.
    Appeal from Fannin county. Opinion by Watts, J.
   Opinion.— One of the essential requisites of the certificate of the separate acknowledgment of a married woman under the law in force in 1855 is that it must be attested by the seal of the court. The deed of a married woman to her separate property is void unless her privy examination is taken in substantial compliance with the statute. 26 Tex., 745. A compliance with the requirements of the statute is indispensable to the alienation of the wife’s separate estate or of her homestead. 28 Tex., 523. The deed of a married woman is not complete, so as to convey title to land, without the certificate of privy examination and acknowledgment as prescribed by the statute. 48 Tex., 622. The necessity for the certificate being attested by the official seal of the authority taking the same is recognized. 20 Tex., 150; 15 Tex., 253. Plaintiff depending alone upon the strength of his own title for a recovery, and the evidence not sustaining the judgment, it is reversed and remanded.


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    Butler v. The State.
    (No. 3915.)
    Bond of deputy-sheriff to collect taxes. Sheriff not a necessary party to action on.
    Appeal from Travis county. Opinion by Walker, P. J.
   Opinion.— As appellant’s answer showed on its face that the suit was brought in Travis county, wherein suits of this character are authorized to be instituted, the first assignment only is noticed, the others being considered waived by rule 29, supreme court, is untenable. The statute in force February, 1873, regulating bonds of tax officers (Acts 12th Leg. 1871, p. 53), gave authority to the sheriff to act by deputy in the collection of taxes. The bond sued on purported to be given as deputy-sheriff to collect taxes, and is apparently in conformity with the law. The statute contemplated that the bond should be treated as an obligation to the state wholly distinct from the sheriff’s bond as collector of taxes, and was intended as a separate security to the state for the performance of the duties of collector of taxes by the deputy. The sheriff, therefore, was not a necessary party.

Affirmed.


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    Roemilie v. Leeper et al.
    (No. 3688.)
    Statute of limitations; pleading disability; waiver of defect; effect of constitution.
    Appeal from Gollin county. Opinion by Delaney, J.
   Opinion.— When, in reply to a plea of the statute of limitations, a plaintiff would set up some disability which protects him against the bar of the statute, he should state when the disability commenced, and the extent of its duration, or his pleading will be fatally defective. But the opposite party may waive the defect; and if he does so, and evidence is admitted under the defective pleading, it is too late to make the objection upon appeal. 44 Tex., 446; 27 Tex., 357. Section 14, article 12, of the constitution did not change the common-law construction of the statute of limitations, but merely extended the time in which, under previous statutes, married women, infants and insane persons had the right to sue. 52 Tex., 92. If by reason of the disability, or by reason of the suspension of the statute, limitation had not commenced to run before the adoption of the constitution, then the plaintiff would have seven years, instead of a shorter term, within which to bring suit. But if the statute had run for any length of time before the adoption of the constitution, that time must be deducted from the seven years.

Reversed and remanded.


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    J. S. Hanna v. John H. Drennan et al.
    (No. 2561.)
    Surviving partner — Intervenor— Charge op court.—All that is required to authorize a party to intervene and have an adjudication upon his rights is to show, by proper averments, that he has an interest in the subject-matter of the suit, and that that interest can be affected by the decree.
    Contribution—Evidence.—The doctrine of contribution is, that the persons not paying are liable to" the person who pays the debt for which they are jointly bound, for the actual amount paid by him; and evidence can be introduced to show the actual cost to him.
    Appeal from Robertson county. Opinion by Watts, J.
    Statement.— John H. Drennan, as surviving partner of the mercantile firm of Drennan & Randolf, on the 19th of May, 1874, brought this suit in the ordinary form of as
      sumpsit, against appellant for goods sold and delivered by Drennan & Bandolf to appellant on divers days, from the 12th of December, 1872, to the 4th of April, 1874, of the reasonable value of §2,043.07 in gold. The said Drennan, by supplemental petition filed May 25, 1874, set up an additional indebtedness of §479.46 in gold, for goods sold and delivered to J. H. Thompson from January 1,1873, to September 27, 1873, alleging that said goods were sold and delivered upon the faith and credit of defendant (appellant), and prayed judgment in his favor for the aggregate of both merchandise accounts, together with the interest and cost of suit. On June 18, 1875, Lucy E. Bandolf, as administratrix of the estate of Geo. F. Bandolf, deceased, intervened in said suit, claiming that her intestate, Geo. Bandolf, in his life-time, while doing business for himself, and not as the partner of any one, sold and delivered the merchandise set out in the exhibits to plaintiff’s petition and supplemental petition, and adopted the pleadings of plaintiff, except so far as the allegations therein set up a partnership between Geo. Bandolf and plaintiff in the mercantile business out of which arose the matters involved in this suit, and praying for judgment in her favor, as administratrix of said Bandolf’s estate, for the amounts due as shown by plaintiff in his petition and exhibits.
    Defendant (appellant) filed demurrer, general denial, special plea denying partnership of Drennan & Bandolf at the time of Bandolf’s death, and also plea of set-off for the amount of one-half of a certain judgment for §3,000, recovered by A. P. Wooldridge, as assignee of Beeson’s estate in bankruptcy, in the United States district court at Austin, against appellant and Lucy E. Bandolf as administratrix of Bandolf’s estate, as co-defendants, which had been paid off as to the judgment plaintiff, and assigned to appellant with right of subrogation. Defendant below also pleaded in offset an allowed claim against said estate for §543.60, gold, with accrued interest thereon.
    Intervenor demurred to plea of set-off, and answered specially that, if defendant ever paid the judgment mentioned,' he only paid the sum of $581.43, and the sum of $66.05.
    January 3, 1878, verdict of the jury for the intervenor for $1,496.12 gold. Judgment rendered thereon in favor of intervenor.
    Motion for new trial made and overruled. Hotice of' appeal given, errors assigned and the case brought to this court by appeal.
    The errors assigned and relied upon by appellant in his brief will, as far as deemed material to a proper disposition of this case, be shown in the opinion.
   Opinion.— The appellant pleaded in abatement that the plaintiff Drennan was not the surviving partner of the firm of Brennan & Eandolf, as claimed in his petition, but that said firm had been dissolved before the sale and delivery of the goods for which the suit was brought, by a sale of Brennan to Eandolf of his entire interest in the concern.

Hpon the issue presented by that plea the court instructed the jury as follows, to wit: “The defendant denies under oath the capacity in which plaintiff Brennan sues, to wit, that of surviving partner of the firm of Brennan & Eandolf. There is no evidence before the jury that Brennan is such surviving partner; in fact it is admitted he is not, but that the firm of Brennan & Eandolf was dissolved by a sale from Brennan to Eandolf prior to the sale and delivery of the goods, etc., sued for. The jury will then, in no event, find any verdict for Brennan.”

The appellant insisted that if Brennan was not the surviving partner of the firm of Brennan & Eandolf, as al-. leged in his petition, that such fact would not only defeat a recovery by Brennan, but would also abate the suit as to Mrs. Eandolf.

And in furtherance of that view of the law he asked the court to instruct the jury as follows: “In this case it is admitted that at the date of the institution of this suit John H. Brennan was not the surviving partner of the.firm of Brennan & Eandolf. If you so find you will find for the defendant, and not consider any further the case upon its merits.’’

The court refused to give the same and appellant excepted to the charge as given, and the refusal to give that asked by him, and assigns the action of the court in these particulars as error.

Generally any person with the permission of the court may intervene in a pending suit between the parties thereto if he has an interest in the subject-matter of the litigation that can be affected by the decree. Such intervenor may join with either party and resist the claim of the other, or may oppose both, and seek and obtain the relief appropriate to the case made by his pleadings and evidence. Garrett v. Gaines, 6 Tex., 435.

In the case of Field v. Gautier, 8 Tex., 74, after the intervenor had filed, his plea, and therein asserted ownership of the notes sued on, the plaintiff and defendant compromised, and to defeat the claim of the intervenor the plaintiff attempted to dismiss the suit; this the court refused to allow; the defendant pleaded limitation as against the intervenor, based "upon the fact that limitation had completed the bar between the institution of the suit and the coming in of the intervenor. And discussing that question the court said: “ Of the right of the plaintiff, intervenor, to intervene, claim the benefit of the original suit and prosecute it to judgment, if, as he claims, he is the owner of the notes and has never assigned or transferred them to another, there can be no question.” See, also, Hancock v. Dimon, 17 Tex., 369; Eccles v. Hill, 13 Tex., 65; Wright v. Neathery, 14 Tex., 211; Smith v. Allen, 28 Tex., 497.

In this case Brennan had sued as surviving partner; Mrs. Eandolf intervened, and by appropriate averments in her plea asserted ownership of the claims sued on, as administratrix of her deceased husband’s estate, claimed that Brennan had no interest in the debts, and therein showed a good cause of action against appellant. And her right to recover of appellant surely could not be made to depend upon the capacity in which Drennan had brought the suit, for a recovery upon her part presupposes that Drennan had no interest in the claims. As in the case of Field v. Gautier, supra, where a party who has no right or interest in the claims institutes suit upon them, and without regard to the capacity in which he sues, it is obvious that he cannot recover. But the real owner of the claim comes in here as there, and asserts and shows that she is the owner of the. claims sued on, and asserts a cause of action against the appellant on the same. After the plea of intervention was ■ filed she was before the court as a party at interest, standing upon the merits of the case as made by her pleading, and certainly her success did not depend upon Drennan’s staying in or going out of the suit. The court correctly charged the jury upon this issue and rightly refused to give the charge asked by appellant.

The second proposition relied upon by appellant is that an intervenor cannot recover upon a contract between himself and the defendant, distinct from that between the plaintiff and defendant on which the suit was brought.

This proposition is not sustained by the record, nor. is it well taken. In her plea the intervenor adopted all the allegations of the plaintiff’s original and amended petition, and by appropriate averments limited her right to a recovery upon the Thompson account to the existence of a contract between her intestate and appellant, by which the goods were sold to appellant at his special instance and request, and upon his credit solely.

Drennan in his petition sought to recover upon the Thompson account on the ground that the goods therein mentioned were sold to Thompson at the special instance and request and upon the credit of appellant. The authorities cited do not sustain appellant’s position.

Burdett v. Glasscock, 25 Tex. Sup., 45, is a case where the intervenor did not, in any way, connect himself with the contract sued on, but set up an independent agreement between himself and the defendant and sought a recovery alone upon the same. By his plea be showed that he had no interest in the subject-matter of the suit pending between the plaintiff and defendant, and would not be affected by the decree therein. But here the intervenor asserts ownership of the account sued on and seeks a recovery on the same, and notwithstanding she may have stated the circumstances of the sale and delivery of the goods a little different from the facts stated by plaintiff, this would not make it any other than a contract upon the part of the appellant to pay for the same. She was not compelled to assert the liability of the appellant to her, with reference to the subject-matter of the litigation, in the terms and manner in which the same was set forth in the petition; all that is required to authorize her to intervene and have an adjudication upon her rights is to show, by proper averments, that she has an interest in the subject-matter of the suit and that that interest can be affected by the decree.

The second assignment of error is as to the third paragraph of the charge of the court; that portion of the charge objected to and assigned is as follows: 66 That the fact that Thompson, subsequently to the sale and delivery of the goods, signed a note for the amount of said account, or that he or Hanna, or both, were sued on the same, if you find these facts, cannot affect the right of intervenor to recover on this account in this suit.”

Taking the detached extract excepted to and construing it alone, it might be the fit subject of criticism and be objectionable as a charge upon the weight of evidence.

But when considered with reference to the evidence and the whole charge upon this branch of the case, it is not subject to the objection, and is as favorable to appellant as the law would allow. The evidence shows that Drennan, who had no interest in the matter, at one time caused a note to be prepared for the amount of the Thompson, account, for Thompson and appellant to sign; the former signed it but the latter did not. It is also shown that Drennan had instituted suit against appellant and Thompson on said account; the evidence, however, fails to show that the intervenor was in any way connected with, or cognizant of, these matters. And in the language of the court, “ these facts cannot affect the right of the intervenors to recover on this account in this suit.” Hor did this part of the charge mislead or confuse the jury; for they are told more than once in that branch of the charge that “ they could not find against defendant as to the Thompson account unless they believed from the evidence that the goods were sold to Hanna, and upon his credit, and that no credit was extended to Thompson, and that there was no legal liability on Thompson to pay the same.”

The third assignment of error relates to the right of appellant to contribution from the estate of Eandolf for and on account of the Wooldridge judgment, which he claims to have paid, etc. That was a judgment in solido against appellant and the estate of Eandolf for 03,000 and costs of suit; he asserts as an offset one-half of the amount of said judgment, principal, interest and costs of suit. The intervenor contests this offset as to the amount, and asserts that the appellant paid the same with 0647.48 in money, and in claims against the estate of the plaintiff in the judgment at par, -which claims appellant had purchased for that purpose, and for which he had paid only fifty cents on the dollar. Appellant asserts that, without regard to the amount that he had paid Wooldridge for the judgment, as the same had been transferred to him, that he was entitled, as contribution, to one-half of the amount of the judgment. The court, over the objection of appellant, allowed the intervenor to introduce evidence as to the amount appellant had expended in purchasing the claims that he used in paying the judgment; and in the charge limited his right to contribution to one-lialf of the amount expended by him in pajdng the judgment, including reasonable expenses.

In this the court was clearly right. The doctrine of contribution is founded in equity and natural justice; it has its origin in the equitable consideration that when parties have assumed a common burden they should bear it equally.

In Parsons on Contracts, volume 1, page 31, the rule is thus stated: “ When two or more persons are jointly or jointly and severally bound to pay a sum of money, and one or more of them pay the whole or more than his or their share and thereby relieve the others so far from their liability, those paying may recover, from those not paying, the aliquot proportion which they ought to pay, etc.; that the persons not paying, but being relieved from a positive liability by the payment of others who were bound with them, are held by law as under an implied promise to contribute each his share to make up the whole sum paid. And this rule applies equally to those who are bound as original co-contractors and those who are bound to pay the debt of another or answer for his default as co-sureties.”

There is nothing in the cases of Sublett v. McKinney, 19 Tex., 438, and Mitchell v. Smith, 25 Tex. Sup., 538, cited by appellant, that in the least militates against the rule as stated by Mr. Parsons; these were cases in which a surety had paid the debt, etc., and the court held that such surety was entitled to an assignment of the same to indemnify himself. But it is nowhere held by the court that such surety would be entitled to indemnity beyond the actual amount he had expended in paying the debt. The contrary is expressly held in Edwards v. Sheahan, 47 Tex., 444.

Equity would never allow a speculation under the guise of contribution. The rulings and charges of the court upon this branch of the case were in accordance with the rules of law and strongly commend themselves to our sense .of justice.

The fifth assignment of error relates to the ruling of the court in admitting in evidence the declarations of appellant made subsequent to the sale and delivery of the goods charged in the Thompson account. It is alleged by plaintiff and intervener that said goods were sold to appellant upon his credit and at his special instance and request. This he denies and asserts that he is not bound or liable for that account. The evidence upon that issue was conflicting, Dre'nnan swearing positively one way and the appellant equally so the other. The court permitted the declarations of appellant, made after the death of Eandolf, to the effect that he was liable for the Thompson account, to be introduced; this was admitted as a circumstance tending to show that the agreement had been made and the goods purchased as claimed by the intervenor; and the court in the charge limits this evidence strictly to the purpose for which it was admitted. It appears to us that this evidence was admissible as tending to confirm the existence of the agreement by which he had purchased and bound himself to pay for the goods.

The evidence offered by appellant, and excluded by the court, was about a contract between himself and Thompson with reference to farm supplies, and it is not shown or claimed that either Drennan, Eandolf or Mrs. Eandolf ever had any connection with, or were cognizant of, any such agreement.

Affirmed.


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    H. & T. C. R. R. Co. v. T. B. Hogg.
    (No. 335.)
    Liability of common carrier.—Where property intended for sale is placed in the hands of a public carrier for shipment, and is unreasonably delayed, it is universally accepted, as a general rule, that the measure of damages is the difference between the market value of the property when it should have arrived, and the market value when, in fact, it is delivered; and to the full extent of this difference the carrier is liable for delay in the transportation of the property.
    Damages, rule for.—-If, for particular or special reasons, the shipper desires the transportation of his property to be hastened, as where he had contracted to sell the same at a given price to be , delivered at a given time, and informs the carrier of that fact, if the earner, after being informed of such facts, accepts the property for transportation, and by .negligence delays the same, so that the shipper could not deliver it at the time he had contracted, then the rule as stated above would not be the measure of damages. In such case the true rule is that the carrier is liable for whatever the owner had lost by reason of the failure to deliver in time.
    Agency.—The consignor can select at will his agent or consignee, and when such consignee or agent receives the property it is equally clear that the carrier’s responsibility ceases. The fact that the consignee or agent is also the agent of the carrier does not in the least affect the question; for when he receives the property he thereafter holds it as the agent of the consignor, and not as the agent of the carrier.
    Appeal from Uavarro county. Opinion by Watts, J.
    Statement.— This is a suit brought by the plaintiff, T. B. Hogg, against the defendant, the Houston & Texas Central Bailroad Company, for damages resulting from the loss of a quantity of fruit trees shipped by the plaintiff on defendant’s road; said loss being occasioned, as alleged by plaintiff, by the negligence of defendants in forwarding said trees and in delivering the same to the plaintiff’s agent at their place of destination. The record' discloses the following-facts, about which there is no controversy:
    That the plaintiff, in May and June, 1874, being the owner of a nursery and engaged in selling young fruit and ornamental trees, made a contract of sale of a, large amount of said trees to various parties in Hill count}?; the said trees were to be delivered to the purchasers at Hillsboro, in Hill county, on the 24th of December, 1874. The nursery of the plaintiff was situated near Brenham, in the county of Washington, and Hillsboro, where said trees were to be delivered, is some forty miles from Corsicana, the nearest depot on the line of the defendants’ railway. In pursuance of his contract plaintiff caused the bill of trees for the Hill county parties to be prepared for shipment, and the same, packed in three cases and one bale, were delivered to the defendants’ agent for shipment at Brenham, on the 12th of December, 1874, the charges, 817, being prepaid, and the receipt of the said agent being taken therefor. It is claimed by the plaintiff that this shipment was not delivered to him until the 28th of December, 1874, more than two weeks after they were shipped at Brenham, and four days later than the time they were to be delivered to the purchasers in Hill county.
    The responsibility for this delay was one of the main points in controversy in the court below. The case was tried November 22, 1875, and resulted in a verdict and judgment for the appellee for $866.50, which is before the court by appeal. The errors assigned will be sufficiently noticed in the opinion.
   Opinion.—The appellant objects to the charge of the court with respect to the measure of damages, and also the admission of certain evidence as to the contract price of the fruit trees, damages to which is the subject-matter of this litigation.

Where the property is intended for .sale, and the carrier unreasonably delays the same, it is universally accepted, as a general rule, that the measure of damages is the difference between the market value of the property when it should have arrived, and the market value when, in fact, it ivas delivered; arid to the full extent of this difference the carrier is liable for delay in the transportation of the property.' And such is the rule of damages that in the absence of special facts must be held to have been in the contemplation of the parties at the time of the shipment. Sissons v. The Railroad, 14 Mich., 488; Vicksburg, etc., R. R. v. Ragsdale, 46 Miss., 458; Ingledow v. The Railroad, 7 Gray, 86; Weston v. The Railway, 54 Me., 376; Peet v. The Railway, 20 Wis., 594.

However there may be, and doubtless are, cases of frequent occurrence, in which the shipper may, for special or particular reasons, desire the transportation of his property to be hastened, as where he had contracted to sell the same at a given price, to be delivered within a designated time. And if the carrier, after being informed of such facts, accepts the property for transportation, and by negligence delays the same, so as that the shipper could not deliver it in the time he had contracted to do, then the rule as stated above would not be the measure of damages. In such cases the true rule is that announced in Deming v. The Railroad, 48 N. H., 455, which is, in effect, that the carrier is liable for whatever the owner had lost by reason of the failure' to deliver in time; and this loss is generally the difference between the contract price and the market value of the property at the time it was delivered. To authorize a recovery for such damages as are special and not the natural consequences of the delay, the shipper or owner must aver and show the facts and notice thereof, by the carrier at the time of the shipment. Furlong v. Polly, 30 Me., 491; Lindley v. Dempsey, 45 Ind., 246; De Forrest v. Lute, 16 John., 122; Olmstead v. Burke, 25 Ill. 86; Vicksburg, etc., R. R. v. Ragsdale, supra.

In this case the appellee sought to recover special damages on the ground that he had contracted the fruit and ornamental trees at a certain price to parties in Hill county, to be delivered by a given time, and that by reason of the delay in the transportation thereof by the appellant, he was prevented from delivering the trees within the time, and that the parties, when tendered, refused to take the same, whereby nearly the entire lot became a total loss to him. There is nothing in the record showing or tending to show that the appellant or its agent had any notice of these facts at the time the packages were received for shipment, or, in fact, at any other time prior to the institution of this suit.

Upon the trial the court, over the objections of appellant, permitted the introduction of evidence tending to establish the said facts, from which it is claimed the special damages arose; and the court so charged the jury, as to the rule of damages to be applied in the case, as to authorize them to consider and act upon the special facts, in estimating the amount of appellee’s damages, and, therefore, allowed the appellee damages which were not the ordinary sequence of the delay, and, therefore, not to be taken as within the contemplation of the parties at the time of the shipment.

Obviously, the court erred in the ruling and charges complained of, and that these errors resulted injuriously to appellant upon the trial below is apparent.

In the absence of notice upon the part of the company, at the time of the shipment, of the existence of the special facts asserted in appellee’s pleadings, and to which his evidence was directed, the true measure of damages would be the difference between the market value of the property at Corsicana, at the time it should have arrived, and its market value at the time it was delivered. And if, upon another trial, it is shown that the company was notified of these special facts at the time of the shipment, then the measure of damages would be the difference between the contract price, that is, the price appellee was to receive from the Hill county parties, and the market value of the property at Corsicana at the time of its delivery at that place. Again it is shown that the property was transported to, and arrived at, Corsicana in the usual and ordinary time, and was held from the 16th to the 27th of December without any notice of its arrival being given to appellant, or any attempt being made to give such notice. It is claimed that under such facts the company held, and were responsible for, the property as common carrier, and liable as such. If these were the facts, the rule of law as contended for is correct. P. D., art. 455; H. & T. C. R. R. Co. v. Adams, 49 Tex., 748.

It is claimed by appellant that the appellee caused the property to be consigned to the care of the railroad agent at Corsicana, and that when it reached that place and was unloaded that it was no longer held by the company, but that it was thereafter held by the agent of the appellee, Watson, witness for appellee, testified that the packages were marked “ T. B. Hogg, Hilsboro, care B. B. Agent, Corsicana.” Appellee’s attorneys, in their brief, claim bills of lading fail to show it.

The consignor can select his agent or consignee; and when such agent or consignee receives the property, the carrier’s responsibility ceases.

And the fact that the consignee or agent is also the agent of-the carrier does not affect the question, for when he receives the property he therefore holds it as the agent of the consignor and not as agent for the carrier. See Price v. Oswego R. R. Co., 58 Barbour (N. Y.), 599; Mobile & Girard R’y Co. v. Prewitt, 46 Ala., 63; McErwin v. G. M. & S. R. R. Co., 33 Ind., 368. If upon another trial it appears that the railroad agent at Corsicana was the consignee or agent of the consignor with respect to said shipment, then the company would not be liable for any delay in delivering the property after its arrival at Corsicana, that is, after it reached the possession of such agent.

Reversed and remanded.


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    C. S. Hutcheson v. L. G. Clipper et al.
    (No. 850.)
    Garnishment — Affidavit for.— An affidavit for garnishment in desoribing a judgment against a surety on an appeal bond need not state directly that a mandate from the supreme court had been filed in the district court. Allegations that executions had been issued upon the judgment by the clerk of the district court would involve the presumption that a mandate had been filed.
    Requisites of.
    Appeal from Montgomery county. Opinion by Watts, J.
    Statement.— This was a garnishment proceeding commenced in the district court of Montgomery county, on the 19th day of June, 1874, by plaintiff in error against defendant in error.
    The affidavit is in substance as follows: Hutcheson, on November 22, 1866, recovered a judgment against Clipper in that court for $5,728.80. April 7, 1868, Clipper filed his petition for writ of error, and at the same time executed a writ of error and supersedeas bond, with G. B. Madely, James B. Pinkston, John M. Wade and W. W. Goodson as his sureties. March 25, 1870, the supreme court affirmed the judgment and rendered judgment against Clipper and his said sureties for the amount thereof; that said judgment is now in force and effect and in no way satisfied or discharged, except the sum of $5,219, paid thereon during the year 1870, leaving a balance due and unpaid on said judgment of $2,914; that since 1870 several executions had been issued to the sheriff of Montgomery county on said judgment and returned not satisfied because no property could be found; that Clipper, Madely, Pinkston, Wade and Goodson, nor either of them, have any property within the knowledge of affiant, out of which the balance of the judgment could be made. And that Messrs. Hooker & Morris, to wit, W. C. Hooker and A. W. Morris, were indebted to defendant, J. M. Wade, or had effects of his in their pos- . session.
    September 18,1874, garnishees answered and filed a motion or exception to the affidavit for garnishment on the grounds:
    1. The affidavit does not show the existence, before any proper judgment against Wade, by any court of competent jurisdiction.
    2. The affidavit failed to show that a mandate from the supreme court had been filed in the district court.
    Wade also appeared and filed exceptions to the same effect. The answers to the writ of garnishment need not be noticed.
    June 21, 1875, the cause was called for trial and the exceptions to the affidavit for the writ of garnishment were sustained by the court and the cause was dismissed.
    Hutcheson brings the case before the court by writ of error, and assigns as error the sustaining of the motion or exceptions to the affidavit and dismissing the cause.
   Opinion.— This proceeding was' had under article 3785, P. D., which is, in substance, that when a judgment has been rendered by any court, the plaintiff, his agent or attorney, may make an affidavit before the court or clerk thereof in which the judgment was obtained, in effect, as therein required, a writ of garnishment should issue.

Appellee, Wade, was not a party to the suit of Hutcheson v. Clipper in the district court at the time the judgment was therein rendered against Clipper, but he after-wards made himself a party by signing the writ of error bond as surety. In the exercise of rightful appellate jurisdiction the supreme court subsequently affirmed the judgment of the court below and rendered judgment against Clipper and the sureties on his writ of error bond, and as the supreme court has no original but appellate jurisdiction only, in contemplation of law its judgments are the judgments of the district courts in which the suits were brought, etc.

Such judgments can only be carried into execution in the courts of original jurisdiction, where the means to accomplish that end are provided by law.

When a mandate, which is the official evidence of the affirmance, has been filed in the court below, the clerk thereof is required to issue execution, without furthe r action upon the part of the district court. P. D., art. 1571.

And it has been ruled that the clerk has no authority to issue an execution until the mandate has been filed in the district court.

It is claimed that the affidavit for the writ in this case is fatalty defective because it is not therein stated that a mandate had been filed in the district court, and it was so held by the court below. The rendition of the judgment by the district court, the execution of the writ of error bond, the affirmance of the judgment, the issuance of several executions upon the same, several payments made upon the judgment, and the lapse of three years since the affirmance of the judgment by the supreme court, were all shown by the affidavit. We can perceive no good reason why the affidavit should state that the official evidence of affirmance by the supreme court had been filed in the court below; it seems that the affidavit sufficiently shows the existence of a subsisting judgment against Wade and others, and as to whether a mandate had or had not been filed is a matter of evidence, to be produced upon the trial.

Again, the writ of error bond, when forfeited, had the force and effect of a judgment; it will hardly be denied that the affirmance of the judgment by the supreme court was a declaration of forfeiture, and from thence the same had the force and effect of a judgment.

It is equally clear that what is meant by the term force and effect of a judgment” is the force and effect of a judgment of the district court, for it has been held that from the time of the forfeiture that, as a judgment, it took the statutory lien upon all the lands owned by the obligors, situated in the county where the original judgment had been rendered. Robertson v. Moore, 25 Tex., 442; Berry v. Shuler, 25 Tex. Sup., 148.

The object and purpose of the statute is to extend the garnishment process, to aid in obtaining the result of the judgment, and it must be held that the same, in its spirit and intention, includes every species of moneyed judgments.

From the facts stated in the affidavit it would be presumed that the mandate had been issued and filed in the court, below. Any other conclusion would involve the presumption that the clerk of the district court had acted in violation of his duty and without authority. Here, as in the case of Black v. Epperson, it should be presumed that the mandate 'had been filed prior to the issuance of the executions upon said judgment.

In our opinion the court below erred in sustaining appellee’s motion to quash the affidavit for the writ of garnishment, and that the judgment of the court ought to be reversed and the cause remanded.

       40 Tex., 163.


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    H. & T. C. R. R. Co. v. M. A. Shaw et al.
    (No. 996.)
    Damages—Parties.— Minor children are not necessary parties to a suit against a railroad company for killing their father, and the fact that their mother sues as their next friend could not render the judgment erroneous, as it is for their benefit either way.
    Damages, measure of.— The rule for the measure of damages in such cases is what the jury may think proportioned to the injury resulting from such death.
    Error from Collin county. Opinion by Watts, J.

      ■ Statement.— The following statement is from the brief of plaintiff in error and is substantially corrects
    Defendant in error, Martha A. Shaw, filed her petition in the district court of Collin county on the 14th of December, 1878, in her own right, and as next friend and natural guardian of her minor children, Elizabeth and John Shaw, alleging, in substance, that the said Martha Ann Shaw was surviving wife, and Elizabeth and John Shaw children, of Knowles Shaw, deceased; that defendant was a corporation and common carrier of passengers, operating its railroad from Houston to Dennison, through Dallas and Collin counties; that on the 7th day of June, 1878,Knowles Shaw purchased a ticket of defendant’s agent at Dallas to McKinney, and took passage on defendant’s train, to be transported as a passenger from Dallas to McKinney; but that in consequence of the bad condition of defendant’s railroad and negligent manner of operating said train, the car in which he was riding was thrown from the track, and said Knowles Shaw killed, to their damage $100,000.
    Defendant pleaded a general denial, and specially;
    First. That its road was properly and safely constructed and maintained with due care and diligence, and that the accident was occasioned by an unusual rainstorm.

      Third. That the accident was caused from the breaking of a rail from a latent defect that could not be discovered by any amount of diligence.

      Fourth. That deceased had applied for and received a half-fare ticket, and, in consideration of the reduction of the fare, agreed and contracted to assume all risks of accident. Verdict and judgment for plaintiffs for $11,000.
   Motion for new trial, notice of appeal given, and on the 24th day of May, 1880, defendant below filed its petition for writ of error, and a bond for supersedeas.

It is objected that the court erred in proceeding with the trial of the case when no special or other guardian had been appointed for the minor plaintiffs.

The statute in regulating actions like this provides that “ every such action shall be for the sole and exclusive benefit of the surviving husband, wife, child or children, and. parents of the person whose death shall have been so caused.” And also that “ that the action may be brought by all of the parties entitled thereto, or by any one or more of them for the benefit of all.” B. S., arts. 2903 and 2904.

The law was the same at the time of the accident as at the institution of this suit. Pasch, Dig., art. 16.

Therefore the minor children were not necessary parties to the suit; it could have been prosecuted to judgment by their mother for their use and benefit; and the -fact that she is prosecuting the same as their next friend could not render the judgment erroneous, as the result is the same either way; the suit is being prosecuted for the benefit of the mother and minor children.

After the Bevised Statutes took effect, suits generally could be maintained by minor plaintiffs by next friend, without the necessity of the appointment of a special guardian, and as these statutes were in force at the time of the trial in the court below, the same could be maintained by the minors in the name of their mother as next friend; for it is provided that where the course of practice or procedure for the enforcement of rights or conducting of suits has been changed, that the same shall be conducted as near as may be in accordance with the Bevised Statutes. B. S., Final Title, secs. 5 and 6.

The proposition that the declaration of Peters, an employee of the company, made after and not connected with the accident, was admitted in evidence to the injury of the company, is not sustained by the record.

Peters, a witness for the company, testified that he was the section boss on that portion of the road where the accident occurred, and at that time the track was in good condition. On cross-examination he was asked, “Did you not say in the town of McKinney, about a week or such a matter after the Wilson creek wreck, to one Ogden, in the presence of one Moore, that you could not keep the roadbed and track in good condition because the defendant company failed to furnish the necessary iron and ties?”

The company objected to the witness answering the question on the ground that it was not bound by Peters’ declarations thus made; the court held that the company would not be bound by the declarations of Peters, but that the question was proper as laying a basis for the impeachtíient of the witness. The bare statement of the proposition furnishes the answer, for the right thus to impeach or to lay the foundation for the impeachment of a witness is indisputable.

The court did not err in refusing the special instructions asked by the company. So far as applicable to the case made by the evidence, the same were embodied in the clear and admirable charge of the court, which was quite as favorable to the plaintiff in error as the law authorized.

It is claimed that the finding of the jury is against the evidence and excessive. The suit was for actual damages, and the statute provides that in this class of cases “the jury may give such damages as they may think proportioned to the injury resulting from such death.” B. S., art. 2909.

The evidence clearly shows that the accident resulting in the death of Shaw was the result of negligence and two of the cross-ties supporting the end of the iron rail having become so decayed that, as expressed by the witness, they could be pulled to pieces with the fingers. These rotten ties could furnish no support whatever to the fish-bars and rail, hence’the same were broken, and the cars precipitated down an embankment some eighteen or twenty feet in height. The company was bound to the strictest diligence in maintaining its road-bed in good condition, and providing against such defects therein as could be ascertained and discovered by due diligence. The condition of the track, as shown by the evidence, was inexcusable, and more especially so when it is remembered that it was at a point upon the company’s line where the embankment and curve added so much to the danger usually attending this mode of travel.

It appears from the record that Shaw was a robust man of middle age, and was making about $3,000 a year. At that rate, deducting reasonable expenses, a few years. would cover the sum of the verdict.

In the case of The H. & Gf. 1ST. E. E. Co. v. Eandall, 50 Tex., 261, the late Chief Justice Moore said: “The law furnishes no fixed or defined standard for the guidance of the jury in awarding compensation for such injuries. Unless we say that an action should not lie for an injury for which there is no pecuniary measure of comparison, the amount of damages to be awarded in such cases must be left to what may reasonably be inferred to be the general sense of right and justice of the community, as indicated by the verdict of a jury of twelve men, ordinarily composed of persons engaged in different occupations and pursuits and representing all grades and conditions of social life.”

The only rule prescribed by statute in the class of cases to which this belongs for measuring the damages is such as the jury “ may think proportioned to the injury resulting from such death.” And while this rule may seem to be indefinite and uncertain in its application, still it is the most certain and specific that the law-makers have been able to devise.

We are of the opinion that the verdict of the jury was in accordance with the law and that the same is sustained by the evidence; therefore the judgment of the court below ought to be affirmed.'

Affirmed.